Farm Carbon Toolkit: Terms & Conditions For Software Access & Use
These are the terms and conditions upon which we provide our services. When we use words like "we", "our' and "us", we are referring to The Farm Carbon-Cutting Toolkit Community Interest Company Limited trading as Farm Carbon Toolkit. We are a company registered in England & Wales. Our registered office is located at Blackbirds Perch, St. Martin's, Isles of Scilly, England, TR25 0QN and our registered number is 07220963.
When we use words like "you" or "your", we're referring to you, a Subscriber, being the business or organisation wishing to deploy our Services, whether you are a Farm or using our Services as a Professional.
Please note that any attempt to use the Software (defined below) is subject to these terms and conditions ("the Conditions") and all services that we deliver are provided subject to these Conditions. We hope that you will take the time to read them through carefully.
Once you click ‘Accept’, there will be a legally enforceable agreement between us and any further changes can only be made as set out in these Conditions.
1.1 We will use a number of words and phrases repeatedly in these Conditions so, to make things easier, we will define what we mean when we use them here:
Agreement means the agreement between you, our client, and us, The Farm Carbon-Cutting Toolkit Community Interest Company Limited, which is made up of these Conditions and the information you have given us during the sign-up process. Please note that any earlier documents you may have received do not form part of this Agreement and, whilst we provide them in good faith, they are not binding upon us.
Client means the client of a Professional, whose data may be uploaded and processed by the Professional using the Software.
Data Protection Legislation means the Data Protection Act 2018 and the UK implementation of the General Data Protection Regulation pursuant to the EU-UK Trade and Cooperation Agreement of 1 January 2021.
Farm means an agricultural business of some description that makes use of the Software in assessing their carbon emissions.
Fees means the fees that are paid to us by Professionals in respect of their use of the Software. These charges are either as set out in detail on the Website (in which case they are subject to change) or as otherwise agreed between us in writing. Unless we expressly agree with you to the contrary, when we change the Fees, we shall notify you in advance so that you have a chance to adapt your use of the Services, as you feel appropriate. The new Fees will take effect from the date specified in the notification, which will be not less than 14 days after the date that we send that notification to you. Unless otherwise stated, the Fees exclude value added tax (or any other applicable sales tax), which will be charged in addition at the applicable rate from time to time.
Infringement means the infringement of the Intellectual Property Rights of a third party.
Intellectual Property Rights means any copyright, trade marks, patents, confidential information and all other intellectual property and proprietary rights, powers and benefits, including the right to register, transfer, licence and assign the same.
Licence means the non-exclusive licence of the Software detailed at clause 2.
Parties, Party means us and/or you.
Professional means a professional adviser making use of the Software in providing services to their Clients.
Server means the server(s) that we provide for the purpose of hosting and delivering the Services.
Services means our provision of the Software for the Specified Purposes and such other services as we may provide from time to time.
Subscriber means a Professional or a Farm, as the case may be.
Software means the software platform that we have developed and which we own.
Specified Purposes means the use and operation of the Software for processing data created by you or your users for the purposes specified on our Website from time to time.
Term means the duration of the Agreement from the date you accept these Conditions until the termination of the Agreement in accordance with these Conditions.
User means an individual who uses the Software on your behalf and who is employed by or contracted to you for that purpose, amongst others.
Unlawful Material means content or data provided or generated by you and/or your customers that constitutes spam, hate speech or which is defamatory, infringes the Intellectual Property Rights or privacy of any third party, pornographic, blasphemous, illegal or otherwise generally offensive or in poor taste.
Website means the website hosted at an IP address corresponding to www.farmcarbontoolkit.org.uk.
Your Material means content and data that is provided by you or which is generated by you or your Clients through the use of the Software.
1.2 Any reference in these Conditions to any provision of any Act of Parliament includes any subordinate legislation (as defined in the Interpretation Act 1978) made under the authority of that Act and shall be deemed to be a reference to that Act of Parliament or subordinate legislation as amended, modified or re-enacted (whether before or after the date hereof) and any reference to any provision of any such Act or subordinate legislation shall also include where appropriate any provision of which it is a re-enactment (whether with or without modification).
1.3 In these Conditions words denoting a gender shall include all genders and words denoting the singular number shall include the plural and vice versa and references to persons shall include bodies corporate, unincorporated associations and partnerships.
1.4 Unless otherwise stated, references to clauses and sub-clauses are references to clauses and sub-clauses of these Conditions. The clause headings are for ease of 2 reference only and shall not affect the construction or interpretation of these Conditions.
2. Services and Fees
2.1 In consideration of your acceptance of these Conditions and the performance of your obligations hereunder, we hereby agree to provide the Services and grant you a non-exclusive licence to use the Software on the Server for that purpose during the Term.
2.2 Any media, documentation or training notes that we provide will remain our property at all times and may not be copied or distributed in any manner without our written permission.
2.3 In consideration of your use of the Software and our supply of the Services (1), you will comply with your obligations under these Conditions and (2), if applicable you will pay the Fees monthly or annually in advance. We will either collect them in full from the credit card that you have lodged with us for that purpose or via such other means as we may offer from time to time or we will send you an invoice at the outset and at each renewal (monthly or annual), which you will pay to the bank account recorded on the invoice within twenty-eight days of the date of each such invoice. You will pay the fees in pounds sterling. If you do not, the exchange rate applied will be the rate applied by our bank when processing the transaction and the amount you pay in your local currency will be whatever is necessary to leave us with full settlement of the Fees due after application of that exchange rate together with whatever administrative fees and commission as might apply.
2.4 We reserve the right to suspend your use of the Software and the Services or to terminate the Contract if you do not pay the Fees when they are due. We may, at our discretion, suspend the provision of the Services to you temporarily for the duration of any period in which the payment of Fees is overdue and we will not be obliged to repay any portion of the Fees paid in advance or to reduce the Fees chargeable for any period during which the Services have been suspended.
2.5 In the event of the termination of the Contract, we shall attempt to collect any outstanding fees on the date of the termination (or as soon as practicable thereafter). If we are unable to do so, we shall forward you an invoice in that amount, which will be payable no later than 14 days of the date of that invoice. If you fail to settle that invoice, we may pursue you for the recovery of that debt and if we do, we shall charge in addition interest on that debt at 8% above the Official Bank Rate of the Bank of England, together with any administrative fees permissible under the Late Payment of Commercial Debts (Interest) Act 1998. The interest chargeable will accrue on a daily basis from the date upon which payment was due until the date upon which payment is made, whether that is before or after judgement is given.
3. Access and Use
3.1 During the Term, you may gain access to the Server via the Internet using an internet browser that matches or exceeds any minimum specification that we provide from time to time.
3.2 You agree to adhere to our security procedures. We may revise our security procedures as we feel appropriate from time to time and when we do, we will alert you to the changes we have made as soon as we can. You undertake to comply with our security procedures at all times. You acknowledge that you are responsible at all times for the management and conduct of your Users.
3.3 Should you become aware or suspect that an unauthorised person has obtained or has attempted to obtain access to the Software or any data processed and accessed by the Software, whether stored on the Server or elsewhere, you will notify us immediately. In particular, we will need to know the circumstances in which the security breach was made or suspected and where such access was gained through the fraudulent use of existing User accounts, you will ensure that the Users in question immediately change their passwords.
3.4 You will not attempt to obtain access to, use or interfere with any software or data that belongs to us or any third party (including any other Subscriber) that is stored on the Server other than as specifically permitted under these Conditions. You will indemnify us against any loss, damage or liability that we may sustain or incur as a result of your breach of this undertaking.
3.5 If you are a Farm, you may not make use of the Software or the Services in providing services to third parties.
4. Your Responsibilities
4.1 You will notify us as soon as possible should you become aware that any third party is infringing our Intellectual Property Rights in the Software, whether that infringement arises from the unauthorised use, copying, distribution of the Software or any other act.
4.2 We will not be responsible for the diagnosis and/or rectification of any fault resulting from:
4.2.1 Improper use or operation of the Software, or your failure to operate the Software or to deploy the Services in a manner consistent with our directions, or the use of the Software otherwise than for the Specified Purposes, including any purpose for which it was not designed;
4.2.2 The use of a browser that does not meet (where applicable) the minimum specification that we provide from time to time; or
4.2.3 The quality, accuracy, correctness, appropriateness or other characteristics relating to the integrity of the data stored or processed by the Software.
4.3 You alone are responsible for all content and data to be processed by the Software and you will control the processing and use of that content and data. We will not be responsible for any fault or error in any such content or data.
5. Property and Confidentiality in the Software
5.1 The Software contains information that is confidential to us. We own all copyright, trade marks and other Intellectual Property Rights in the Software.
5.2 You will not:
5.2.1 attempt to obtain access to, use or interfere with any programs or data belonging to us and stored on the Server (other than access to and use of the Software in accordance with these Conditions) or any of our other clients;
5.2.2 modify, merge or combine the whole or any part of the Software with any other software or documentation.
5.3 You will:
5.3.1 respect the confidential nature of the Software;
5.3.2 limit administrative access to the Software to employees, agents and/or sub-contractors who either have a need to know or who are engaged in the use of the Software;
5.3.3 reproduce our copyright and trade mark notices on any copy of the Software that you make in accordance with these Conditions;
5.3.4 generally do anything else necessary to protect the confidential information and our Intellectual Property Rights in the Software;
5.3.5 indemnify us against any loss, damage or liability that we may sustain or incur because of your breach of your obligations under clauses 5.2 and/or 5.3.
6. Your Material
6.1 We will keep confidential all information (written or oral) concerning your business and affairs that we obtain during the term to which these Conditions apply, save where such information is trivial or obvious or is in the public domain (otherwise than through a breach of this Agreement).
6.2 Save for disclosures in accordance with clause 6.3 below or where such disclosures are required for the purpose of compliance with law, regulations or the order of a court or other properly constituted statutory body, we will ensure that your confidential information (including confidential information about your customers that is processed by the Software) will not be disclosed, provided or made available to any third party without your specific prior written authority.
6.3 The restriction set out at clause 6.2 above shall not apply in respect of disclosure of your content and data to our employees, agents and sub-contractors where those individuals need to know or to access the same, in which event such disclosure shall only be to the extent necessary to enable us to perform our obligations under this Agreement.
6.4 We will ensure that our employees, agents and sub-contractors are aware that the information, content and data provided by you may be confidential and where it is, that such individuals owe you a personal duty of confidence.
6.5 We will notify you immediately should we discover breach of confidence by any of our employees, agents and sub-contractors and we will assist you with any legal proceedings that you may choose to bring against such individuals for breach of confidence.
6.6 All data maintained on master files and data processing reports or any other medium supplied by and belonging to you or generated by you using the Software will remain your property and we will give access to that data via the Software to your officers and employees or any person acting on your authority or nominated by you during the Term.
6.7 On termination of this Agreement, we will make Your Material available to you for seven days. Thereafter, we will securely erase Your Material.
6.8 The obligations as to confidentiality in clauses 5 and 6 shall remain in full force and effect notwithstanding the termination of this Agreement (howsoever occasioned) but shall not extend to any information that was rightfully in the possession of either Party prior to the commencement of negotiations leading to this Agreement or which is otherwise public knowledge or becomes so at some later date (other than as a result of breach of this Agreement).
6.9 You warrant that and will undertake to ensure that Your Material will not contain obscene, offensive, defamatory or otherwise Unlawful Material nor will it infringe the Intellectual Property Rights of any third party or otherwise harm our goodwill and/or reputation. You will indemnify and hold us harmless and keep us fully and effectively indemnified against all actions, proceedings, claims, demands, damages and costs (including legal costs on a full indemnity basis) occasioned to or incurred by us as a result of any breach of this warranty and undertaking.
7. Data Protection and Your Material
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and we are the data processor (where Data Controller and Data Processor have the meanings defined in the Data Protection Legislation).
7.3 Without prejudice to clause 7.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this Agreement.
7.4 Without prejudice clause 7.1, we shall, in relation to any Personal Data processed in connection with the performance of our obligations under this Agreement, we shall:
7.4.1 process that Personal Data only on your written instructions unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us to process Personal Data (Applicable Laws). Where we are relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
7.4.2 ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us);
7.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
7.4.4 not transfer any Personal Data outside of the European Economic Area unless your prior written consent has been obtained and the following conditions are fulfilled:
a) either party has provided appropriate safeguards in relation to the transfer;
b) the data subject has enforceable rights and effective legal remedies;
c) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
d) we comply with reasonable instructions notified to it in advance by you with respect to the processing of the Personal Data.
7.4.5 assist you, at your expense, in responding to any request from a Data Subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.6 notify you without undue delay on becoming aware of a Personal Data breach;
7.4.7 at your written direction, delete or return Personal Data and copies thereof to you on termination of the Agreement unless required by Applicable Law to store the Personal Data;
7.4.8 maintain complete and accurate records and information to demonstrate our compliance with this clause 13and permit a suitably qualified independent professional appointed by you at your expense to act as auditor, subject to the agreement of said professional to our standard non-disclosure agreement, to inspect our facilities, equipment, documents and electronic data relating to our data processing activities under the Agreement only for the purpose of monitoring our compliance with our obligations under this clause 7; and
7.4.9 immediately inform you if, in our opinion, an instruction infringes Data Protection Legislation
7.5 You consent to our appointment of third party processors of Personal Data for the purpose of providing the Services under this Agreement providing that such third party processors contract with us on the basis of terms no less favourable to you than those set out in this Agreement.
8.1 The Software is provided on an “as is” and an “as available” basis. We do not warrant that use of the Software or the Services will be uninterrupted or error-free. You hereby acknowledge and agree that any errors that occur or bugs that you find shall not constitute a breach of these Conditions. You also acknowledge and agree that we shall not be responsible to correct any such errors or bugs.
8.2 WE EXCLUDE ALL LIABILITY FOR PROBLEMS CAUSED BY THE INTERACTION BETWEEN THE SOFTWARE AND ANY HARDWARE, SYSTEMS, NETWORKS OR DATA. WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE; OR ANY LOSS OF PROFITS, TURNOVER, DATA, BUSINESS OPPORTUNITIES, ANTICIPATED SAVINGS OR DAMAGE TO GOODWILL (WHETHER DIRECT OR INDIRECT).
8.3 OUR LIABILITY TO YOU IN RESPECT OF ALL OTHER CLAIMS, LOSSES OR DAMAGES, WHETHER ARISING FROM CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER OR IN CONNECTION WITH THESE CONDITIONS SHALL IN NO EVENT EXCEED THE SUM OF ALL FEES RECEIVED BY US FROM YOU OVER THE COURSE OF THE TWELVE MONTHS IMMEDIATELY PRIOR TO AND TERMINATING ON THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY.
8.4 We offer no warranties or guarantees concerning the performance of the Software and any representations given by us, whether about the Services, the Software or anything else, are excluded save where they are repeated in these Conditions. You confirm that you have not relied upon any warranties or guarantees in entering into any contract based upon these Conditions save for those that are set out within.
8.5 We do not warrant that the Software is suitable for the purposes you intend even if you have informed us as to what your intentions may be. It is up to you to satisfy yourself that the Software meets your requirements and is compatible with your systems.
8.6 Nothing in these Conditions should be interpreted so as to act in any way to limit or exclude our liability for death or personal injury arising from our negligence or for fraud or fraudulent misrepresentation.
9. Intellectual Property Rights
9.1 We warrant that we are entitled to grant the Licence to you and that the use by you of the Software in accordance with these Conditions will not give rise to an Infringement.
9.2 Save as provided for at clause 9.3 and subject to the provisions of clause 9.4 below we will indemnify and hold you harmless against any action, liability, cost or expense (including legal costs and expenses) to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Software by you constitutes an Infringement, provided that you:
9.2.1 give us notice of the Infringement as soon as it comes to your attention;
9.2.2 give us the sole conduct of the defence to any claim or action in respect of an Infringement and do not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon our express instructions; and
9.2.3 act in accordance with our reasonable instructions and give us whatever assistance as we might require in respect of the conduct of the defence to the allegation of infringement, such as the preparation of evidence and other documents required as part of the court process.
9.3 We will not be liable to you in respect of an Infringement that results from any breach by you of your obligations under these Conditions.
9.4 In the event of an Infringement, at our expense and in our discretion, we may:
9.4.1 procure the right for you to continue using the Software; or
9.4.2 make such alterations modifications or adjustments to the Software so that it becomes non-infringing without incurring a material diminution in performance or function; or
9.4.3 replace the Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
9.5 The provisions of clause 8 above do not apply to this clause 9. Your sole remedy in respect of our breach of the warranty given at clause 9.1 above shall be as set out in clause 9.4 above, together with the indemnity given at clause 9.2 above.
9.6 You will indemnify us against any claim of the infringement of third party Intellectual Property Rights, whether alleged or proven, arising from the processing of your content or data or any content or data generated by your Clients using the Software.
10. Service Downtime
We will use reasonable endeavours to keep downtime to a minimum but we give no warranties about this. From time to time we will carry out maintenance on our services (including the Server) and this may involve taking services down for a short period of time. We will aim to give you at least three days’ notice of any planned interruptions but reserve the right to make interruptions on shorter notice in order to fix urgent, significant problems.
11.1 Each Party undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of these Conditions or during the period of operation of these Conditions save that information which:
11.1.1 is trivial or obvious;
11.1.2 is already known to the receiving Party or is in its possession before the disclosure hereunder free of any obligation to keep it confidential; or
11.1.3 is in or enters the public domain other than as a result of a breach of this clause.
11.2 Each Party undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 11.1 above by its employees, agents and subcontractors.
12. Term and Termination
12.1 Your right to use the Software (including the non-exclusive licence granted in accordance with these Conditions starts as soon as practicable after you click ‘Agree’ and continues indefinitely unless terminated in accordance with this clause.
12.2 You may terminate the Agreement without notice and with immediate effect by following the steps provided to terminate your account with us.
12.3 We may terminate this Agreement at any time but shall endeavour to provide as much notice as may be practicable in the circumstances in the event that we should choose to do so. We shall not liable for any loss or damage that you suffer as a result of our termination of this Agreement. In particular, we may terminate this Agreement and, no sooner than seven days from giving you notice of our termination of the Agreement erase all of Your Material that we hold in the event that you make no use of the Services for a period of six months.
12.4 Should we give notice of termination in the event of the cessation of your use of the Services, at our discretion we may offer you the chance to archive those Materials and suspend your account on an ongoing basis subject to your payment of a recurring fee that we shall quote when making that offer. If you choose to accept that offer, as long as you keep paying the fee when it’s due, we will keep Your Material archived and ready to redeploy when required. We will, however, permanently erase Your Material within 14 days of your failure to pay the fees when they are due for payment.
13. Contact and Notices
13.1 Any communication and/or information to be given under these Conditions must be in writing. You agree that such communications and information may be transmitted electronically. If you wish to write to us in hard copy, you may address your letter to the registered office address given at the top of these Terms and Conditions.
13.2 For the purpose of these Conditions, you may deem that we have received that letter seven days after the date you have posted it. We may send notices to any address, electronic or street, that you have provided to us in creating your account and you will be deemed to have received them seven days from the date we post a letter to you or at 9am on the first business day following the date on which we send you a message electronically (whether via email, some other messaging system or via a notification to your account).
14. Force Majeure
14.1 Neither Party shall be liable or deemed to be in breach of its obligations hereunder by reason of any delay in performing, or failure to perform, if the delay or failure was due to any cause beyond its reasonable control, including without limitation, act of God, explosion, flood, tempest, fire or accident; war or threat of war, national emergency, acts of terrorism, sabotage, insurrection or civil disturbance; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary, regional or local authority; strikes, lock-out or other industrial actions or trade disputes (whether involving employees of the Parties or of a third party); unavailability or shortages of goods, materials, fuel, part-machinery, or transportation; power failure or breakdown in machinery; or default of third party suppliers or subcontractors (an “Event of Force Majeure”).
14.2 Each of the Parties agrees to give notice to the other as soon as they become aware of an Event of Force Majeure. This notice will contain the relevant details of the circumstances giving rise to the Event of Force Majeure.
15.1 These Conditions constitute the entire agreement between you and us and supersede all prior agreements, representations, statements and understandings between you and us in respect of the Software. You agree that you have not relied upon any representation or statement not recorded in these Conditions when entering into this Agreement.
15.2 We may choose not to insist on your compliance with one or more of your obligations under these Conditions but that does not mean that we waive our right to insist on that compliance at some later date.
15.3 The unenforceability of any part of these Conditions will not affect the enforceability of any other part.
15.4 You may not assign the Licence granted under these Conditions, nor any of your rights and obligations hereunder, nor sub-license the use (in whole or in part) of the Software without our prior consent.
15.5 We will be entitled to assign this Agreement and any of its rights and obligations at any time. Should we do so, we will give you notification of this as early as reasonably practicable in advance of the proposed assignment or as soon as possible after the assignment has taken place.
15.6 Nobody other than the Parties has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement provided that this does not affect any right or remedy of the third party which exists or is available apart from that Act.
15.7 These Conditions shall be governed by and construed in accordance with English law and the Parties shall submit to the exclusive jurisdiction of the English Courts.