Last revision: 13th August 2008

1. Definitions

“AMEE Data”	All data, factors, algorithms, methodologies and related data and text owned, managed, controlled through or licensed by AMEE via the Managed Platform.
“AMEE Platform”	The Calculator Engine, the Profile Engine, and their combination.
“AMEE Profile”	Any entity for which profiling data is stored in the AMEE Platform. For example, utilisation data.
“AMEE Brand”	AMEE trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
“API”	Application Programming Interface. A software interface that another software interface can communicate with.
“Blog”, “Website”	Updates and information available via http://www.amee.cc and/or http://www.amee.com and sub-domains therein.
“Calculator Engine”	Software that enables CO2, CO2e and related calculations to be performed on or with AMEE Data via an API;
“Client”	Any third party to whom access to the Service has been given.
“Client Data”	All data, software and assets owned by the Client, including its own user’s data.
“IntellectualProperty Rights”,“IPR”	All rights of and in the nature of copyright including but not limited to; all data, database rights, software rights, technical architecture rights, operational code and/or technical systems rights, patent rights, design rights (registered and/or unregistered), creative works, editorial copy, images, rights to trademarks (registered and/or unregistered) and all analogous rights whether now existing or created in the future to which either party owns now or at any time after the date of this letter and may be entitled to in respect of materials and services created in the course of providing Service;
“Managed Platform”	The hardware systems, software systems and facilities (e.g. bandwidth, power) that enable the AMEE Platform to be provided.
“Open Source”	Open licensing frameworks such as, but not limited to, GPLv3 and/or Creative Commons.
“Profile Engine”	Software that enables the storage, updating, retrieval of and transactions on AMEE Profiles and related saved information via an API;
“Service”	The Managed Platform and the AMEE Platform owned and operated by AMEE.
“SLA”	The Service Level Agreement associated with the Managed Platform.
“Technical Documentation”	Information available via http://trac.amee.cc
“User”	An entity that may have an AMEE Profile. For example, a Client may create an AMEE Profile for one of the Client’s Users.
“Wiki”	Information available via http://wiki.amee.cc

1. TERM

1.1 The term of this Agreement (the Term) shall be the Initial Term commencing on the Effective Date (as both are defined in the Services Contract) and continuing thereafter unless and until terminated by either party in accordance with this Agreement.

2. INTELECTUAL PROPERTY RIGHTS

2.1. The Client acknowledges that AMEE is the owner and/or licensee and/or aggregator of any and all copyright and IPR in the Service. For the avoidance of doubt, the AMEE Data aggregated and presented by the Service are the copyright of many parties (for example Crown Copyright). The Service and the AMEE Brand are wholly owned and operated by AMEE;

2.2. AMEE acknowledges that the Client is the owner and/or licensee and/or aggregator of any and all copyright and IPR in the Client Data;

2.3. AMEE acknowledges that the Client and its Users are the owner and/or licensee of any and all copyright in the User’s data, the Terms of which are governed explicitly between the Client and its Users. For the avoidance of doubt, the Client’s User’s identity data including but not limited to; individual names, full postal addresses, e-mail addresses, must not be stored in the Service. The Client must use the AMEE Profile Engine’s anonymous identities to store its User profile data against (for example, the number of kWh used). These AMEE Terms and Conditions define the relationship between AMEE and the Client. It is the responsibility and the liability of the Client to ensure it has suitable clauses with its Users regarding Data Protection and data management;

3. SERVICE PROVISION

Each party hereby agrees that it shall;

3.1. work with the other to implement the Service with expediency;

3.2. comply with all relevant obligations under the UK Data Protection Act 1998 (as amended or re-enacted from time to time) and hereby warrants its compliance therewith;

3.3. implement and maintain appropriate and reasonable security procedures to prevent damage, loss or corruption of, or unauthorised access to, confidential information or other data and materials;

3.4. undertake that it and its officers, employees and agents shall maintain in strictest confidence and not divulge or communicate to any third party any confidential information relating to the other including, but not limited to: trade secrets or business dealings, transactions or affairs, any pricing information, marketing plans, methodologies, technologies and proprietary software. The provisions of this Clause shall survive the termination of this Agreement in perpetuity.

3.5. comply with usage guidelines provided by the other in respect of the use of the other’s name and trade marks;

3.6. work with the other to reasonably promote both the Service and the Client’s usage of it.

4. LIABILITIES

4.1 AMEE undertakes to use all reasonable skill and care in the provision of the Services but the Client agrees that AMEE shall have no liability to the Client in respect of any of the following events or aspects of the Services and the Client agrees that such limitation of liability is reasonable in the circumstances:

4.1.1 any loss or damage suffered by the Client as a result of inappropriate Client activity including, but not limited to, malicious usage of the AMEE platform executed using the Client’s authorised account; or

4.1.2 any loss or damage suffered by the Client as a result of AMEE downtime caused by essential maintenance or temporary operational failure or failure of the internet.

4.2 The Client undertakes to use all reasonable skill and care in its execution, integratation  and ongoing interation with the Service in a manner considerate to the SLA. Specifically the Client shall not perform or allow the performance of (whether intentional or not) malicious use of the Service including, but not limited to; any denial of service activity or any activity that will detrimentally affect the performance of the Service outside of the reach of the SLA. AMEE reserves the right to seek compensation in the event of such use.

Beyond terms declared herein, it is agreed that without prior written agreement by an authorised signatory, neither party shall;

4.3. incur or be liable for any expense of the other;

4.4. assume any liability whatsoever or howsoever caused for the actions of the other for any reason within the bounds of English law;

4.4. be liable to the other for any loss of revenues, profit, business, production, goodwill, anticipated savings or any other kind of indirect, special or consequential loss or damage;

4.5. act in any defamatory manner regarding the other.

5. CLIENT WARRANTIES

The Client warrants that;

5.1. it has full right and title to enter into this Agreement and to grant any rights to AMEE that may be necessary for the execution of the Service;

5.2. it shall use the Service to benefit common endeavour in accelerating positive reductions in energy consumption;

5.3. it will provide reasonable accreditation and to any 3rd party IPR, and AMEE for the use of the Service. Guidelines are defined at http://wiki.amee.cc/index.php/Copyright#Attribution;

5.4. shall not infringe any rights of any party including but not limited to: research, patents, trade marks, copyright, or any other proprietary rights;

5.5. it will provide AMEE a minimum of 28 days notice of any dates or times of specific activity that will exceed an estimated capacity of 30% greater than nominal usage (as agreed via Appendix A). This is to enable AMEE to adequately capacity plan, manage and operate it’s infrastructure.

5.6. it will allow and authorise anonymous and aggregate statistics to be made publicly available via the AMEE platform. For the avoidance of doubt, such statistics will not identify the Client nor any of its users. An example could be “the total aggregate CO2 across all AMEE Clients is more than 50,000,000kg”.

5.7. where it is able to within the scope of projects linked to this Agreement, it shall release any software, data or creative works that it produces under an appropriate Open Source license of its choosing.

6. AMEE WARRANTIES

AMEE shall;

6.1. operate the Service as a neutral platform;

6.2. operate the Service to benefit common endeavour in accelerating positive reductions in energy consumption;

6.3. provide the Service to AMEE Clients;

6.4. reserve the right to restrict access to commercially copyright data. For the avoidance of doubt, this clause is specifically to address breach of any third party Terms and Conditions or Licensing Terms in such case that it may be reasonably applicable. Such additional Terms and Conditions will be published and made available as and when they exist;

6.5. on the request of the Client, remove the Client Data. Such removal shall be carried out within 30 working days of the Client’s reasonable request. AMEE reserves the right to charge for its reasonable effort in providing this service;

6.6. wherever possible, license the underlying software that provides the API under General Public License version 3 or any later version (http://www.gnu.org/copyleft/gpl.html) or equivalent license(s) such as may be required to ensure that it is Open Source;

6.7. wherever possible, license AMEE Data over which AMEE is the sole owner under the Creative Commons Non-commercial-Attribution-ShareAlike 3.0 license
(http://creativecommons.org/licenses/by-nc-sa/3.0/) or related licenses as may be appropriate;

6.8. reasonably aim to operate the Service as a long-term, sustainable project for the benefit of everyone: the purpose of which is to enable certain parties to engage with the project on a free, non-profit, or low-cost basis. Such engagement and its fees are at AMEE’s sole discretion;

6.9. use reasonable commercial efforts to provide the Service to the standards defined in the SLA and, within the remit of such, comply with reasonable requests from the Client for documentation, technical support, enhanced capacity and/or other services which may be deemed necessary for the successful provision of the Service.

6.10. reserve the right to negotiate additional fees for service(s) or items such as, but not limited to: increased scale of any kind, custom research or development, or non-standard support that is beyond ongoing Service provision.

7. FEES

7.1. where a Service Contract (SC01) is signed and/or agreed by both parties, AMEE will charge the Client fees defined therein to provide the Service;

7.2. where mutually agreed in advance, the Client shall pay AMEE addditional fees to cover its time and effort in execution, implementation, testing, support and/or bespoke development that the Client may require;

7.3. recurring fees will be invoiced in advance. Other fees will be invoiced in arrears;

7.4. The Client shall pay invoices within 30 days of receipt;

7.5. All fees exclude VAT.

7.6. where a Service Contract is not signed and/or agreed by both parties, provision of the Service is at AMEE’s sole discretion. AMEE’s provision of an API key to the Client does not bind AMEE to provide the Service. AMEE’s provision of an API key to the Client does require the Client to adhere to these Terms and Conditions, specifically clause 4.2.

8. CONFIDENTIAL INFORMATION

8.1 Each party undertakes with the other that unless otherwise agreed in writing it shall and shall procure that its officers, employees and agents shall maintain in strictest confidence and not divulge or communicate to any third party any confidential information relating to the other including, but not limited to: trade secrets or business dealings, transactions or affairs, any pricing information, marketing plans, methodologies, technologies and proprietary software. The provisions of this Clause shall survive the termination of this Agreement in perpetuity.

9. TERMINATION

Either party shall may terminate this Agreement forthwith by written notice:

9.1. if the other commits any material or persistent breach of its obligations under this Agreement which in the case of a breach capable of remedy is not remedied within 30 days of service of a notice specifying the breach and requiring it to be remedied; or

9.2. if a receiver, administrator, administrative receiver, liquidator or other similar officer is appointed over all or any part of the other’s assets (including the other’s interest under this agreement) and is not removed within 7 days of the appointment or if the other enters into liquidation (other than for the purpose of a solvent reconstruction or amalgamation) or if a petition is presented for the winding up of the other and is not discharged within 30 days or if the other shall propose or enter into any arrangement or compromise for the benefit of one or more of its creditors or any analogous procedure or step is taken in any jurisdiction.

9.3. AMEE may terminate this Agreement on immediate written notice in the event of any transfer or assignment of this Agreement or attempted transfer or assignment of this Agreement by the Client.

9.4. AMEE may terminate this Agreement on immediate written notice in the event of any breech of Clause 4.2.

9.4. Either party may terminate this Agreement on 90 (ninety) days written notice to the other at any time after the Initial Term.

9.5. Immediately on any termination of this Agreement AMEE shall cease to provide the Services to the Client and may delete the Client Data;

9.6. Termination of this Agreement shall be without prejudice to any rights of a party accrued before termination.

10. GENERAL

10.1. Nothing in this Agreement shall be deemed to create a partnership or joint venture or relationship of agency between the parties.

10.2. Each party confirms that this Agreement sets out the entire agreement and understanding between the parties and that it supersedes all previous agreements,
arrangements and understandings between them.

10.3. The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.

10.4. Any material change in the nature of either party or in circumstances or in scope must be notified to the other and considered pursuant to this Agreement.

10.5. The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.

10.6. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure or delay is the result of any cause or circumstance beyond the reasonable control of that party and that failure or delay could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 90 (ninety) days, the other party may terminate this Agreement immediately by written notice.

10.7. This Agreement shall be governed by and construed in all respects in accordance with English law. Both parties agree to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising in relation to any clause herein.

10.8. If any court of competent jurisdiction holds any provision of this Agreement invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect so as to leave the validity of such provisions intact.

10.9. This data and information provided by AMEE is done so on an ‘as-is’ basis and AMEE does not make any warranties regarding it and disclaims all and any liability for damages resulting from its use.

11. DISPUTES

11.1 Any dispute under this Agreement shall in the first instance be referred to the parties’ respective contract managers who shall attempt to resolve the dispute to the satisfaction of both parties within 30 days. If they fail to resolve the dispute it shall be referred to a senior executive of the parties. If the executive fails to resolve the dispute within 30 working days either party may pursue any remedies available to it under this Agreement or at law.

12. NOTICES

12.1 Unless otherwise stated any notice given under this Agreement shall be in writing and may be delivered to the other party by hand or sent by pre-paid post or facsimile transmission to the address or transmission number of that party specified or such other address or number as may be notified under this Agreement by that party from time to time for this purpose.

12.2 Electronic transmission of day to day communications to support the CI Services shall be deemed sufficient notice provided that a confirmatory email is received from the other party. Electronic transmission will not suffice for any termination notice.

13. FORCE MAJEURE

13.1 Neither party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure or delay is the result of any cause or circumstance beyond the reasonable control of that party and that failure or delay could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 90 (ninety) days, the other party may terminate this Agreement immediately by written notice.

14. CHANGES TO TERMS AND CONDITIONS

14.1 AMEE reserves the right to make changes to these Terms and Conditions at any time provided that it shall give the Client reasonable notice of any such changes, and the changes shall apply as from the date stated in the notice. The receipt of an order or instruction or use of the Service following notice of any changes to these Terms and Conditions shall be deemed acceptance of the changes by the Client.

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