DISTRIBUTED CARBON TERMS OF SERVICE

Date Effective: July 20, 2021

Thank you for signing up to the Platform, which is owned and operated by DISTRIBUTED CARBON PTY LTD ACN 635 433 886 of c/- Oreon Partners, 28 Dequetteville Terrace, Kent Town SA 5067 (Distributed Carbon). 

RECITALS: 

A. Distributed Carbon conceptualises, designs and builds a unique and data driven carbon financial verification platform to allow carbon financial risks to be better understood by the market (Platform). 

B. You (you, your or Client) wish to access the Platform, and Distributed Carbon agrees to provide the Client with access to the Platform, on the terms and conditions of this Agreement. 

When you access and use the Platform at https://www.emmi.io, and any associated apps, sites and social media channels, you are confirming that you have read this Agreement and are agreeing to be bound by this Agreement.  If you have any concerns about this Agreement, you should not use or access the Platform. 

IT IS AGREED: 

1. DEFINITIONS  ​

In this Agreement: 

Commencement Date means the day after the end of the Free Trial Period. 

Confidential Information means: 

a. the Platform Output; 

b. know-how, trade secrets, ideas, concepts, technical and operational information confidential to or used by either Party; 

c. information concerning the affairs or property of either Party or any business, property or transaction in which either Party may be or may have been concerned or interested; 

d. any Platform Data; 

e.  the Platform algorithms; 

f. information about the terms of this Agreement;  

g. any information relating to the Intellectual Property; and 

h. information which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential to: 

     i. either Party; or 

     ii. any third party with whose consent or approval either Party uses that information. 

Emmi Score means the proprietary algorithm that combines 12 financial metrics with carbon emissions to provide a universal benchmark that determines a company’s current financial exposure to a carbon constrained economy and the future emission pathway needed to transition to net zero. 

 

Free Trial Commencement Date means the date that the Client signed-up to access the Platform on the emmi.io website.  

Free Trial Period means the period of 30 days from, and including, the Free Trial Commencement Date. During the Free Trial Period the client will have access to the Premium product. 

Intellectual Property means all present industrial and intellectual property rights, including without limitation: 

a.   inventions, patents, copyright, trade business, company or domain names, rights in relation to registered designs, registered and unregistered trade marks, know how, trade secrets and the right to have confidential information kept confidential, and any and all other rights to intellectual property which may subsist anywhere in the world; and  

b.   any application for or right to apply for registration of any of those rights. 

Party means each of the parties to this Agreement, and Parties has a corresponding meaning. 

Permitted Purpose means the purpose of the Client using the Platform, and the Platform Output, for the Client’s own internal purposes, and not for any other commercial purpose (for example, republishing, repackaging, or reselling) without obtaining a licence to do so from Distributed Carbon. 

Platform Data means any information or data collected by Distributed Carbon relating to the Client’s use of the Platform during the Term, including, but not limited to, any data or information collected by Distributed Carbon under clause 3(c) of this Agreement. 

Platform Output means any information generated by or on behalf of the Client from the Client’s use of the Platform including, but not limited to, the Emmi Score, portfolio analysis and/or company analysis. 

Product Type means the product subscribed for by the Client. The list of Product Types available is set out in Schedule 1. 

2. TERM 

a. This Agreement commences on Free Trial Commencement Date and continues until terminated in accordance with the terms of this Agreement (Term). 

b. This Agreement may be cancelled at any time during the Free Trial Period, in accordance with clause 10 of this Agreement. 

c.  If the Agreement is not cancelled during the Free Trial Period, the Agreement will remain in force from the Commencement Date for an initial period of one-year (Initial Term), and shall thereafter automatically renew for successive one-year periods unless: 

      i. either party notifies the other at least thirty (30) days before expiration of the next anniversary of the Commencement Date that the Agreement is not to be renewed beyond that date – in which case the Agreement shall be terminated with effect from the day prior to the anniversary of the Commencement Date; or 

      ii. the Agreement is terminated in accordance with clause 10. 

3.  PLATFORM TERMS AND CONDITIONS 

a.  Distributed Carbon undertakes and agrees, during the Term, to: 

     i. provide the Client with access to the Platform in accordance with the Client’s Product Type subscription, as chosen on the emmi.io website; and 

     ii. provide the Client with reasonable assistance in relation to the Platform, where required (recognising the Platform is intended to be a “self-serve” utility for traditional Clients). 

b.  The Client undertakes and agrees: 

     i. to pay the consideration to Distributed Carbon in accordance with clause 4 (Consideration); and 

     ii. not to: 

                  A. copy the Platform, except where such copying is incidental to normal use of the Platform (as determined by Distributed Carbon); 

                 B. copy the Platform Output, other than for the Permitted Purpose; 

                 C. rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Platform; 

                 D. make alterations to, or modifications of, the whole or any part of the Platform, or permit the Platform or any part of it to be combined with, or become incorporated in, any other programs or software; 

                 E. disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Platform; 

                 F. provide or otherwise make available the Platform in whole or in part (including object and source code), in any form to any other party without prior written consent from Distributed Carbon;  

                 G. use the Platform in a way that could damage, disable, overburden, impair or compromise the Platform;  

                 H. collect or harvest any information or data from the Platform, or attempt to decipher any transmissions to or from the servers relating to the Platform; and 

                 I. without the prior written consent of Distributed Carbon, use the Platform Output, or any part of it, for any purpose other than for the Permitted Purpose.

 

c.  The Client consents to Distributed Carbon: 

    i. collecting and using technical information about the hardware and peripherals that the Client uses to access the Platform;  

    ii. monitoring any or all of the Client’s conduct while using the Platform, and collecting information associated with the Client’s behaviours; and 

    iii. collecting and using anonymised aggregated data for its own analytical purposes. 

4. CONSIDERATION 

a.  The Client must pay the Consideration to Distributed Carbon for the duration of the Term, together with any sales, use, excise, services, consumption, goods and services, and other applicable taxes.  

b.   If this Agreement renews for any period beyond the Initial Term, the Consideration to be paid by the Client to Distributed Carbon for the renewed Term will be: 

    i.the proposed rates for the Client’s Product Type subscription as at the commencement of the renewed Term and as notified by Distributed Carbon to the Client by no later than 30 days prior to the commencement of the renewed Term; or 

    ii. if Distributed Carbon has not notified the Client of the proposed rates under clause 4(b)(i) – the Consideration payable by the Client immediately prior to the commencement of the renewed Term increased by the greater of: 

      A. 3.00%; or  

      B. the annual percentage increase in Australia’s Consumer Price Index (All Groups) for the previous twelve months. 

c.  The Client agrees to pay Distributed Carbon via credit card (in respect of which the Client will be required to set up a credit card payment arrangement with Distributed Carbon), and upon creation of that payment arrangement, the Client hereby authorises Distributed Carbon to charge the Client’s credit card, on a monthly basis, during the Term, for the amounts due and payable in relation to the Client’s Product Type subscription, and any other components ordered by the Client from time to time, including, but not limited to, those under clause 4(e). 

 

d. If the Client is unable to pay via credit card, the Client will receive a periodic invoice from Distributed Carbon for the Product Type subscription. The invoiced Consideration must be paid in full to Distributed Carbon within 30 days of receipt of such invoice.  

 

e. At any time during the Term, the Client may order additional components which are provided by Distributed Carbon (and separate from the components provided through the Client’s Product Type subscription) in the amount, at the time and in the manner specified by Distributed Carbon. Upon Distributed Carbon providing the Client with access to such additional components, the Consideration payable by the Client to Distributed Carbon will be deemed to be amended from that date to reflect the additional component(s) ordered. Distributed Carbon may require the Client to execute a revised Agreement for extensive additional components or Product Types.  

 

f. If the Client believes an invoice issued by Distributed Carbon is incorrect, the Client must notify Distributed Carbon in writing within 60 days of the date of the invoice. Otherwise, the Client will be deemed to have agreed to the accuracy of the invoice.  

 

g.  If the Client does not pay the invoiced and undisputed Consideration in full within the above grace-period following the due date of the invoice, the Client will owe Distributed Carbon an additional amount of 1% per month on all overdue undisputed amounts, compounded monthly, beginning after the grace-period, along with Distributed Carbon’s reasonable collection costs and associated legal fees.  

5.  INTELLECTUAL PROPERTY AND DATA 

a.  The Parties hereby acknowledge and agree that, unless otherwise agreed in writing by the Parties: 

      i. all rights, title and interest in the Intellectual Property relating to the Platform, and the Platform Data, are (from the date of creation), and will remain, the property of Distributed Carbon; and 

      ii. nothing contained in this Agreement constitutes an assignment of the  Intellectual Property of either Party to the other Party.  

 

b.  Distributed Carbon grants to the Client, during the Term, a non-exclusive, non-transferable, non-sublicensable, revocable, limited, royalty-free licence to use the Intellectual Property relating to the Platform for the Permitted Purpose only.  

c.  The Client grants to Distributed Carbon a non-exclusive, perpetual, irrevocable, transferrable, sublicensable, royalty free, worldwide right to use the Client’s Intellectual Property for the purposes of: 

      i. listing the Client as a “customer” of Distributed Carbon on Distributed Carbon’s website; and 

      ii. using the Client’s Intellectual Property on Distributed Carbon’s website and in relation to other marketing promotions. 

6. CONFIDENTIAL INFORMATION 

The Parties undertake and agree to not disclose at any time, during or after the Term, to any person, the Confidential Information, except: 

a.  with the prior written consent of the owners of the Confidential Information; or 

b.  for the purposes of obtaining legal and/or financial advice and such advisors have been informed of the Party’s obligations under this Agreement; or  

c.  where required by law. 

7.  OUR WEBSITE AND SERVICE DO NOT PROVIDE FINANCIAL ADVICE 

a.  While we use reasonable efforts to ensure the accuracy and completeness of the information included on our Platform, any information included on the Platform is not financial advice. The information on our Platform is general in nature and may not be suitable for your individual objectives, financial situation or needs.  

b.  The information on our Platform is not in any circumstances to be considered as a substitute for professional financial advice.  

c.  We do not represent that we are permitted to provide financial advice in each jurisdiction from which you may view or access the Platform.  

d.  Distributed Carbon is a Corporate Authorised Representative of the AFSL holder SA Capital Pty Ltd (AFSL Number: 291787). 

8.  SECURITY 

a.  The Client’s access to the Platform may be subject to using passwords, smartcards, or other security devices (Security Credentials) provided to the Client by Distributed Carbon. Such Security Credentials must not be disclosed or provided by the Client to any third parties (without Distributed Carbon’s consent).  

b.  Distributed Carbon may change the Client’s Security Credentials at any time for security reasons with notice to the Client.  

c. Each party will use reasonable efforts to:  

      i. scan the Platform and its related systems for any code or device which is designed or intended to impair the operation of any computer or database or prevent or hinder access to, or the operation of, any program or data, using detection software generally accepted in the industry;  

      ii. secure its computing environments according to generally accepted industry standards to ensure that the Platform cannot be accessed by any unauthorized person or malicious software; and  

      iii. immediately remedy any security breach of which it becomes aware. 

9. PLATFORM UPDATES 

a.  Distributed Carbon may modify the Platform from time to time but will not change the fundamental nature of the Platform without providing written notice to the Client. 

b.  If Distributed Carbon makes a change to the hardware, software, data or communications requirements, formats or protocols for the Platform that will affect the Client’s systems or ability to continue using the Platform, then Distributed Carbon will, to the extent practical under the circumstances, provide the Client with at least 30 days’ notice of such change. If a third-party provider to Distributed Carbon initiates such a change, Distributed Carbon will give the Client as much notice of the change as is reasonably practicable in the circumstances. 

10. TERMINATION 

a.  This Agreement may be terminated: 

   i. by the Client within the Free Trial Period, for any reason, by written notice to Distributed Carbon. If the Agreement is terminated by the Client in this manner, the Agreement is terminated on the date Distributed Carbon receives such written notice and no Consideration will be payable by the Client to Distributed Carbon; 

   ii. by the Client any time after the end of the Free Trial Period: 

      A. no later than 30 days prior to the yearly anniversary of the Commencement Date by written notice to Distributed Carbon.  If the Agreement is terminated by the Client in this manner, the Agreement is terminated on the day prior to the next anniversary of the Commencement Date and Consideration will be payable by the Client to Distributed Carbon with respect to the period up to that termination date; and 

     B. within 30 days prior to the yearly anniversary of the Commencement Date by written notice to Distributed Carbon.  If the Agreement is terminated by the Client in this manner, the Agreement is terminated on the day prior to the anniversary following the next anniversary of the Commencement Date and Consideration will be payable by the Client to Distributed Carbon with respect to the period up to that termination date.  That is, in this situation, the Term will automatically be extended for a further 12 months from the next anniversary of the Commencement Date. 

   iii. at any time by Distributed Carbon giving the Client 30 days’ written notice.  If the Agreement is terminated by Distributed Carbon in this manner, the Client will only be required to pay the Consideration in respect of the period up to and including that termination date. 

 

b.  If the Client requests the cancellation of any portion of their Product Type subscription that the Client is permitted to cancel, the Client’s Consideration and Product Type will be deemed to be amended and reduced to reflect such cancellation upon agreement by Distributed Carbon.  

c.  When this entire Agreement terminates, for whatever reason, all Schedules will terminate on that same date.  

d.  When all or any portion of this Agreement terminates, for any reason, the Client must:  

     i. delete all data, software and documentation, and cease using the Platform and Platform Output, associated with the terminated service, except copies that the Client is required to keep for legal or regulatory compliance purposes.  Information retained for legal or regulatory compliance purposes may not be used for any other purpose, nor used in any way not permitted by the Agreement;  

     ii. promptly certify its compliance with this requirement in writing, if Distributed Carbon requests; and 

     iii. pay Distributed Carbon all amounts due (e.g. unpaid Consideration, accrued interest on overdue amounts, and any other costs imposed herein).  

11.  LIMITATION OF LIABILITY 

 

a. The Client acknowledges and understands that: 

      i. the Platform has not been developed to meet the Client’s individual requirements, and it is the Client’s responsibility to ensure that the processes and functions of the Platform meet the Client’s requirements; 

     ii. in providing the Client with access to the Platform, Distributed Carbon are not providing any financial or investment advice to the Client; 

     iii. the Client’s use of the Platform is done at the Client’s own risk, and Distributed Carbon makes no representations or warranties (nor does the Client rely on any representations or warranties from Distributed Carbon) regarding the Platform, its processes or functions, the Platform Output and information or data provided to the Client through the Platform; 

    iv. Distributed Carbon have no liability to the Client for any loss of profit, loss of business, business interruption, or loss of business opportunity deriving from the Client’s use of the Platform or the Platform Output;  

    v.  Distributed Carbon assume no duty of care to the Client or any other party who relies on anything provided for by the Platform; and 

    vi.  Distributed Carbon’s maximum aggregate liability under or in connection with this Agreement (including the Client’s use of the Platform and the Platform Output) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to $1. 

 

b.  The Client indemnifies Distributed Carbon against any loss suffered or incurred by Distributed Carbon arising from or in relation to: 

   i. the Client’s use of the Platform and/or the Platform Output; and 

   ii.  any breach of this Agreement by the Client. 

12. NOTICES 

a.  All notices to Distributed Carbon under this Agreement must be in writing to sales@emmi.io

b.  All notices to the Client under this Agreement must be in writing to the Client email address provided on subscription to the Platform.  

c.  A Party may provide notice to the other Party via email. 

13. EVENTS OUTSIDE OUR CONTROL 

a.  Distributed Carbon will not be liable or responsible for any failure to perform, or delay in the performance of, any of its obligations under this Agreement that is caused by any act or event beyond Distributed Carbon’s reasonable control, including failure of public or private telecommunications networks (Event Outside Our Control). 

b.  If an Event Outside Our Control takes place that affects the performance of Distributed Carbon’s obligations under this Agreement: 

      i. Distributed Carbon’s obligations under this Agreement will be suspended and the time for performance of Distributed Carbon’s obligations will be extended for the duration of the Event Outside Our Control; and 

      ii. Distributed Carbon will use its reasonable endeavours to find a solution by which Distributed Carbon’s obligations under this Agreement may be performed despite the Event Outside Our Control. 

14.  GENERAL

 

a.  The terms of this Agreement may only be varied: 

      i. in writing signed by the Parties; or 

      ii. by Distributed Carbon, provided that Distributed Carbon notifies the Client of any such variation in writing. 

b.  A Party may, without the written consent of the other Party, assign its rights or obligations under this Agreement to a wholly-owned subsidiary of that Party provided that the assigning Party first provides written notice of such assignment to the other Party. In all other cases, a Party may not assign its rights or obligations under this Agreement without the written consent of the other Party. 

c.  Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect. 

d.  This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument. 

e.  This Agreement must be governed and construed in accordance with the laws applicable in South Australia. The Parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia.