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Lune Climate Standard Terms and Conditions

This page (together with the documents referred to on it) sets out the terms and conditions (the “Terms”) upon which Lune provides the Platform and the Services to you (as such terms are defined below).

Please read these Terms carefully before you use the Platform or the Services. By ticking the “I have read and accept Lune’s Terms and Conditions” box when engaging Lune you indicate that you accept these Terms and that you agree to abide by them.

These Terms were last updated on 8 November 2022.

1. Information About Us
The Platform is owned and operated, and the Services are provided, by Lune Climate Ltd, incorporated in England and Wales with company number 13224979 and having its registered office at 50 Holland Park Mews, London, England, W11 3SP (“we”, “us”, “our” or “Lune”).

2. Interpretation

2.1 The following definitions shall apply in these Terms:

Additional Services: any additional or ancillary services beyond the standard package offered by Lune to its customers (including without limitation customised integration services, Platform customisations, consultancy services and enhanced support services) provided by Lune to the Customer from time to time.

Additional Services Fees: the fees payable by the Customer to Lune for the Additional Services which shall be charged at Lune’s prevailing rates.

Authorised Users: those employees and staff of the Customer who are authorised by the Customer to access and use the Platform.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Calculation Fees: the total fees payable by the Customer to Lune for the Carbon Emission Calculations, charged in accordance with Lune’s standard pricing bandings for number of Carbon Emission Calculations per month (available on Customer request).

Carbon Emission Calculations: the automated carbon emission calculations carried out by the Lune API or Platform which allow the Customer to measure the estimated carbon emissions of its products and services

Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, candidates, affairs and / or finances of a Party for the time being confidential to that Party.

Contract: the contract between Lune and the Customer for the provision of the Platform and the Services as governed by the these Terms, together with any additional terms as mutually agreed in writing by the Parties from time to time.

Credits: the carbon offset credits available to reserve and purchase in respect of Partners’ Projects on the Platform from time to time.

Credit Fees: the total fees payable by the Customer to Lune for the purchase of Credits and/or Future Credits in relation to a Partner’s Project, charged at the Prices.

Customer: you, the entity that has engaged Lune to provide the Platform and the Services.

Documentation: the documentation made available by Lune from time to time in connection with the Customer’s use of the Platform.

End Users: the Customer’s end users.
Fees: the Credit Fees, Platform Fees, Calculation Fees and any Additional Services Fees.

Future Credits: the carbon offset credits available to reserve and pre-purchase in respect of Partners’ future Projects on the Platform from time to time

Go-Live Date: the earlier of the date that (i) the Customer and its Authorised Users are granted access to the Platform, or (ii) the commencement of the Services.

Initial Subscription Term: the initial term of the Customer’s subscription for access to and use of the Platform and/or the Carbon Emission Calculations being 12 months from the Go-Live Date.

Integration Services: the services required to integrate the Platform into the Customer’s products or services using the Lune API.

Intellectual Property Rights: all current and future copyright, rights in computer software, patents, rights to inventions, trade marks, databases rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), rights in designs, topographies, trade and business names, domain names, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

IT System: the IT hardware, software and infrastructure used by the Customer and which is used in connection with, or integrates with, the Platform and/or Lune API.

Lune API: Lune’s proprietary application programming interface software. 1

Order: the Order the Customer places on the Platform for Credits and/or Future Credits in a specific Project.

Parties: Lune and the Customer (each a “Party”).

Partner: a third-party carbon offset developer or registry that Lune has partnered with and from whom the Customer can place Orders for Credits and/or Future Credits in respect of Projects.

Platform: Lune’s proprietary carbon offsetting and removal purchase platform accessible at https://dashboard.lune.co/ or by way of integration with the Lune API.

Platform Fees: the total fees payable by the Customer to Lune for access to and use of the Platform, as agreed between Lune and the Customer.

Price: the aggregate price of the Credits and/or Future Credits for each Partner Project respectively including Lune’s administration fee.

Projects: the carbon offset or carbon removal projects (whether current or future)offered by Partners from time to time as displayed on the Platform.

Promotional Purposes: as defined in clause 14.2.

Renewal Period: as defined in clause 20.1.

Services: the Integration Services, Software Services and any Additional Services.

Software: the online software applications provided by Lune as part of the Platform.

Software Services: those services to make the Platform available to the Customer on a software as a services (SaaS) basis.

Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.

Supported Browser: the most current supported production release of: (i) Google Chrome; (ii) Mozilla Firefox; (iii) Apple Safari; and (iv) Microsoft Internet Explorer.

Third-Party Content: as defined in clause 7.12.
Third-Party Software: any third-party software incorporated into the Platform including, but not limited to, open source software components.

Tools: means the tools made available to the Customer to allow the Customer to brand the Platform and to use certain features and functionality of the Platform.

3. These Terms

3.1 These Terms, which are made available on Lune’s website, apply to all Services provided by Lune to the Customer and the Customer’s use of the Platform (whether accessed at https://dashboard.lune.co/ or integrated into the Customer’s product or services by way of the Lune API).

3.2  These Terms are current as at the date set out at the start of these Terms. Lune reserves the right to update these Terms from time to time by posting an updated version of these Terms (“Updated Terms”) on Lune’s website or by notifying the Customer in writing of the Updated Terms at least 45 days before they come into force.

3.3  If the Customer does not wish to accept the Updated Terms, the Customer may terminate this Contract by giving Lune at least 30 days’ written notice provided that such notice expires before the Updated Terms come into force.

3.4  If the Customer does not serve notice on Lune to terminate this Contract in accordance with clause 3.3, the Customer shall be deemed to have accepted the Updated Terms, and the Customer’s use of the Platform and the Services shall be subject to the Updated Terms from the date they come into force.

3.5  These Terms will prevail over any other document (including the Customer’s own terms and conditions) put forward by the Customer.

4. Platform and the Services

4.1  The Platform can be accessed as a dashboard and allows the Customer to find and compare Projects as well as select and purchase Credits and/or Future Credits from Partners in respect of such Projects in order to compensate for the carbon emissions of the Customer’s product or service. Alternatively, the Platform can be built into the Customer’s services or products using the Lune API to allow for automated carbon offsetting.

4.2  Lune shall make the Platform available to the Customer during the Subscription Term in accordance with these Terms.

4.3  If the Platform is provided on a “white label” basis, either:

(a)  Lune shall customise and brand the Platform for the Customer as part of the Additional Services; or

(b)  the Customer shall be responsible for branding the Platform by using the Tools made available by Lune,

as agreed in in writing by the Parties, provided that the Platform shall always include the wording “Powered by Lune Climate” in a form acceptable to Lune.

4.4  Depending on Customer requirements, Lune shall also provide some or all of the following services:

(a)  the Integration Services;

(b)  the Software Services;

(c) the Support Services; and/or (d) any Additional Services.

4.5 The Contract shall not prevent Lune from entering into similar agreements with third parties, or from selling or licensing products and/or services which are similar to those provided under the Contract with the Customer.

5. Licence

5.1  Subject to the Customer complying with these Terms, Lune grants the Customer a non-exclusive, non-transferrable licence, without the right to grant sub-licenses, to permit the Authorised Users to access and use the Platform and the Documentation during the Subscription Term of this Contract solely for the Customer’s own business purposes.

5.2  In relation to the Authorised Users, the Customer undertakes that:

(a)  each Authorised User shall keep a secure password for their use of the Platform, and that each Authorised User shall keep their password confidential;

(b)  it will ensure no Authorised User’s password is discovered by an unauthorised person;

(c)  it shall promptly provide Lune with the names and contact details of each Authorised User upon request;

(d)  it shall permit Lune or Lune’s designated auditor to audit the Authorised Users’ use of the Platform to establish the Customer’s compliance with these Terms;

(e)  if any of the audits referred to in clause 5.2(d) reveal that any password has been provided to any unauthorised person, then without prejudice to Lune’s other rights and remedies, Lune may disable such passwords without issuing replacement passwords to the Customer and/or restrict the Customer’s access to the Platform under such passwords (and the Customer shall remain liable to pay Lune any outstanding Fees for the Contract notwithstanding that the Customer’s access to the Platform may be disabled and/or restricted).

5.3  The rights granted under this clause 5 are granted to the to the Customer only, and are not granted to any group company of the Customer.

6. Licence Restrictions

6.1 The Customer shall not, and shall ensure that its Authorised Users or End Users shall not, access, store, distribute or transmit any viruses, or any material during the course of its use of the Platform or the Services that is unlawful or may damage or detrimentally affect the performance of the Platform, the Services and/or the reputation of Lune. Lune reserves the right, without liability or prejudice to its other rights against the Customer, to cease provision of the Services and disable the Customer's access to the Platform immediately and without notice if it breaches this clause 6.1.

6.2  The Customer shall not (nor attempt to):

(a)  copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Lune API, Software and/or the Documentation in any form or media or by any means; or

(b)  de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Lune API or Software;

(c)  use the Platform or the Services for any purpose except for the purposes of its Contract with Lune;

(d)  access all or any part of the Platform or the Services in order to build a product or service which competes with the Platform and/or the Services;

(e)  use the Platform or Services to provide services to third parties other than to offer automated carbon offsetting and related analytics to its End Users via the Lune API;

(f)  subject to clause 23.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or the Services available to any third party except the Authorised Users; or

(g)  attempt to obtain, or assist third parties in obtaining, access to the Platform other than in accordance with clause 5.

6.3  The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and the Services and, in the event of any such unauthorised access or use, shall promptly notify Lune.

7. Projects and Credit Orders

7.1  The Platform will display available Projects from time to time that the Customer is able to place Orders for Credits or Future Credits in.

7.2  After placing an Order for Credits for a Project on the Platform, Lune will fulfil the Order by either:

(a) using Credits that Lune already holds in that particular Project; or

(b) purchasing the Credits directly from the relevant Partner.

7.3  Lune will subsequently invoice the Customer for the Credit Fees in accordance with clause 9 of these Terms. The Customer acknowledges that Lune may require the Customer to pay the relevant Credit Fees in advance of purchasing any Credits in accordance with clause 7.2(b).

7.4  Once the steps at clause 7.2 to 7.3 have been carried out, the purchased Credits will be retired on behalf of the Customer and Lune will issue the Customer with a certificate confirming the retirement of the Credits.

7.5  Where the Order placed by the Customer is for Future Credits for a future Project on the Platform, clauses 7.2 to 7.4 shall apply to that Order save that the Future Credits purchased by the Customer will be retired on behalf of the Customer only once such Future Credits are delivered to Lune by the Partner. Lune will then issue the Customer with a certificate confirming the retirement of the Future Credits.

7.6  Lune may reject any Order in its sole discretion provided it acts reasonably in all circumstances.

7.7  If:

Lune will use its reasonable endeavours to purchase Credits or Future Credits in a similar Project (as determined by Lune in its discretion).

7.8  If Lune is unable to purchase Credits or Future Credits in a similar Project in accordance with clause 7.7, Lune will:

(a)  grant the Customer the option of cancelling the Order (and refunding any Credit Fees that have been paid in advance); or

(b)  offer the Customer the chance to purchase Credits or Future Credits in a different Project recommended by Lune.

7.9  Lune will use reasonable endeavours to ensure the accuracy of the Prices displayed. However, it is always possible that some Prices may be incorrect, as a result of a software or administrative error. Lune will normally check the Price before accepting

(a)  Lune does not already hold Credits in the Customer’s chosen Project and Lune is unable to purchase any Credits or Future Credits in the Project for which the Customer has placed an Order; or

(b)  in respect of a future Project, a Partner fails to (or decides not to) carry out the future Project such that the Customer’s purchase of Future Credits in that Project cannot be retired, your Order. If there is an error so that the correct Price is less than the stated Price, we will charge the lower amount. Where the correct Price is higher than the stated Price, we will contact you and give you the option of either paying the correct Price or cancelling the Order.

7.10  No Order may be cancelled by a Customer except in accordance with clause 7.8(a) or clause 7.9 of these Terms.

7.11  Lune may, as mutually agreed with the Customer from time to time, impose a minimum purchase obligation in respect of the number of Credits and/or Future Credits that it purchases over a set period.

7.12  In order to display the Projects, the Platform will contain links or references to non- Lune websites, products, services or other materials or content (“Third-Party Content”).

7.13  By accessing and/or using the Platform, the Customer agrees that Lune is not responsible or liable for any Third-Party Content or for the actions of any Partners or other entities that provide or use such Third-Party Content. Lune has no control over the Third-Party Content and Lune does not monitor, verify, censor or edit any Third- Party Content.

7.14  When the Customer accesses or uses Third-Party Content, it accepts there are risks in doing so. Lune encourages the Customer to be aware when it leaves the Platform and to read the terms and conditions and privacy policy applicable to the Third-Party Content it accesses or uses.

8. Carbon Emissions Calculations

8.1  If required, and in consideration for the Calculation Fees, Lune will grant the Customer the ability to integrate Carbon Emission Calculations during the Subscription Term using the Lune API.

8.2  The Carbon Emission Calculations will be shown as an emission estimate result. The emission result returned will be in CO2e (accounting for both CO2 and non-CO2 emissions).

8.3  The Customer acknowledges that the results of the Carbon Emission Calculations are based upon the information provided by the Customer to Lune. Accordingly, the Customer warrants that the information it provides to Lune for the purpose of the Carbon Emission Calculations will be true, accurate and complete.

8.4  The Customer acknowledges that the Carbon Emission Calculations are only estimate calculations of the Customer’s carbon omissions. Although Lune takes all reasonable care to confirm the accuracy of the Carbon Emission Calculations, Lune shall not be liable for any errors or omissions or inaccuracies in the results of the Carbon Emission Calculations.

8.5  The Calculation Fees charged annually in accordance with clause 9.2(a) will be based on the Customer’s estimated required number of monthly Carbon Emission Calculations for each year of the Subscription Term. The Customer will, prior to the grant in clause 8.1, inform Lune of the maximum estimated number of monthly Carbon Emission Calculations required for the following year of its Subscription Term (and the Customer shall do the same for each subsequent year of the Subscription Term that it requires the Carbon Emission Calculations). The Calculation Fees will be calculated in accordance with Lune’s pricing bandings for estimated number of Carbon Emission Calculations per month.

8.6  Lune will, each month of the Subscription Term, calculate the actual number of Carbon Emission Calculations performed by the Customer in the prior month. If the actual number Carbon Emission Calculations performed by a Customer in a month exceeds the Customer’s maximum estimated number of Carbon Emissions Calculations such that the Customer has underpaid Calculation Fees to Lune, then Lune will invoice the Customer for (i) an amount equal to such underpayment for that month and (ii) an amount equal to the underpayment of the Calculation Fees for the remainder of the year to which the Calculation Fees paid by the Customer relate..

8.7  Lune will not be required to refund any Calculation Fees paid by a Customer where the Customer performs fewer Carbon Emission Calculations than the maximum number of Carbon Emission Calculations estimated to be required and paid for by the Customer in accordance with clause 8.5.

9. Fees and payment

9.1  The Customer shall pay Lune the Fees in accordance with the terms of this Contract.

9.2  Lune shall invoice the Customer for any:

(a)  Calculation Fees annually in advance;

(b)  Platform Fees annually in advance;

(c)  Credit Fees monthly in arrears; and

(d)  Additional Services Fees monthly in arrears,

unless otherwise agreed between Lune and the Customer in writing. Each of the Fees listed above in this clause 9.2 are distinct and agreed with the Customer separately from one another. Lune will only charge the Customer for the relevant Fees it has incurred (or will incur) in respect of the Services provided (or to be provided).

9.3  The Customer shall pay Lune’s invoices within 14 days of the date of the invoice.

9.4  If Lune has not received payment by the due date, and without prejudice to any other rights and remedies it may have, Lune may:

(a)  without liability to the Customer, disable the Customer's password, account and access to all or part of the Platform and the Services and Lune shall be under no obligation to reinstate access while the invoice(s) remain unpaid and the Customer shall continue to pay the Fees to Lune in accordance with the terms of this Contract notwithstanding that the Platform and the Services may be unavailable and inaccessible; and/or

(b)  charge the Customer interest on the overdue amount at the rate of 4% above the Bank of England’s base rate from time to time.

9.5  Except where otherwise agreed between Lune and the Customer, all amounts and fees stated or referred to in the Contract shall be payable in pounds sterling and are exclusive of value added tax (which shall be added to Lune’s invoices at the applicable rate).

10. Customer Obligations

10.1 The Customer shall:

(a)  provide Lune with such co-operation, assistance, information, data and documentation as Lune may reasonably request;

(b)  comply with all applicable laws and regulations;

(c)  ensure that the Authorised Users use the Platform and the Services in accordance with the terms and conditions of these Terms and shall be responsible for any Authorised User's breach of this Contract;

(d)  obtain and shall maintain all necessary licences, consents, and permissions necessary for Lune, its contractors and agents to perform their obligations under this Contract;

(e)  ensure that its network and systems comply with the relevant specifications provided by Lune in order to access and use the Platform or Lune API and receive the benefit of the Services;

(f)  if applicable, purchase enough Credits and/or Future Credits to satisfy any minimum purchase obligation agreed with Lune; and

(g)  be solely responsible for procuring, maintaining and securing its internet browser, and its network connections and telecommunications links from its systems to Lune’s (and Lune’s suppliers’) data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s internet browser, network connections or telecommunications links or caused by the internet.

10.2 Where Lune’s performance of this Contract is prevented or delayed by any act or omission of the Customer, its officers, employees, consultants, agents, agency workers or subcontractors, Lune shall be allowed an equal extension of time to perform its obligations, and the Customer shall pay Lune the Fees on the date(s) they would have become due but for the prevention or delay and the Customer shall pay Lune the Additional Services Fees at Lune’s prevailing standard rates for any Additional Services performed by Lune in dealing with the prevention or reducing the delay.

11. Lune Obligations

11.1  Lune undertakes that:

(a)  the Platform and Lune API will perform substantially in accordance with the Documentation;

(b)  it has and will maintain all licences, consents, and permissions necessary for the performance of its obligations under this Contract;

(c)  it has and will at all times have the ability and capacity to perform all of its obligations under this Contract; and

(d)  it will at all times comply with all applicable laws and regulations.

11.2  The undertaking at clause 11.1(a) shall not apply to the extent of any non- conformance which is caused by use of the Platform or Lune API contrary to Lune’s instructions or these Terms or by the use of the Platform with a browser other than a Supported Browser. If the Platform or Lune API does not conform with the undertaking at clause 11.1(a), Lune will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 11.1(a).

11.3  Lune shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

11.4  Each Party warrants that it has full capacity and authority, and all necessary licenses, permits and consents to enter into and perform this Contract.

11.5  The undertakings provided in this clause 11 are in lieu of all warranties, rights and remedies provided by law which are hereby excluded to the fullest extent permitted by applicable law.

12. The Customer’s Systems

12.1  The Customer acknowledges and agrees that the Platform and the Services are made available to the Customer based on the IT System used by the Customer as at the date that Customer enters into this Contract. If the Customer makes any changes to the IT System (“New IT System”), the Customer:

(a)  shall promptly notify Lune and provide Lune with full details of the New IT System;

(b)  acknowledges and agrees that the Customer may not be able to access all or part of the Platform or the functionality of the Platform or Lune API; and

(c)  acknowledges and agrees that Lune may charge the Customer the Additional Services Fees at Lune’s prevailing standard rates for any Additional Services performed by Lune to reconfigure or reintegrate the Platform or Lune API for use with the Customer’s New IT System.

12.2  Where the Customer makes changes to its’ IT System, the Customer acknowledges and agrees that the Customer shall remain liable to pay the Fees to Lune in full in accordance with the terms of this Contract notwithstanding any degradation or unavailability of the Platform caused by the change to the New IT System.

12.3  The Customer warrants and represents that the IT Systems’ use and integration with the Platform will not infringe the Intellectual Property Rights of any third party. The Customer shall indemnify Lune for all claims, costs, damages and expenses (including legal expenses) incurred by Lune as a result of the Customer’s breach of the warranty in this clause 12.3.

13. Updates

13.1 Lune reserves the right to:

(a)  update and upgrade the Platform from time to time, and the Customer shall be responsible for activating any new functionality within the Platform following an update or upgrade;

(b)  make other changes and modifications to the Platform and/or Services from time to time with or without notice to the Customer provided that such changes and modifications do not permanently and materially degrade the functionality or performance of the Platform or Services; and

(c)  update the list of Supported Browsers from time to time, and the Customer shall be responsible for ensuring it accesses and uses the Platform via a Supported Browser.

14. Intellectual Property

14.1  The Customer acknowledges and agrees that Lune and/or its licensors retain all title, rights and interest in and to the Intellectual Property Rights in the Platform, Lune API, Software and the Services. Except as expressly stated herein, these Terms do not grant the Customer any rights to the Intellectual Property Rights in or to the Platform or the Services.

14.2  If the Customer has elected to integrate the Lune API with its IT System, Lune grants the Customer a non-exclusive, royalty-free, worldwide, non-transferrable, non- sublicensable, revocable licence for the Subscription Term of the Contract to use Lune’s name and logo on the Customer’s “white label” Platform.

14.3  The Customer grants Lune a non-exclusive, royalty-free, worldwide, transferrable, sub-licensable, perpetual and irrevocable licence to use the Customer’s:

(a)  Intellectual Property Rights solely for the purpose of branding and customising a “white label” Platform in accordance with clause 4.3 of these Terms; and

(b)  the Customer’s name and logo on Lune’s website, in marketing materials and in case studies for the purposes of promoting the Platform and the Services to Lune’s other actual and potential clients and customers (the “Promotional Purposes”).

14.4  The Customer shall indemnify Lune for any and all losses suffered by Lune arising directly or indirectly as a result against any claim that Lune’s use of the Customer’s Intellectual Property Rights, name and logo infringes the Intellectual Property Rights of any third party.

14.5  Lune shall defend the Customer against any claim that the Platform infringes any Intellectual Property Rights of any third party (“Claims”), and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such Claims, provided that:

(a) Lune is given prompt notice of all such Claims;

(b) the Customer does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Lune;

(c) the Customer promptly provides reasonable co-operation and assistance to Lune and its professional advisors in the defence and settlement of such Claim; and

(d) Lune is given sole control over, and authority to defend or settle, the Claim.

14.6  In the defence or settlement of any Claim, Lune may procure the right for the Customer to continue using the Platform, replace or modify the Platform so that it becomes non- infringing or, if such remedies are not reasonably available, terminate this Contract on 2 Business Days’ notice to the Customer without any liability to the Customer and Lune shall refund the Customer any Fees on a pro-rata basis to the extent they relate to the post-termination period of this Contract.

14.7  In no event shall Lune, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a)  a modification of the Platform by anyone other than Lune;

(b)  the Customer’s use of the Platform in a manner contrary to the instructions given to the Customer by Lune;

(c)  the Customer’s use of the Platform after notice of the alleged or actual infringement from Lune or any appropriate authority; or

(d)  any information, data, documentation, materials or other items provided by the Customer, or created to the Customer’s instructions or specifications.

14.8  The foregoing and clause 14.6 state the Customer’s sole and exclusive rights and remedies, and Lune’s entire obligations and liability, for infringement of any Intellectual Property Rights of any third party.

15. Third-Party Software

15.1 The Platform incorporates Third-Party Software. If any Third-Party Software is permanently or temporarily unavailable, or ceases to be available on terms which Lune deems to be commercially acceptable, Lune may remove that Third-Party Software from the Platform and, without liability to the Customer:

(a) make such modifications to the Platform and/or the Services as Lune determines are needed as a result of the removal of the Third-Party Software; or

(b) where Lune determines that the Third-Party Software is fundamental to the Platform and cannot be easily and cost-effectively replaced, Lune may terminate this Contract by giving the Customer at least 5 Business Days’ notice and Lune shall refund the Customer any Fees on a pro-rata basis to the extent they relate to the post-termination period of this Contract.

15.2  Where Lune modifies the Platform and/or the Services under clause 15.1(a), the Customer shall enter into such contracts with alternative providers of the Third-Party Software as Lune may reasonably require.

15.3  Nothing in this clause 15 shall relieve the Customer of its obligation to pay Lune the Fees in full in accordance with the Contract.

16. Confidentiality

16.1  Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Contract. A Party’s Confidential Information shall not be deemed to include information that:

(a)  is or becomes publicly known other than through any act or omission of the receiving Party;

(b)  was in the other Party’s lawful possession before the disclosure;

(c)  is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or

(d)  is independently developed by the receiving Party, which independent development can be shown by written evidence.

16.2  Subject to clause 16.3, each Party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than for the implementation of this Contract.

16.3  The receiving Party may disclose the other’s Confidential Information:

(a)  to its officers, employees, consultants, agents, agency workers and subcontractors who need to receive the Confidential Information for the purposes of this Contract (“Representatives”) provided that the receiving Party ensures its Representatives comply with this clause 16 as though they were the receiving Party; or

(b)  to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.

16.4  Nothing in this Contract shall prevent Lune referring to the Customer or to the Services provided to the Customer on Lune’s website, in marketing materials or in case studies for Promotional Purposes provided that Lune does not reveal any Confidential Information of the Customer.

16.5  The above provisions of this clause 16 shall survive termination of the Contract, however arising.

17. Data Protection

17.1  During the Subscription Term of this Contract, the Customer will share with Lune a limited amount of personal data related to the Authorised Users and End Users. Lune, in its capacity as data controller, shall process such personal data in accordance with these Terms and its privacy policy available at: https://lune.co/privacy/.

17.2  It is the Customer’s responsibility to ensure that its Authorised Users and End Users are aware of, and have been provided a copy of, Lune’s privacy policy.

18. Data analytics

18.1  Lune reserves the right to perform data analytics on the Customer and Authorised User’s use of the Platform and to create anonymous data from such analytics (“Aggregate Data”).

18.2  Lune shall own all right, title and interest in and to the Aggregate Data (and the Intellectual Property Rights in the Aggregate Data) and Lune may use the Aggregate Data for any purpose without restriction, including for the purposes of:

(a)  providing the Platform and the Services to the Customer in accordance with the terms of this Contract;

(b)  developing insights into purchasing behaviours (“Insights”);

(c)  developing Lune’s products and services for the benefit of Lune and Lune’s

other clients and customers; and

(d)  providing Lune’s products and services, and the Insights to Lune’s other clients and customers (provided the Insights are anonymised).

19. Limitation of Liability

19.1 The Customer acknowledges and agrees that:

(a) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law in respect of the Platform or the Services are, to the fullest extent permitted by applicable law, excluded from this Contract;

(b)  the Platform and the Services are provided to the Customer on an “as is” basis and have not been specifically designed for the Customer;

(c)  the Customer is solely responsible for the Customer’s use of the Platform including any decisions as to the suitability of any Projects and as to the placing of Orders for Credits or Future Credits in relation to such Projects;

(d)  the Customer is solely responsible for any decisions taken based on the results of the Carbon Emission Calculations; and

(e)  Lune does not warrant that the Third-Party Content is accurate or complete,

and, therefore, Lune shall have no liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, in respect of any of those matters.

19.2 Nothing in these Terms limits or excludes the liability of Lune for:

(a)  death or personal injury caused by Lune's negligence;

(b)  fraud or fraudulent misrepresentation; or

(c)  any other liability which cannot be lawfully limited or excluded.

19.3 Subject

to clause 19.2:

(a)  Lune shall not be liable whether in contract (including under any indemnity), tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any:

(i)  loss of profits;

(ii)  loss of business;

(iii)  damage to goodwill or reputation;

(iv)  loss or corruption of data or information;

(v)  pure economic loss, or for any special; or

(vi)  indirect, consequential or special loss, costs, damages, charges or expenses,

in each case however arising under or in connection with this Contract and for the avoidance of doubt clause 19.3(a)(i) to clause 19.3(a)(v) (inclusive) shall apply whether the loss or damage is direct, indirect, consequential, special or otherwise; and

(b)  Lune’s total aggregate liability in contract (including under any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with the performance or contemplated performance of the Contract shall be limited to the total aggregate Fees paid by the Customer to Lune under the Contract during the 12 months immediately preceding the date on which the claim arose.

20. Term and Termination

20.1  Except where otherwise agreed between Lune and the Customer, the Contract shall commence on the Go-Live Date and shall continue for the Initial Subscription Term and, thereafter, this Contract shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”) unless otherwise terminated by either Party in accordance with these Terms.

20.2  Without affecting any other right or remedy available to it, either Party may terminate this Contract with immediate effect by giving written notice to the other Party if:

(a)  the other Party commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b)  the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due; or

(c)  the other Party has a receiver or an administrative receiver appointed over it or over any part of its undertaking or assets or passes a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other Party becomes subject to an administration order or enters into any voluntary arrangement with its creditors.

20.3  Without limiting any other rights or remedies available to it, Lune may terminate the Contract on at least 7 days written notice to the Customer if the Customer fails to pay any amount due to Lune under this Contract and remains in default not less than 7 days after being notified in writing to make such payment.

20.4  On termination of this Contract for any reason:

(a)  all amounts payable to Lune by the Customer shall become immediately due and owing (including, if applicable, any shortfall in the Customer’s failure to meet its minimum purchase obligations during the Subscription Term pursuant to clause 7.11);

(b)  except for the perpetual licence granted under clause 14.3:

(i) all licences granted under this Contract shall immediately terminate and the Customer shall immediately cease all use of the Platform, Lune API, Software the Services and the Documentation;

(ii) each Party shall promptly return and make no further use of the property, documentation and other items belonging to the other Party;

(iii) each Party shall promptly return the other Party’s Confidential Information;

(c) 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 Contract which existed at or before the date of termination shall not be affected or prejudiced; and

(d) all clauses which expressly or by implication survive the expiry or termination of this Contract shall continue in full force and effect including clauses 8.4, 12.3, 14.3, 14.4, 16, 17, 19, 20.4, 21 and 23 and Schedule 1.

21. Notices

21.1  Any notice given to a Party under or in connection with this Contract shall be in writing and shall be:

(a)  delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or

(b)  sent by email to (i) for Lune: [email protected]; and (ii) for the Customer: at email address notified to Lune from time to time.

21.2  Any notice shall be deemed to have been received:

(a)  if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b)  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(c)  if sent by email, at 9.00 am on the next Business Day after transmission provided a “failed transmission” notification (or equivalent) is not received by the sender.

21.3  This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

22. Force Majeure

22.1 Lune shall have no liability to the Customer under this Contract if it is prevented from or delayed in performing its obligations under this Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Lune or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Lune or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

23. General

23.1  Subject to clause 3, no variation of this Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

23.2  No failure or delay by a Party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

23.3  If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.

23.4  This Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

23.5  Each Party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

23.6  The Customer shall not, without the prior written consent of Lune, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract. Lune may at any time assign, transfer, charge, sub- contract or deal in any other manner with all or any of its rights or obligations under this Contract.

23.7  Nothing in these Terms is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other Party except as expressly set out.

23.8  This Contract does not confer any rights on any third party whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

23.9  The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

23.10  Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).