1. Engaged Tracking Terms and Conditions
1.1 These Engaged Tracking Terms and Conditions (the “Terms”) govern the use and licence of ET Data, Products, and Services. Additional or alternative provisions may apply for certain purchases and are included (i) in the Additional Provisions applicable to Products or Services purchased (the “Additional Provisions”) or (ii) in the applicable Letter of Agreement (as these terms are defined below) a Member executes to complete its purchase. These Terms, together with any applicable Additional Provisions and the Letter of Agreement, constitute the valid, complete, and binding contract between Member and ET (the “Agreement”). If there is any conflict between the Terms and the Additional Provisions, the Additional Provisions shall prevail. If there is any conflict between the Additional Provisions and a Letter of Agreement, the Letter of Agreement shall prevail.
2.1 “ET" is Engaged Tracking (ET) Index Limited, incorporated and registered in England and Wales under company number 08876852 whose registered office is at Level39, One Canada Square, London E14 5AB.
2.2 "Member" is an entity that purchases Services from ET.
2.3 "Letter of Agreement" means a written agreement between Member and ET describing the Services that Member is purchasing and may be in the form of a Letter of Agreement, an order form, a statement of work, or a change request, or other similar instrument. These Terms employ “Letter of Agreement” to refer to any of these forms of ordering document.
2.4 “Services" means the products and services provided by ET described in the applicable Letter of Agreement.
2.5 “Term of Agreement” means the Subscription Period, Services term, or other period of time set forth in a Letter of Agreement during which (i) Member has the right to use the purchased Services or (ii) ET is performing Services in accordance with Member’s purchase.
2.6 "Member Property" means any data, information, or other material provided by or on behalf of Member to ET; provided, however, Member Property shall not include any ET Property or ET IPR.
2.7 "ET Property" means all of the following without limitation created or owned by ET, or its licensors, whether pre-existing or independently created during the Term of the Agreement: all Materials, websites, software, tools, URLs and links, frameworks, databases, designs, algorithms, user interface designs, architecture, repositories, objects and documentation, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works.
2.8 "ET IPR" means all Intellectual Property Rights (i) in and to the ET Property or (ii) otherwise owned by or licenced to ET by their respective licensors.
2.9 "Confidential Information" means all information, in whatever form, furnished by one party (the "Disclosing Party") to the other party (the "Receiving Party") orally or in writing and identified as confidential or proprietary at the time of disclosure, or that by its nature should reasonably be assumed to be confidential or proprietary, including, but not limited to: business information; financial information; marketing techniques and materials; business plans and strategies; business operation and systems; pricing policies; information concerning employees, customers, and/or vendors; discoveries; improvements; research; development; know-how; designs; products and services; opportunities; methods and procedures; and equipment, physical materials and manufacturing processes. ET Property and ET IPR are expressly considered Confidential Information.
3. Purchase and Fees
3.1 Letter of Agreement. Each Letter of Agreement shall be subject to these Terms unless otherwise agreed in writing and will contain: (i) Services purchased by Member from ET, (ii) any applicable licence, (iii) the Fees and payment schedule, (iv) the Term of the Agreement, and (v) any additional or alternative provisions. Upon Member’s signature of a Letter of Agreement, Member’s purchase of the Services will be accepted by ET on the earliest of: (a) the date Member is provided access to the Services in accordance with the Term of the Agreement Member has with ET (even if Member does not access such Services); (b) the first invoice date as set forth in the Letter of Agreement; or (c) if applicable, the date the Letter of Agreement is countersigned by ET. All Services are deemed accepted upon delivery unless otherwise stated in the Letter of Agreement. For certain Services, electronic or phone purchases may be agreed between the parties and will be deemed to be Letters of Agreement and subject to these Terms.
3.2 Fees. Member shall pay all fees as specified in the Letter of Agreement. Unless otherwise stated in the Letter of Agreement, (i) fees are quoted and payable in pounds sterling; (ii) fees are based on Services purchased and not actual usage; and (iii) with the exception of termination for Cause by Member, or as may otherwise be stated in the Letter of Agreement, all Services are non-cancellable and all fees are non-refundable.
3.3 Consulting services. Fees are estimated based on the time spent. ET defines a “work day” as being a maximum of 8 hours during normal working hours for the location where the Services are performed. Other rates may apply for work performed outside a work day. Unless expressly stated in a Letter of Agreement, consulting services fees do not include travel, subsistence, courier, car travel and other expenses and will be charged to Member at cost.
3.4 Invoicing. Unless otherwise stated in the Letter of Agreement, ET will deliver an invoice to Member for the full amount of the Fees, and such invoice shall be due and payable by Member within thirty (30) days of receipt. If any portion of an invoice is disputed, Member will pay the undisputed amounts, and the parties will reconcile the disputed amount in good faith as soon as possible. Late payments will bear interest at a rate of 1.5% per month, or, if lower, the maximum rate allowed by law. To the extent permitted by law, ET may send and Member agrees to receive invoices via electronic mail.
3.5 Taxes. All fees are exclusive of taxes, levies, and duties imposed by any governmental or taxing authorities. Member shall pay all applicable sales, use, duties, and other taxes related to purchase of the Services.
3.6 Renewal. This Agreement shall automatically renew for further periods of 12 consecutive months unless either party gives the other at least sixty (60) days’ written notice of non-renewal. If this Agreement is so renewed for any additional period beyond the initial Term, the fees payable for such renewal period shall be calculated at the prevailing rates then offered by ET, and the Agreement shall be considered to have been amended accordingly.
4.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information except as allowed under these Terms or otherwise set forth in a Letter of Agreement.
4.2 Each party will not disclose Confidential Information to any third party, other than to its directors, officers, and employees under a duty of confidentiality, without the other party’s prior written consent. Each party shall maintain the Confidential Information of the other party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care.
4.3 The confidentiality obligations of each party shall continue in force and survive the termination or expiration of the Term of this Agreement for a period of three (3) years following such termination or expiration. The confidentiality obligations with respect to any Confidential Information subject to trade secret protection will continue indefinitely.
4.4 The Disclosing Party grants no licence under any copyright, patent, trademark or trade secret by the disclosure of the Confidential Information. The parties understand and acknowledge that any and all Confidential Information is being provided by the Disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.
4.5 Confidential Information shall not include information which (i) was already known by the Receiving Party at the time of the disclosure by the Disclosing Party, (ii) shall have otherwise become publicly available other than as a result of disclosure by the Receiving Party in breach of these Terms, (iii) was disclosed to the Receiving Party on a non-confidential basis from a third party source other than the Disclosing Party, which the Receiving Party reasonably believes is not prohibited from disclosing such information as a result of an obligation in favour of the Disclosing Party, (iv) is developed by the Receiving Party independently of any disclosure of such information made by the Disclosing Party, or (v) is required to be disclosed by order of a court of competent jurisdiction, or by subpoena, summons or any other legal process, or by applicable professional standards; provided that, in the event that the Receiving Party is ordered by a court of competent jurisdiction, administrative agency or governmental body to disclose any Confidential Information, the Receiving Party shall (a) so long as legally permissible, promptly notify the Disclosing Party of such order and (b) at the written request of the Disclosing Party, diligently contest such order at the sole expense of the Disclosing Party as expenses occur.
5 Ownership and Intellectual Property
5.1 Member Property. Member shall retain exclusive ownership of all rights, title and interest in and to all Member Property provided to ET.
5.2 ET Property. Member acknowledges and agrees that ET shall retain exclusive ownership of all rights, title and interest in and to all ET Property and ET IPR. Member acknowledges that its use of the ET Property and ET IPR will not vest in Member any right, title or interest in or to the ET Property or ET IPR, other than the limited licence rights granted under these Terms or a Letter of Agreement and all Intellectual Property Rights arising from such uses will be owned by ET. The Member warrants and represents that: it will not at any time (i) challenge (a) ET’s rights, title and interests in and to the ET Property or the ET IPR or (b) the validity of any ET IPR, or (ii) take any action or engage in any inaction which would impair or tend to impair the ET IPR.
5.3 Licence. If a licence provision is not included in the Letter of Agreement or otherwise stated in the Additional Provisions, the following default provision shall apply: During the Term of the Agreement, ET grants Member a non-exclusive, royalty-free, worldwide, revocable (for non-payment of Fees or breach), non-transferable and non-assignable licence to access, use, reproduce and distribute the Services solely for Member’s internal business purposes.
5.4 Sublicence. Neither Member nor any individual user may sublicence, sell, transfer, assign to, display or otherwise make available (by sharing passwords or by any other means) the Services to any third party (including (i) a Member service provider, independent contractor, consultant or subcontractor, or any (ii) other Member divisions or Member Affiliates to which the licence has not been extended under the Letter of Agreement) without ET’s written permission, and any attempted sublicence, sale, transfer or assignment shall be void.
5.5 User Compliance. Member is responsible for: (i) protecting against any unauthorised access to or use of, and (ii) compliance of those individuals allowed to access or use, the Programs, Products, Services, Materials and/or Configured Deliverables. Member shall notify ET promptly of any unauthorised access to or use of the Programs, Products, Services, Materials and/or Configured Deliverables. Member shall ensure that it and those individuals allowed to access or use the Services refrain from using them in a manner that is libelous, defamatory, obscene, infringing or illegal, or otherwise abusing the material in any manner.
6 Permitted Use
6.1 ET acknowledges that Member may use the information provided by way of the Services subject to the following Product Specific Restrictions: data shall not be referenced publicly without identifying ET as the source of the data; publication of any material part of any data provided as part of the Services shall be subject to the prior written approval of ET.
6.2 In using the Services, Member shall not:
6.2.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means.
6.2.2 access all or any part of the Services in order to build a product or service which competes with the Services;
6.2.3 use the Services to provide services and products substantially the same as the Services to third parties;
6.2.4 save as expressly permitted pursuant to this Agreement, make available any of the Services to any third party;
6.2.5 save as otherwise agreed with ET, re-sell, licence, transfer, assign, distribute, display, disclose or commercially exploit the Services; or
6.2.6 attempt to obtain, or assist third parties in obtaining, unauthorised access to the Services.
6.2.7 use the Services for any purpose or in any manner that damages or is reasonably likely to damage the Services, or that is detrimental to the reputation of ET.
7.1 Member and ET (each, the "Indemnifying Party") agree to indemnify and defend the other party, its officers, directors, and employees (each, an "Indemnified Party"), from and against any and all loss, damage, and expense, including reasonable legal fees and expenses ("Losses"), incurred by the Indemnified Party as a result of any third party claim, demand, action or proceeding ("Claim"), directly and proximately arising from or by reason of any actual or alleged infringement of any Intellectual Property Rights arising out of any ET Property or Member Property supplied to the Indemnified Party by the Indemnifying Party. This indemnification obligation is provisional on the Indemnified Party: (i) providing the Indemnifying Party prompt written notice of any Claim, or upon reasonable suspicion of a Claim, (ii) cooperating with the Indemnifying Party’s reasonable request for information or other assistance, (iii) granting control of the defence and settlement of the Claim to the Indemnifying Party, and (iv) not settling or making any offer to settle the Claim or make any admission of guilt or fault without first obtaining the Indemnifying Party’s prior written approval.
7.2 To the extent that ET is the Indemnifying Party, such provision shall not apply to (i) Member's misuse of ET Property provided by ET, (ii) Member's use of ET Property in combination with any product or information not provided by ET, or (iii) Member's utilisation of ET Property in a manner not contemplated by these Terms or any Letter of Agreement, in each case, whether or not with ET's consent.
7.3 In the event that any ET Property or Member Property, as applicable, become or are, in the Indemnifying Party’s opinion, likely to become the subject of an infringement claim, or use of ET Property or Member Property is enjoined, or in the Indemnifying Party’s opinion, likely to be enjoined, then, at the Indemnifying party’s election, the Indemnified Party will allow the Indemnifying Party to either obtain for the Indemnified Party the right to continue using the affected material, replace it, modify it so it becomes non-infringing, or, in the case of ET as the Indemnifying Party (and at ET’s sole discretion), terminate the applicable Letter of Agreement by written notice to Member, require Member to cease use of ET Property, and refund to Member the amount(s) paid to ET under the applicable Letter of Agreement prorated for the amount of time left in the Term of the Agreement for which the applicable ET Property is no longer available.
7.4 This section shall constitute a party’s sole and exclusive remedy at law in connection with any Claim brought against such party by a third party alleging actual or alleged infringement of any Intellectual Property Rights.
8 Limitations of Liability
8.1 Neither party shall be liable for any of the following losses or damages (whether or not foreseen, direct, indirect, foreseeable, known or otherwise): (i) loss of profits (whether actual or anticipated), (ii) loss of revenue, (iii) loss of contracts, (iv) loss of anticipated savings, (v) loss of business, (vi) loss of opportunity, (vii) loss of goodwill, or (viii) any indirect, special or consequential loss or damage. Notwithstanding the foregoing, nothing shall limit ET’s rights to damages arising from any infringement or misappropriation of ET IPR, regardless of whether such infringement or misappropriation arises in connection with these Terms or any Letter of Agreement.
8.2 ET’s total aggregate liability arising out of or in connection with the performance or contemplated performance under the applicable Letter of Agreement (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by Member to ET under such Letter of Agreement within the 12 month period immediately before the date of the event giving rise to Member’s claim.
8.3 ET shall not be liable for (i) any loss of profits, loss of business, depletion of goodwill and/or similar losses or (ii) any loss or liability arising out of any investment decision undertaken by the Member.
8.4 Nothing contained in these Terms or any Letter of Agreement shall exclude or limit either party’s liability for (i) death or personal injury caused by its negligence, (ii) fraud or fraudulent misrepresentation, or (iii) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability. In all such cases, a party’s liability shall be limited to the greatest extent permitted by applicable law.
9.1 General. With the exception of termination for Cause (defined below), or as may otherwise be stated in a Letter of Agreement, Member may not terminate the Letter of Agreement and, except as otherwise stated the Letter of Agreement, any Fee paid or payable by Member are not refundable or cancellable.
9.2 Termination for Cause. Either party may terminate a Letter of Agreement for “Cause” if the other party: (a) becomes or is likely to become insolvent or enters into administration or bankruptcy or (b) materially breaches any provision of an Agreement between the parties (which, in the case of Member, shall include failure to pay any undisputed Fees) and (i) either the breach cannot be cured or, (ii) if the breach is capable of being cured, it is not cured by the breaching party within thirty (30) days after the breaching party’s receipt of written notice of such breach by the non-breaching party (stating the specific nature of the breach). Termination for Cause shall not relieve Member of the obligation to pay any undisputed Fees accrued or payable to ET in connection with the Letter of Agreement prior to the effective date of termination. Such termination will be without prejudice to any rights or remedies of either party which may have accrued up to the date of termination.
9.3 Effect of Termination. Except as otherwise provided in the Letter of Agreement, upon expiration of the applicable Term of the Agreement Member has with ET for any Programs, Products and/or Services, or any termination of the Letter of Agreement, or portion thereof: (i) all licences granted by ET pursuant to the Letter of Agreement or Section 2.3.1 of these Terms shall immediately terminate and (ii) Member shall immediately cease use of the Services, Products, Programs and/or Materials, in each case for such Programs, Products, and/or Services, or that portion thereof, for which such Term of Agreement has expired or the Letter of Agreement has been terminated. ET reserves the right to charge Member for continued use of the Services after the expiration or termination of the Member’s Agreement with ET.
10 Consulting Services
10.1 Member may purchase Services as certain consulting services on a stand-alone basis or in conjunction with another purchase. Dates for Service performance agreed to in a Letter of Agreement are conditional upon Member’s timely completion of its obligations, including but not limited to, provision of necessary information and approval of documentation. Member will provide reasonable assistance to ET that is required to facilitate delivery of Services to Member. Delays caused by Member’s failure to meet its obligations in a timely manner will be at Member’s cost and expense, and subsequent delivery or performance dates will be adjusted accordingly proportionate to the delay. ET will not be liable in the event that ET is not able to deliver the Services due to Member’s non-performance. After written notice to Member of any Member delays that prevent ET from performing its obligations and after a reasonable time for Member to address the delay, ET will be deemed to have delivered the Services in full satisfaction of its obligations.
10.2 If Member fails to meet its obligations or timelines as agreed in a Letter of Agreement or wishes to cancel or postpone the agreed dates for Services delivery, ET may incur costs for such delay or cancellation. The parties may enter a change request to modify or amend the Letter of Agreement and agree on any additional charges. Unless otherwise agreed in the Letter of Agreement, cancellation fees for cancellation of Services are 100% of the agreed Fees if cancelled after the Services commence or with less than one week’s notice. The cancellation fees are 50% if cancelled with less than two weeks’ notice and 25% with less than three weeks’ notice.
11.1The Member gives ET, without restriction, the right to reference the Member as a client to other clients and prospective clients, as well as in its marketing materials and on its website, without disclosing any confidential information. In addition, if Member discloses Member Property to ET specifically for inclusion in materials or for the joint development of a case study or other research, ET may attribute such information with Member’s name and logo. ET may use Member’s plain text name as required in any public reporting or regulatory documents.
12.1 ET warrants that it employs the utmost care and due diligence in the processes used to provide the Services. This includes, but is not limited to, devising generally robust methodologies and processes, internal quality assurance checks to review data, performing statistical analyses to identify anomalies in the data, contacting companies directly to verify their reported data, et cetera. Member acknowledges that in compiling ET Carbon Dataset ET is drawing upon information disclosed by companies in the public domain. While ET endeavours to take all reasonable steps to ensure that the data disclosed by companies is accurate before being categorised as “Complete” within ET Carbon Dataset, including but not limited to performing statistical analyses to identify anomalies in the data, ET accepts no liability for data reported by companies that is found to be inaccurate or have been misrepresented by companies. ET warrants that at the time of delivery to the Member the data is, to the best of its knowledge, a true and accurate representation.
12.2 ET Warranties. ET represents and warrants that the Services will materially conform to the provided specifications and that it will perform the Services in good faith and in a professional manner. During the Subscription Period, if Member reasonably demonstrates that there is a defect in the materials or workmanship of the Services, ET will: (a) repair or make good such defect at no charge to Member; or (b) replace such Programs or Products and/or re-perform such Services; or (c) issue a credit to Member for a pro-rata portion of the fees for such affected Programs, Products and/or Services as appropriate.
12.3 Member Warranties. Member represents and warrants that it: (a) owns or has the right to provide to ET all Member Property (b) will not copy, reproduce, modify or adapt, translate, disassemble or, reverse engineer, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Programs, Products, Services, and/or Materials (as applicable) in any form or media or by any means, except as permitted under the Agreement between the parties; (c) will not cause confusion, deception or false associations with programs, products and/or services that are not the Services including without limitation preparing materials that are identical with, or confusingly similar to ET Property; and (d) will use the Services in compliance with all relevant laws, procedures or applicable guidelines.
12.4 Disclaimer of Warranties. ET provides the programs, products, services, materials, and/or configured deliverables “as is” and disclaims, to the extent permitted by applicable law, all warranties for programs, products, services, materials, and/or configured deliverables provided by ET, either express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. ET does not warrant or guarantee that company will realise any results by virtue of the use of the provided programs, products, services, materials, and/or configured deliverables. In particular, the Services do not incorporate forward-looking predictions as to the performance of any index or investment and the data incorporated into the Services such not be taken as indicative of future performance of any index or investment. This disclaimer is integral to establishing pricing and constitutes an essential part of these terms.
13.1 Jurisdiction. This Agreement 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.
13.2 Entire Agreement. The Agreement between the parties sets out the entire agreement between the parties and overrides any prior correspondence or representations, and all other terms and conditions, including without limitation any other terms contained within a purchase order or any document supplied by Member to ET. The parties acknowledge that this Agreement has not been entered into in part or whole in reliance on any warranty, statement, promise or representation by the other party, except as set out in this Agreement.
13.3 Assignment. Neither party will assign or otherwise transfer its rights or responsibilities under the Agreement to any third party without the other party’s prior written consent.
13.4 Updates. ET may from time to time make reasonable updates to these Terms; provided, however, any existing Letters of Agreement shall remain subject to the version of the Terms in effect as of the date of the Letter of Agreement until the expiration of the applicable Letter of Agreement.