General Terms & Conditions
General terms and conditions relating to the services of Climate Neutral Group B.V. (Incorporated in the Netherlands), an external company registered in South Africa.
Registered with the Companies and Intellectual Property Commission of South Africa, with registration number 2012/051329/10.
PART A: GENERAL TERMS AND CONDITIONS
In these general terms and conditions, key terms are defined as follows:
- Climate Neutral Group: Climate Neutral Group B.V., with its registered office in Zeist and/or CNG Consultancy B.V., with its registered office in Utrecht, and any of their subsidiaries, branches and external companies, specifically including Climate Neutral Group B.V. (South African external company registration number 2012/051329/10);
- Other Party: the natural or legal person with whom Climate Neutral Group makes an agreement;
- Carbon Credit Registry: Climate Neutral Group’s registration of Carbon Credits purchased by its clients, or the registration of Carbon Credits under the name of the client in an independent registry, at the request of Climate Neutral Group;
- Carbon Offsetting: the purchase of an agreed quantity of Carbon Credits for or under the name of the Other Party and purchaser, in Climate Neutral Group’s carbon registration;
- Carbon Credit: rights in relation to 1 (one) ton of reduced CO2 emission or 1 (one) ton of sequestered CO2, this being the “Unit” defined in the administrative regulations of the Registry;
- Consultancy: the consulting and advisory services offered by Climate Neutral Group to the Other Party in accordance with the terms of an agreement (as per clause 2 below) and these general terms and conditions;
- Registry Account: a CO2 account in the Registry, maintained by Climate Neutral Group;
- Registry: the independent registry in which Climate Neutral Group manages its Carbon Credits. This register may be the Markit Environmental Registry, and/or APX Gold Standard Registry, or another register to be chosen by Climate Neutral Group.
- These general terms and conditions are applicable to all agreements made by Climate Neutral Group with the Other Party with regard to Climate Neutral Group’s service offerings of Carbon Offsetting and Consultancy. The general terms and conditions are also applicable to all further agreements with the Other Party and to modified or supplementary agreements, to the exclusion of any other general terms and conditions, unless the contrary is agreed in writing prior to the agreement.
- An agreement is only established with Climate Neutral Group when the agreement is signed by the Other Party and Climate Neutral Group.
- Offer and acceptance
- Subject to the terms and conditions of this Agreement, the Other Party hereby appoints Climate Neutral Group to perform the services as detailed in an agreement/s (contemplated in clause 2.1 above), as read with these terms and conditions, and with effect from the signature date of these terms and conditions by both parties on a non-exclusive basis. Climate Neutral Group hereby accepts such appointment.
- Unless the contrary is expressly stated, all the offers and statements of Climate Neutral Group in relation to providing Carbon Offsetting, Consultancy or other services are made free of obligation, and each is one whole as regards the price and other conditions.
- Climate Neutral Group is free to accept or decline requests to provide Carbon Offsetting, Consultancy or other services without stating a reason.
All the prices stated by Climate Neutral Group in any agreement/s with the Other Party and any invoices issued to the Other Party are stated exclusive of South African Value Added Tax (VAT) and other levies, taxes or charges, whether levied by the government or other bodies, unless the contrary has been expressly agreed in writing.
- Payment of the agreed price must be made in the currency in which the price is quoted within 14 (fourteen) days of the invoice date.
- Failure to make payment within 14 (fourteen) days of the invoice dates and failure to remedy such non-payment within 10 (ten) days of being requested, in writing, to do so by Climate Neutral Group, may result in cancellation of this agreement at the sole election of Climate Neutral Group and the Other Party shall have no claim of any nature against Climate Neutral Group as a (direct or indirect) result of such cancellation or otherwise.
- In the event of non-payment, late payment or incomplete payment, the Other Party is liable for all costs that Climate Neutral Group reasonably incurs in the collection of such outstanding payments from the Other Party (including any legal costs on an attorney-client basis). This will include interest for late payment at a rate of 1.5 percent per month or part of a month, calculated from the due date (subject to a minimum charge of R250). The Other Party will be liable from the moment of non-payment, late payment or incomplete payment.
- Climate Neutral Group is entitled to suspend all its obligations under the agreement, if the Other Party remains in default of timely payment or if Climate Neutral Group has a reasonable belief that the other party will fail to meet its payment obligations. Climate Neutral Group shall not be liable for any claims, loss or damage that the Other Party may suffer from such a suspension of its obligations.
- Payment of the amount owed by the Other Party to Climate Neutral Group shall be made without any deferment, discount, deduction or set-off against any claim which the Other Party has or considers it has against Climate Neutral Group, unless the contrary has been agreed in writing.
- Duration of the agreement
After the termination of an agreement between Climate Neutral Group and the Other Party, these general terms and conditions shall continue in force and effect, in so far as they are relevant. This includes, but is not limited to, clauses 20.4 and 8.
- Guarantee and limitation of liability
- Subject to the remaining provisions of this clause 8 below, Climate Neutral Group guarantees the Carbon Offsetting it provides but does not provide any guarantee in respect of Consultancy services.
- Climate Neutral Group shall take all reasonable measures to ensure the accuracy of the calculations of carbon emissions it performs based on data provided by the Other Party and third parties. Climate Neutral Group shall be entitled to rely upon the accuracy and correctness of all data provided to it by the Other Party and/or any third parties for purposes of calculating such carbon emissions or making any determinations with regard to Consultancy, and shall not be liable for any claims, damage or loss suffered by the Other Party (or the third party providing such data) or any threats of such claims, damage or loss, howsoever arising, due to any inaccuracy, misrepresentation and/or falseness of the whole or any portion of such data.
- Climate Neutral Group cannot guarantee the accuracy of the descriptions “climate-neutral” or “carbon-neutral.”
- Climate Neutral Group expressly excludes any liability for any claims, loss and/or damage, from whatever cause, including all direct and indirect damage, such as consequential losses or trading losses that the Other Party may suffer or may be threatened with, save where such claims, loss and/or damage arise directly from the gross negligence and/or wilful misconduct of Climate Neutral Group, its directors, employees and agents. Notwithstanding the above, Climate Neutral Group’s total liability in terms of this clause 8.4 is strictly limited to the amount received by Climate Neutral Group from the Other Party under the relevant agreement in the relevant calendar year, excluding VAT, up to a maximum of R200,000 (two hundred thousand South African Rand).
The Other Party indemnifies Climate Neutral Group, its directors, employees and agents against all claims by third parties, including the costs of legal representation, and furthermore indemnifies Climate Neutral Group against all claims from third parties relating to loss and/or damage resulting from the implementation or non-implementation of Carbon Offsetting, the use or reliance upon the Consultancy services, the use of CO2 implementations, and loss and/or damage relating to the implementation of any agreement concluded between the Other Party and Climate Neutral Group.
- Force majeure
- 1 If Climate Neutral Group should temporarily be unable to comply with its obligations, as a result of force majeure (by which is meant all causes and circumstances beyond the influence of Climate Neutral Group, including, but not limited to, default on the part of the supplier of CO2 credits to Climate Neutral Group), the Other Party is not entitled to dissolve the agreement between the parties.
- Climate Neutral Group shall, within 14 (fourteen) Business days of a force majeure situation arising, send notice to the Other Party informing them of such situation.
- In a situation of force majeure, Climate Neutral Group’s duty to meet its obligations under the agreements it has made lapses, and it is entitled in its sole and absolute discretion to terminate the agreement, without the Other Party being entitled to any form of compensation, discount or set-off for loss or damage.
- If the force majeure situation lasts more than 6 calendar months, the Other Party is also entitled to terminate the agreement on written notice to Climate Neutral Group, without any obligation for Climate Neutral Group to recompense loss or damage of any sort. Amounts paid to Climate Neutral Group by the Other Party at the time of a termination as contemplated in paragraphs 3 and 9.4, may be refunded by Climate Neutral Group, in Climate Neutral Group’s sole and absolute discretion, if and only in so far as the agreed CO2 Offsetting concerned has not yet been provided at that time.
- Partial nullities
If any passage in these general terms and conditions or any component of an agreement made by Climate Neutral Group should at any time be declared illegal or null and void, the remaining provisions of the general terms and conditions and the agreement made shall in other respects remain in force. In such a case, the parties will use their best commercial endeavours to substitute such illegal or null and void provisions with alternative provisions, which match as nearly as possible the intention that the parties had in making the agreement and the intention of these general terms and conditions.
- Transfer of rights and obligations
The Other Party shall not be entitled to cede their rights and/or delegate their obligations under an agreement, including those under these general terms and conditions, or their rights and/or obligations resulting from the Carbon Credit Registry in whole or in part to any third parties, without the prior written consent of Climate Neutral Group.
- Early termination
- Both parties are entitled to terminate an agreement, on 10 (ten) Business Days written notice to the other of them.
- Such termination shall be subject to the provisions of that agreement dealing with the parties’ rights and obligations.
- Disputes and applicable law
- Any dispute arising out of or in connection with this Agreement or the subject matter of this Agreement, shall, in the first instance be decided upon by means of arbitration.
- The arbitration shall be held in Cape Town at either the offices of Climate Neutral Group or its attorneys of record.
- The parties shall endeavour to ensure that it is completed within 80 (eighty) Business Days after notice requiring the claim to be referred to arbitration is given.
- The decision of the arbitrator is final and parties may agree to make such a decision an order of court.
- Parties are not bound to the decision of the arbitrator and may refer the dispute to a court of competent jurisdiction in South Africa.
- Nothing in this clause shall preclude any party from seeking an urgent interdict or urgent relief from a court of competent jurisdiction.
- All agreements made with Climate Neutral Group, including these general terms and conditions, are governed by South African law.
- Confidentiality and Data Protection
- Climate Neutral Group is obliged to preserve the confidentiality of everything made known to it (including its directors, employees, agents and any third party consultants that it may use from time to time) about the Other Party and its business and operations, during or as a result of the implementation of any of the services rendered by Climate Neutral Group in accordance with any agreement/s between it and the Other Party, as read with these terms and conditions. This obligation applies to all information and data (in any format) that Climate Neutral Group knew or should reasonably have known was confidential and/or know that access to it by a third party could harm the interests of the Other Party. This obligation shall not be applicable if Climate Neutral Group makes any such information or data public because it is obliged to do so pursuant to a court order, law or regulation, or if it has obtained specific prior written permission to do so from the Other Party, or where such information or data had become publicly available prior to any disclosure by Climate Neutral Group.
- For purposes of the Protection of Personal Information Act, 4 of 2013 (“POPI”), Climate Neutral Group may be determined to be an operator mandated by the Other Party to process personal information in terms of these terms and conditions and any other agreement/s between them, and in such case will comply with all requirements relating to operators as prescribed by POPI. The Other Party agrees that Climate Neutral Group shall have the right (but shall not be obliged) to process any personal information gained as a result of these terms and conditions and any other agreement/s between them.
- If any party breaches any provision of these terms and conditions and/or any agreement/s which is capable of being remedied, and fails to remedy such breach or to provide a guarantee to the satisfaction of the other party that such breach will be remedied within 10 (ten) Business days of receipt of written notice to remedy such breach, the other party shall be entitled in its discretion to cancel these terms and conditions and any applicable agreement/s by giving written notice to that effect to the defaulting party, which cancellation shall be without prejudice to any other claim such party may have arising from such breach.
- If any party breaches any other provision of these terms and conditions and/or any applicable agreement/s going to the root of such document, and which is not capable of being remedied, the other party shall be entitled in its discretion to cancel these terms and conditions and any applicable agreement/s by giving written notice to that effect to the defaulting party, which cancellation shall be without prejudice to any other claim such party may have arising from such breach.
- The parties choose, as their address for service for all purposes under these terms and conditions and any agreement/s, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses recorded below.
- Any notice or communication required or permitted to be given in terms thereof shall be valid and effective only if in writing, which shall include giving notice by email. Any party may by notice to any other party, change the physical address chosen as its address for service or its postal address or its e-mail address, provided that the change shall become effective on the 7th (seventh) business day from the receipt of the notice by the addressee.
- Any notice to a party:
- sent by prepaid registered post shall be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);
- delivered by hand to a responsible person during ordinary business hours at the physical address chosen shall be deemed to have been received on the day of delivery; and
- sent by email to its chosen e-mail address stipulated below shall be deemed to have been received on the date of sending (unless the contrary is proved).
- Notwithstanding anything to the contrary, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address.
For the duration of these terms and conditions and any other agreement/s between the parties, and for a period of 12 (twelve) months after the termination of these terms and conditions, the Other Party shall not without the prior consent in writing of Climate Neutral Group, be concerned or interested either directly or indirectly in the provision of services in the Republic of South Africa which are like, or similar to any of the services that Climate Neutral Group are mandated to perform for the Other Party, or which might otherwise compete or interfere with the provision of such services by Climate Neutral Group.
- Warranty for performance of Carbon Offsetting and Consultancy services
Climate Neutral Group warrants that it will render the services contemplated in the agreement(s) to the Other Party with due care, skill and diligence, and in accordance with the appropriate industry norms, standards and best practices. Save for this warranty, Climate Neutral Group gives no other warranties and makes no representations to the Other Party.
- Intellectual property
- All intellectual property rights in and pertaining to the materials, models, techniques and instruments that Climate Neutral Group uses in carrying out any of the services for which it is appointed by the Other Party to perform Carbon Offsetting or Consultancy Services belong exclusively to Climate Neutral Group, alternatively, Climate Neutral Group has been granted the necessary rights to such intellectual property.
- The Other Party shall not in any way infringe on the intellectual property rights of Climate Neutral Group (or such other third party owner of the intellectual property rights). In particular, the other party is not permitted to reproduce, publish, lend out or in any other way make available, in whole or in part, for its own use, or for use by third parties, and whether or not it is for a fee, the materials that Climate Neutral Group has used in developing and implementing the Consultancy, without a prior explicit agreement to do so.
Part B CARBON OFFSETTING
- Provision of Carbon Offsetting
- The Carbon Offsetting for the Other Party will be provided as soon as possible once an agreement to provide such Carbon Offsetting for that Other Party has been concluded between Climate Neutral Group and the Other Party, and in any case within 1 (one) year of the time at which Climate Neutral Group receives payment for the invoiced charges, but in every case within 12 (twelve) months of the end of its fiscal year, unless the independent verification of the allocated Carbon Credits takes longer than this.
- In so far as the characteristics of the Carbon Credits in the agreement between the parties are not precisely specified, or if the projects desired by the Other Party should for any reason not comply with the independent verification, Climate Neutral Group shall be entitled to elect, in its sole and absolute discretion, the projects to which the Carbon Credits to be registered under the name of the Other Party relate, within the constraints of any mix that may have been specified in such agreement.
- Climate Neutral Group at all times retains exclusive rights over the Carbon Credits it purchases for the Other Party or registers under the name of the Other Party, unless the contrary has been explicitly agreed in writing.
- Carbon Credits registered by Climate Neutral Group for or under the name of the Other Party may never be encumbered, sold, supplied or in any way whatsoever traded or alienated by the Other Party to or on behalf of a third party.
Part C CONSULTANCY
- Provision of and Implementing the Consultancy services
- The Consultancy for the Other Party will be provided as soon as possible once an agreement to perform the assignment for that Other Party has been concluded between Climate Neutral Group and the Other Party.
- Climate Neutral Group’s obligation in accepting the assignment to perform Consultancy services is an obligation to render the services contemplated in the agreement(s) to the Other Party with due care, skill and diligence, and in accordance with the appropriate industry norms, standards and best practices.
- If a consultant nominated or appointed by Climate Neutral Group to perform the Consultancy services should be unable to implement the assignment, on written notice to the Other Party Climate Neutral Group shall provide a replacement consultant as soon as practically possible (which consultant shall have similar skills, experience and knowledge necessary to render the Consultancy services as contemplated in clause 1).
- If Climate Neutral Group cannot reasonably provide a replacement consultant in reasonable time, the liability of Climate Neutral Group is limited to the obligation to nevertheless implement the assignment at a time to be decided in consultation with the Other Party.