Terms of Use SustainCERT Registry

Parties

SustainCERT S.A., a société anonyme incorporated under the laws of Luxembourg, located at 33 Boulevard Prince Henri, L-1724, Luxembourg (SustainCERT)
You (Account Holder)

Background

Note: Please refer to Schedule 1 for definitions.

A. These Terms of Use set out the terms on which SustainCERT offers to make the Registry available to the Account Holder.

B. The Registry serves as the registry for Interventions, Programs of Interventions and Claimed Impact Units (resulting from verified Interventions or Programs of Interventions).

C. The Account Holder wishes to use the Registry on the terms and conditions of these Terms of Use, as amended from time to time.

By using the Registry, the Account Holder agrees to these Terms of Use.

Schedule 1 Dictionary

Definitions

The following definitions apply in this Terms of Use, unless the contrary intention appears:

Administration Account means an account held by SustainCERT in the Registry for the purposes of dealing with Impact Units in the manner contemplated in clause 13.4.

Administration Owner has the meaning given in clause 13.4(b).

Applicable Trade Control Laws means any sanctions, export control, or import laws, or other regulations, orders, directives, designations, licences, or decisions relating to the trade of goods, technology, software and services which are imposed, administered or enforced from time to time by Australia, the United States, the United Kingdom, the EU, EU Member States, Switzerland, the United Nations or United Nations Security Council and also includes U.S. antiboycott laws and regulations.

Authorised Account Holder means each officer or employee (each a natural person) of the Account Holder, who in each case is from time to time authorised by the Account Holder to access and use the Registry on behalf of the Account Holder.

Business Day means any day except a Saturday, Sunday, or a public holiday in Luxembourg.

Business Sub-Account means a sub-account in an Account Holder's Omnibus Account for the purposes of holding Impact Units on behalf of the Account Holder's corporate customers or otherwise to facilitate the Account Holder undertaking a business activity connected to the Registry that has been approved by SustainCERT.

Cancellation Account means an account in the Registry that lists the Disputed Impact Units, Impact Units transferred to third parties without accounts in the Registry and Impact Units held by Users that have exited the Registry.

Capability has the meaning given in clause 1.1(a).

Claim has the meaning given in clause 14.6(b).

Commencement Date has the meaning given in clause 2.

Confidential Information means any information of whatever kind disclosed or revealed by the disclosing party to the revealing party under or in relation to the Terms of Use that: (a) is by its nature confidential; (b) is designated by the disclosing party as confidential; (c) the receiving party knows or reasonably ought to know is confidential; or (d) any information that is deemed to be Confidentiality Information pursuant to clause 8. Confidential Information does not include information that: (e) is published or has otherwise entered the public domain without a breach of the Terms of Use; (f) is obtained from a third party who has no obligation of confidentiality to the disclosing party; or (g) is independently developed or obtained without breach of the Terms of Use.

Data means all data, including, but not limited to, transactional data, environmental data, Project activity-related data, Impact Unit data, corporate data and personal information provided by the Account Holder to SustainCERT, and such data being stored in the Registry.

Dispute means any disagreement, claim, allegation, concerning the generation, creation, ownership, issuance, validity, legality or registration of any Impact Units that may arise between the Account Holder and any third party including SustainCERT.

Disputed Impact Units means Impact Units subject to a suspension notice in accordance with clause 6.8.

Due Date means the date at which any Fees charged and invoiced in accordance with the Payment Terms must be paid.

End Date has the meaning given in clause 2.

Environmental Benefit(s) means all legal and equitable right, title, interest and benefit arising from or associated with (a) the protection, conservation or enhancement of the environment and/or biodiversity, or (b) GHG Reductions, or (c) any other legal and equitable right, title, interest or benefit relating to the environmental benefit as may be created either by law, SustainCERT, contract or otherwise.

Fees means the fees payable under these Terms of Use for use of the Registry, as published or made known to the Account Holder by SustainCERT from time to time.

Fee Schedule means the schedule of Fees published by SustainCERT from time to time.

Financial Market Settlement System means an exchange, clearing house, central counterparty or other settlement system (as determined by SustainCERT) that acts on settlement instructions to settle transactions.

Force Majeure means an event or circumstance that: (a) was unforeseeable as at the date of these Terms of Use; (b) is unavoidable; and (c) cannot reasonably be overcome by a party affected by it. Force Majeure includes, without limitation, fire, flood, earthquake, epidemic, war, riot and martial law.

GHG Reduction means the removal, limitation, reduction, avoidance, sequestration or mitigation of one metric ton of emissions of GHGs measured in carbon dioxide equivalent from the atmosphere.

Greenhouse Gases or GHGs means the six gases listed in Annex A to the Kyoto Protocol.

Good Industry Practice means, in relation to any particular circumstances, the degree of skill, diligence, prudence, foresight and operating practice which would reasonably and ordinarily be expected from a reasonably skilled and experienced provider of equivalent services and/or data of a similar type to that provided pursuant to these Terms of Use under the same or similar circumstances and conducted in accordance with all applicable laws, rules and regulations.

Government Authority means: (a) a government, whether foreign, federal, state, territorial or local; (b) a department, office or minister of a government acting in that capacity; or (c) a commission, delegate, instrumentality, agency, board, or other governmental, semi- governmental, judicial, administrative, monetary or fiscal authority, whether statutory or not, and includes any relevant international agency.

Impact Unit means each individual unit relating to an Environmental Benefit, generated from an Intervention or Program of Interventions and carried out under and in accordance with the SustainCERT Requirements and eligible to be listed in Registry as determined by SustainCERT. One Impact Unit represents one GHG Reduction.

Indemnified Party has the meaning given in clause 12.1(a).

Intellectual Property Rights means all rights in any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights owned, used, or intended to be used, by a party whether or not registered, registrable or patentable.

Interest Rate means for any date, the per annum rate of interest equal to the European Central Bank’s cash rate plus 8% per annum, calculated daily and compounding monthly.

Intervention means any action that introduces a change to a Scope 3 Activity. This could include a new technology, practice or supply change (for example, to a different product input or sourcing location) to reduce or remove GHG emissions. An Intervention may include changes to several Activities that reduce or sequester emissions in different ways and that may or may not be included within the Scope 3 Inventory. An intervention can consist of one or several activities of the same or different type following the same validation and verification cycle.

Legal or Beneficial Ownership Rights means, with respect to any Impact Unit, any contractual, proprietary, equitable, or other right to direct or control the sale or other disposition of, or the retirement of, such Impact Unit.

Losses has the meaning given in clause 12.1(a).

Omnibus Account means an account held by the Account Holder in the Registry for the purposes of holding Impact Units on behalf of the Account Holder's corporate customers or otherwise to facilitate the Account Holder undertaking a business activity connected to the Registry that has been approved by SustainCERT.

Operative Documents means any policies, documents, guidelines, operating procedures, requirements and guidance issued by SustainCERT, including, but not limited to the Privacy Policy, Data Protection Policy, Website terms of use, Terms and Conditions for Services, as updated from time to time.

Principal means a third party who owns Impact Units or wishes to utilise the Registry services and who has appointed a Super User to act on its behalf for the purposes of using the Registry services.

Privacy Policy means the SustainCERT privacy policy located on the Website, as updated from time to time.

Program of Interventions refers to an unlimited number of interventions, grouped under the same ‘umbrella program’, where each activity complies with the validated Quantification Approach. All new interventions joining the Program post-initial validation will have to apply the relevant quantification approach validated at Program level and will have to be compliant with a set of inclusion criteria defined by the Program at the outset.

Quantification Approach (QA) means an approach (or methodology) to quantify GHG emission reductions or removals enhancements in the context of an intervention.

Registry means the VIVID electronic platform managed by SustainCERT which lists Projects that follow the applicable protocols and standards for the relevant Project and record the issuance, transfer, retirement and cancellation of Impact Units.

Registry Account means an account held by the Account Holder in the Registry in accordance with the procedures set out by SustainCERT.

Related Unit means a connected, subset, linked, or other related product that is legally distinct from an Impact Unit and embeds underlying Impact Units or rights to acquire underlying Impact Units in any form.

Sanctioned Party means: (a) any person or entity that is designated for export controls or sanctions restrictions under any Applicable Trade Controls Laws, including but not limited to those designated under the U.S. List of Specially Designated Nationals and Blocked Persons, Foreign Sanctions Evaders List, Entity List, Denied Persons List, Debarred List, Australia’s Consolidated List, the UK Consolidated List and the EU Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions; and (b) any entity 50% or more owned or any entity which is controlled, directly or indirectly, by one or more of the persons or entities in paragraph (a).

Scope 3 Activity (from Scope 3 Standard): An individual source of emissions included in a scope 3 category. [Added for the purposes of this Guidance]: An individual activity, representing a source of emissions that, when summed with other sources of emissions define the overall Emissions Factor.

Scope 3 Inventory (from Scope 3 Standard): A quantified list of an organisation’s GHG emissions and sources outside of scope 1 and scope 2 emissions.

Super User means any Account Holder of the Registry who does so in the capacity as a broker, agent or representative of any kind on behalf of a Principal for the purposes of utilising the Registry services.

SustainCERT Bank Account means the bank account nominated by SustainCERT from time to time for the payment of fees by the Account Holder.

SustainCERT Claims Guidance means any guidance issued by SustainCERT prescribing the requirements that must be met for an Account Holder to demonstrate their right to be issued Impact Units into their Registry Account (or, in the case of Super Users, the Principal’s Registry Account), as published and amended from time to time.

SustainCERT Requirements means the rules and guidance for Interventions, Programs of Interventions and Impact Units adopted by SustainCERT and updated from time to time, including but not limited to:

(a) any SustainCERT Claims Guidance;

(b) the SustainCERT Verification Requirements for Value Chain Interventions; and

Territory means Luxembourg and the United States of America.

Website means the SustainCERT website located at https://www.sustain-cert.com/.

1 General Terms of Use

1.1 Exclusivity

(a) The Account Holder appoints SustainCERT as its exclusive registry provider for any Impact Units it lists, manages and/or transacts in the Registry.

(b) The Account Holder appoints SustainCERT as its exclusive validation and verification provider of any Interventions / Programs of Intervention or Impact Units that are submitted for validation and verification under the SustainCERT Requirements.

1.2 General obligations

(a) The Account Holder acknowledges and agrees that when using the Registry, the Account Holder will be subject to, and must comply with, these Terms of Use as modified from time to time in accordance with clause 14.1.

(b) The Operative Documents form part of these Terms of Use and any failure by the Account Holder to comply with the Operative Documents will be regarded as a breach of these Terms of Use.

(c) If the Account Holder does not agree to these Terms of Use, the Account Holder may not access or otherwise use the Registry.

1.3 Order of precedence

Where there is any inconsistency between these Terms of Use and the Operative Documents, the Terms of Use will prevail over the Operative Documents to the extent of any inconsistency.

2 Term

These Terms of Use commence on i) signature by the Account Holder of an agreement incorporating these Terms of Use by reference, or ii) the date on which the Account Holder indicates, by accessing the Registry, that the Account Holder agrees with and accepts the Terms of Use, whichever is earlier (Commencement Date), and these Terms of Use shall continue in effect until terminated in accordance with clause 13 (End Date).

3 Fees and charges

3.1 Fees

(a) Subject to clause 3.1(b), you must pay SustainCERT:

(i) the Fees; and
(ii) any other amount payable to SustainCERT under the Terms of Use, without set off or delay by wire transfer or bank deposit (or other payment method approved by SustainCERT in writing) within 30 days from the date of SustainCERT issuing the invoice (Payment Terms).

(b) SustainCERT will invoice the Fees in accordance with any Fee Schedule, and all payments are due in full without deduction or set-off within 30 days of the date of our invoice.

3.2 Late payment

(a) If Account Holder fails to make payment in accordance with the Payment Terms, such amounts will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from and including the Due Date to, but excluding, the date on which the delinquent amount is paid in full.

(b) Acceptance of late payment of any such amounts or of any interest accrued thereon shall not constitute a waiver by SustainCERT of the Account Holder's default with respect to such late payment, nor prevent SustainCERT from exercising any other rights or remedies available to it under these Terms of Use or any applicable law, for any loss or damage suffered in excess of the repaid amount.

(c) If delinquent fees are not paid by the Account Holder within 30 days of the Due Date, SustainCERT maintains the right to freeze the Account Holder's access to the Account Holder’s Registry Account, Omnibus Account and / or Business Sub-Account (as applicable) until such time as Account Holder pays all outstanding fees, inclusive of interest.

(d) SustainCERT shall bear no liability to the Account Holder or any third party in connection with SustainCERT's exercise of its rights and remedies hereunder.

3.3 Changes in Fees

(a) SustainCERT may, upon 30 days' notice to Account Holder and in its sole discretion, increase or decrease any or all of the fees and costs payable hereunder at any time. In no event shall any portion of such fees and costs be prorated or refunded to Account Holder after the End Date or termination or suspension of Account Holder's access to the Registry.

(b) Any use of the Registry by the Account Holder after the effective date set forth in the notice shall be deemed to constitute acceptance of such changes to the fees and costs payable hereunder.

3.4 Taxes and other charges

(a) Account Holder shall be responsible for all taxes and charges imposed by a Government Authority related to the use of the Registry and all related hardware, software, and services, and any other costs the Account Holder incurs in connection with the purchase, sale, posting, or transfer of Impact Units or any other use of the Registry. Should any Fees be subject to withholding tax by any Government Authority, you shall reimburse SustainCERT for such withholding tax.

(b) For the purposes of these Terms of Use, "taxes" includes, but is not limited to, any or all ad valorem, property, occupation, severance, first use, conservation, gross receipts, privilege, sales, use, consumption, excise, lease, and transaction taxes, and any other taxes and governmental charges, fees, and assessments, or increases therein, other than taxes based on SustainCERT's net income or net worth.

4 Accounts and Business Activities

4.1 Registry Accounts

(a) An Account Holder may request that SustainCERT open a Registry Account for that Account Holder in accordance with the procedures set out by SustainCERT.

(b) SustainCERT will only open a Registry Account for an Account Holder if:

(i) the Account Holder is not an individual (being a natural person);
(ii) the Account Holder has indicated its acceptance of these Terms of Use; and
(iii) the Account Holder has provided sufficient identification information including satisfying any relevant KYC or other background check requirements in accordance with the procedures set out by SustainCERT including the SustainCERT Requirements.

4.2 Omnibus Account and Sub-Account

(a) An Account Holder may request that SustainCERT open an Omnibus Account with one or more Business Sub-Accounts for all transactions related to the notified business activities performed on behalf of the Account Holder's customers.

(b) SustainCERT may, in its sole and absolute discretion, refuse to approve a request under clause 4.2(a).

(c) Where Account Holder has notified SustainCERT of its business activities in relation to its use of the Registry, Account Holder represents and warrants that those activities remain the sole business activities in relation to Account Holder’s use of the Registry for the duration of the Term, unless otherwise notified to SustainCERT in writing [10] calendar days in advance of the change in business activities.

4.3 Related Units

(a) The Account Holder may not conduct any of the following business activities without the express written consent of SustainCERT, which is to be granted in SustainCERT’s sole and absolute discretion:

(i) creating Related Units;
(ii) marketing Related Units; or
(iii) transacting in Related Units in any form whatsoever.

(b) SustainCERT shall bear no liability to the Account Holder or any third party in connection with the Account Holder’s conduct of the activities identified in clause 4.3(a).

(c) SustainCERT reserves the right to grant, limit, suspend or remove the Account Holder's access to certain functionality in the Registry that supports the business activities identified in clause 4.3(a) at any time.

4.4 Closing an account

(a) The Account Holder may close a Registry Account, Omnibus Account and/or Business Sub-Account, at any time by providing written notice to SustainCERT in accordance with the procedures set out by SustainCERT including any user guidelines.

(b) In the event of the Account Holder providing written notice to SustainCERT in accordance with clause 4.4(a), the Account Holder will retain access to its other accounts on the Registry (if any) and these Terms of Use will continue to apply until terminated under clause 13.

(c) Upon receiving notification under clause 4.4(a), or carrying out its powers under clause 13, SustainCERT will record the Impact Units listed in the relevant Registry Account, Omnibus Account and / or Business Sub-Account, of that Account Holder (if any) in SustainCERT's Cancellation Account.

5 Super Users

(a) The Account Holder may not conduct any of the following business activities in relation to its use of the Registry without providing advance written notice to SustainCERT:

(i) purchasing, holding, transferring, retiring or cancelling Impact Units on behalf of third parties; or
(ii) acting as Super User on behalf of a Principal who owns or intends to own Impact Units.

(b) Where the Account Holder conducts the business activities referred to in clause 5(a), the Account Holder represents and warrants that:

(i) in carrying out such business activities it holds all necessary authorities, licenses and/or approvals required to undertake these activities in each of the jurisdictions that it is performing such business activities in; and
(ii) where applicable, that Know-Your-Client checks have been conducted on each of the customers it is undertaking the business activities on behalf of; and
(iii) if acting as Super User, it has full, valid and current authority to represent and act on behalf of the Principal (who shall be fully liable for the acts and omission of the Super User) and that such authority has not been revoked.

(c) If the Account Holder conducts any of the business activities referred to in clause 5(a), it shall provide such evidence as is required by SustainCERT to confirm its authority to undertake each such activity. The Account Holder shall immediately notify SustainCERT if any authority or permission required to undertake the relevant business activity is amended or revoked.

(d) SustainCERT reserves the right to grant, limit, suspend, or remove the Account Holder's access to certain functionality in the Registry that supports the business activities identified in clause 5(a) at any time.

6 Interventions and Impact Units

6.1 Listing of an Intervention or Program of Interventions

(a) The Account Holder may request that SustainCERT list an Intervention or Program of Interventions in the Registry in accordance with the procedures set out by SustainCERT including any SustainCERT Requirements.

(b) SustainCERT will require any Account Holder who intends to list an Intervention or Program of Intervention to provide all documentation and information as required by the relevant SustainCERT Requirements.

(i) the Account Holder has registered with SustainCERT and submitted all necessary information to SustainCERT in accordance with the SustainCERT Requirements;
(ii) the Account Holder has complied with all relevant laws in relation to the Intervention or Program of Intervention; and
(iii) the Account Holder has complied with any other requirements specified in the relevant SustainCERT Requirements or by SustainCERT.

(d) SustainCERT may, in its absolute discretion, refuse to list any Intervention or Program of Intervention in the Registry.

6.2 Issuance of Impact Units

(a) The Account Holder may request that SustainCERT issue Impact Units to its Registry Account, its Omnibus Account or its Business Sub-Account (as applicable) in accordance with the relevant SustainCERT Requirements.

(b) SustainCERT will require any Account Holder who intends to issue Impact Units in the Registry to provide all documentation, attestations and information as required by the relevant SustainCERT Requirements.

(i) the Account Holder has submitted complete and signed original or certified electronic versions of all attestations and documentation required under the relevant SustainCERT Requirements and these Terms of Use;
(ii) SustainCERT is satisfied (based solely on the information provided by the Account Holder and third parties) that the Intervention or Program of Intervention for which Impact Units are to be issued meets the relevant SustainCERT Requirements;
(iii) SustainCERT is satisfied (based solely on the information provided by the Account Holder and third parties) that the Account Holder has demonstrated the right to be issued with Impact Units in accordance with any SustainCERT Claims Guidance;
(iv) SustainCERT is satisfied (based solely on the information provided by the Account Holder and third parties) that the Account Holder complies with all relevant laws;
(v) the Account Holder has complied with any other requirements specified in the relevant SustainCERT Requirements or by SustainCERT from time to time.

(d) SustainCERT may, in its absolute discretion, refuse to issue or list any Impact Unit in Registry.

6.3 Over issuance of Impact Units

(a) The Account Holder acknowledges and agrees that in the event that SustainCERT determines that the number of Impact Units issued to the Account Holder was for any reason in excess of the correct number according to the applicable SustainCERT Requirements, SustainCERT may in its discretion cancel the quantity of Impact Units that were over-issued.

(b) Without limiting SustainCERT’s rights under clause 6.3(a), the Account Holder acknowledges and agrees that in the event that SustainCERT determines that GHG reductions or removals for an Intervention or Program of Intervention were incorrectly quantified or reported due to a deliberate act or omission of the Account Holder, such that the number of Impact Units issued to the Account Holder was in excess of the correct number according to the requirements of the applicable SustainCERT Requirements, it is the Account Holder's responsibility to compensate for the over-issuance of Impact Units, irrespective of whether the Impact Units are still held by the Account Holder.

(c) The obligation to compensate for any over-issuance of Impact Units contained in clause 6.3(b) survives the End Date, and exists until the date which is six years after the date of issuance of such Impact Units.

6.4 Impact Unit rules

(a) SustainCERT will list any Impact Units issued in accordance with clause 6.1(a) in the Registry (and record it against the relevant Intervention or Program of Intervention).

(b) The Account Holder must not represent that it has been issued with Impact Units, or is otherwise entitled to be issued with or claim the benefit of Impact Units, except where it has been issued with those Impact Units by SustainCERT in accordance with these Terms of Use.

(d) Impact Units issued by SustainCERT in accordance with clause 6.1(a) may only be retired by SustainCERT in accordance with clause 6.7 and SustainCERT Requirements.

(e) The Account Holder must not hold an Omnibus Account or Impact Units on an omnibus basis except in accordance with clauses 4.2. SustainCERT reserves the right to audit an Account Holder if it reasonably believes that the Account Holder is using its account on the Registry on an omnibus basis.

6.5 Transfer of Impact Units

(a) No transfer, assignment, disposal of or other dealing with Impact Units shall be effective unless effected by SustainCERT and recorded in the Registry in accordance with this clause 6.5.

(b) Where the Account Holder (transferor) wishes to transfer certain Impact Units from its Registry Account to another Account Holder (transferee), the transferor is responsible for effecting such transfer correctly and in accordance with all applicable rules and guidelines.

(c) For the avoidance of doubt, Impact Units may only be transferred between Registry Accounts and cannot be transferred outside of the Registry.

6.6 Erroneous transfer of Impact Units

(a) Upon receiving notification from the Account Holder or a Financial Market Settlement System that there has been an erroneous or fraudulent dealing related to Impact Units in the Registry, SustainCERT may at its total discretion reverse the transaction or movement of Impact Units, or instruct the Account Holder to do so, or remove any Impact Units being held in an Account Holder's Registry Account, Omnibus Account and / or Business Sub-Account (as applicable) in accordance with any instructions received from the Account Holder or the relevant Financial Market Settlement System.

(b) SustainCERT shall have no liability whatsoever for exercising its discretion under this clause 6.6 if the written notification provided by an Account Holder or Financial Market Settlement System is subsequently determined to have been given in error or fraudulently.

6.7 Cancellation and retirement of Impact Units

(a) The Account Holder may request that SustainCERT cancel or retire Impact Units in accordance with the relevant SustainCERT Requirements and the procedures set out by SustainCERT.

(b) The Account Holder acknowledges and agrees that, if the Account Holder wishes SustainCERT to cancel or retire Impact Units, upon such cancellation or retirement:

(i) all legal and beneficial title and interests in such Impact Units will be extinguished; and
(ii) neither SustainCERT, the Account Holder, nor any other person with Legal or Beneficial Ownership Rights will have any further rights to take the benefit of such Impact Units nor the underlying Environmental Benefits corresponding to such Impact Units.

(c) For the avoidance of doubt, the extinguishment of legal and beneficial title and interests in the Impact Unit does not prevent the Account Holder (or any other person with Legal or Beneficial Ownership Rights on whose behalf the Impact Unit is cancelled or retired) from making claims corresponding to the Impact Unit cancelled or retired.

(d) Subject to clauses 7.2(l) and 7.2(m), any instruction by the Account Holder to SustainCERT to cancel or retire Impact Units in accordance with this clause 6.7 is irrevocable, and the Account Holder acknowledges that any such instruction will not be reversed.

(e) SustainCERT acknowledges and agrees that, once the Account Holder has complied with this clause 6.7 and SustainCERT has cancelled or retired the Impact Units, SustainCERT will not take any action to exercise or purport to exercise any right or interest, or deal with or otherwise use, the cancelled or retired Impact Units or the underlying Environmental Benefits corresponding to such Impact Units and considers that no person has any further rights to take the benefit of the cancelled or retired Impact Units or the underlying Environmental Benefits corresponding to such Impact Units.

(f) Impact Units automatically expire 60 months from the date of registration of the Intervention or Program of Intervention related to those Impact Units (or any longer period specified in the SustainCERT Requirements), at which point, SustainCERT will cancel those Impact Units.

6.8 Suspension

(a) SustainCERT may suspend the Account Holder's access to the Registry and the Account Holder’ Registry Account, Omnibus Account and / or Business Sub-Accounts (as applicable), at any time with or without cause and without prior notice to the Account Holder.

(b) Without limiting any other remedies or limiting the foregoing, SustainCERT may suspend the Account Holder's access to the Registry if:

(i) SustainCERT reasonably suspects that the Account Holder has engaged in fraudulent, unethical or illegal activity in connection with the Registry, SustainCERT or its Website;
(ii) the Account Holder has failed to pay any Fees, costs or other amounts required to be paid under these Terms of Use within five Business Days of the applicable Due Date;
(iii) the Account Holder has breached any representation, warranty, covenant or agreement contained herein, or otherwise failed to abide by these Terms of Use, the procedures set out by SustainCERT including the SustainCERT Requirements;
(iv) accreditation or approval for any Impact Units listed by or on behalf of the Account Holder is withdrawn or threatened to be withdrawn for any reason other than such units having been issued in error;
(v) any Impact Units listed by or on behalf of the Account Holder are the subject of, or become the subject of, a Dispute, other than to an issue of erroneous issuance; or
(vi) if the Account Holder is acting as a Super User, any authorisation to act in that capacity has been revoked by the Principal;
(vii) if the Account Holder is carrying out a business activity in connection with the Registry listed in clause 4.3(a) and for which licenses or approvals are required, such licenses or approvals are suspended or revoked by the applicable regulator;
(viii) if the Account Holder is a broker or financial advisor that is not registered or in good standing with the regulatory body responsible for regulating brokers and advisors in a jurisdiction in which the Account Holder is operating; or
(ix) the Account Holder is otherwise acting in a way that may bring the Registry or any of the Projects into disrepute.

(c) SustainCERT shall provide the Account Holder with written notice via email of the circumstances giving rise to the suspension under this section as soon as possible but no later than within seven Business Days following such suspension.

(d) While an Account Holder's access to the Registry and/or Registry Account, Omnibus Account and / or Business Sub-Accounts (as applicable), is temporarily suspended, the Account Holder will have no right to deal with any listed Impact Units in the Registry and any instruction by the Account Holder to SustainCERT to list, record the transfer of, retire or cancel Impact Units in the Registry will be declined.

(e) When SustainCERT forms a reasonable belief in accordance with clause 6.8(b)(i), SustainCERT may make a notation in the Registry and / or the Website indicating the temporary suspension and indicating the relevant Impact Units.

(f) Upon notification by SustainCERT of temporary suspension, the Account Holder will have 10 Business Days to:

(i) show cause in writing as to why the Account Holder should not be permanently suspended from the Registry and why the Disputed Impact Units should not be cancelled; and
(ii) where requested by SustainCERT, supply to SustainCERT replacement Impact Units of a quality and quantity specified by SustainCERT.

(g) If within the 10 Business Day period, the Account Holder fails, to the satisfaction of SustainCERT, to show cause and/or provide replacement Impact Units, SustainCERT may exercise one or more of the following rights:

(i) in case of a suspension pursuant to clause 6.8(b)(i) or 6.8(b)(ii), permanently suspend the Account Holder from the Registry;
(ii) in case of a suspension pursuant to clause 6.8(b)(i) or 6.8(b)(ii), close the Account Holder's Registry Account, Omnibus Account and / or Business Sub-Accounts (as applicable) (in which case the provisions of clause 4.3 shall apply);
(iii) in case of a suspension pursuant to clause 6.8(b)(i) or 6.8(b)(ii), record the Disputed Impact Units in the SustainCERT Cancellation Account; and / or
(iv) terminate these Terms of Use under clause 13.2(a).

(h) For the avoidance of doubt, in the event that a listing or a transaction on the Registry is found to be fraudulent or illegal, SustainCERT reserves the right to refer the matter to the appropriate Government Authorities.

6.9 Legal title to Impact Units

(a) Notwithstanding anything else in this clause 6, the Account Holder acknowledges and agrees that SustainCERT does not in any way guarantee legal title to the Impact Units and the Account Holder relies on any content obtained through the Registry at its own risk.

(b) For the avoidance of doubt, SustainCERT is under no obligation to enquire into the legal title to the Impact Units or any Related Units and does not recognise any interest in an Impact Units or any Related Units other than the interest of the entity named as the holder of the Impact Units or any Related Units in the Registry.

(i) such Impact Units do not have or no longer represent legal title to the Environmental Benefit claimed;
(ii) the Account Holder has not complied fully with these Terms of Use; or
(iii) SustainCERT revokes the registration or approval of the underlying Intervention or Program of Intervention represented by such Impact Units.

7 Representations and warranties

7.1 Account Holder representations and warranties

On the Commencement Date and throughout the term of these Terms of Use, the Account Holder represents and warrants to SustainCERT that:

(a) it is duly organised, validly existing, and in good standing under the laws of the jurisdiction of its formation;

(i) it has all corporate and other authority and all regulatory and other consents, approvals and authorisations necessary for it to legally:
(ii) enter into and perform its obligations under these Terms of Use and the associated procedures set out by SustainCERT including any SustainCERT Requirements;
(iii) engage in all of its activity (including the creation, receipt and transfer of Impact Units) on or relating to the Registry; and
(iv) undertake any business activities in connection with which it seeks permission from SustainCERT to use the Registry;

(b) the person indicating the Account Holder's acceptance of these Terms of Use through the Registry has the authority to enter into these Terms of Use on behalf of the Account Holder, and these Terms of Use are binding on the Account Holder and enforceable against the Account Holder in accordance with their terms;

(c) it has examined and is familiar with the statements and other data and information submitted by it or on its behalf to SustainCERT, and, to the best of its knowledge and belief, such statements and information are true, accurate, and complete;

(d) it will not hold Impact Units for or on behalf of individuals (being natural persons) for investment purposes in any of its Registry Accounts;

(e) it is not acting and will not act in any way as, or similar to, a broker for or engage in any transactions of Impact Units for or on behalf of individuals (being natural persons) for investment purposes;

(f) its business activities in relation to the use of the Registry will only be those notified by the Account Holder to SustainCERT during the account opening process or subsequently in accordance with these Terms of Use;

(g) where applicable to the Account Holder, any Impact Units issued by the Registry have been created and verified in accordance with the relevant SustainCERT Requirements;

(h) where the Account Holder requests issuance of Impact Units under clause 6.2(a), it has a demonstrable right to those Impact Units in accordance with any SustainCERT Claims Guidance;

(i) subject to paragraph (j), all legal title to and all Legal or Beneficial Ownership Rights in each Impact Units, retired or cancelled in any Registry Account, Omnibus Account and / or Business Sub-Account (as applicable), held by the Account Holder are in fact held by the Account Holder;

(j) where an Account Holder holds Impact Units as Super User for a third party with Legal or Beneficial Ownership Rights in such Impact Units, it holds all necessary licenses and authorisations to do so;

(k) all rights, title and interest in all data and other information provided to SustainCERT or input into the Registry by the Account Holder are held by, or licensed to, the Account Holder, or are otherwise derived from sources which are publicly available, and all such data and other information are true and correct in all material respects;

(l) any other representation, warranty, attestation or certification made to SustainCERT by or on behalf of the Account Holder, whether prior to, on or following the Commencement Date is true and correct in all respects it has examined and is familiar with the statements and other data and information submitted by it or on its behalf to SustainCERT, and, to the best of its knowledge and belief, such statements and information are true, accurate, and complete;

(m) it is not (and is not acting as a Super User for or performing transactions on behalf of a customer who is) any person or entity who is a Sanctioned Party;

(n) to the best of its knowledge and belief, it complies with the laws and regulations applicable to it in the jurisdictions in which it operates; and

(o) any payments made by it to SustainCERT will not involve the proceeds of crime; and

(p) it will not do anything to bring SustainCERT or the Registry into disrepute.

7.2 Account Holder acknowledgments

Account Holder acknowledges and agrees that SustainCERT is merely providing a service and, accordingly, acknowledges and agrees that:

(a) it is responsible for providing and maintaining all equipment and technology necessary for the Account Holder to access and use the Registry, and all costs and expenses associated with its accessing and using the Registry;

(b) it shall take all appropriate steps and precautions to safeguard and protect the access, use, and security of the Registry and the Account Holder's access information from unauthorised users;

(c) it will maintain its user ID and password in strict confidence, will allow only its employees and other representatives access to its Registry Account, Omnibus Account and / or Business Sub-Account (as applicable), and will promptly notify SustainCERT of any suspected unauthorised use of the Registry or other breach of security;

(d) it will comply at all times with the Operative Documents as applicable, these Terms of Use, the procedures set out by SustainCERT, and all laws applicable to its use of the relevant Intervention or Program of Intervention;

(e) the use of Registry by the Account Holder in no way creates any right or entitlement on the part of the Account Holder to make any claim in relation to any Impact Unit regarding offsetting of emissions, protection of the environment or biodiversity or any other related matters by the Account Holder, and the Account Holder is entirely responsible for ascertaining the benefits associated with the use and benefits of any Impact Unit;

(f) all Impact Unit transactions shall be performed or settled by it and any third party in accordance with such separate agreements as may exist between the Account Holder and the relevant third party;

(g) the Registry assumes no responsibility for the performance or settlement of any transactions;

(h) SustainCERT does not act as a buyer or seller, or hold title to any Impact Units listed on the Registry;

(i) once information in respect of an Intervention or Program of Intervention has been uploaded or posted to the Registry; such information cannot and shall not be deleted, removed, expunged or altered, except in accordance with SustainCERT's normal operating procedures. Any subsequent changes or additions to information previously posted shall be posted as an update/amendment, but shall not replace the original posting;

(j) in the event that an Account Holder does enter into an Impact Unit transaction with any third party using the Registry, SustainCERT does not guarantee and shall not be responsible for any obligation arising out of such transaction or arrangement or provide any assurance or guaranty that any such transaction or arrangement ultimately will be consummated;

(k) SustainCERT has the authority and power to reverse any transaction or movement of Impact Units upon instruction from a Financial Market Settlement System or any other Government Authority without the authorisation of the Account Holder. If a transaction or movement of Impact Units is reversed in accordance with this paragraph (l), the Account Holder will have no claim against SustainCERT for any remedy;

(l) the Account Holder has the right and the obligation to instruct SustainCERT to correct any incorrect or inaccurate information held in the Registry and inform SustainCERT in writing of any changes to that information; and

(m) SustainCERT may, in its sole discretion, with or without cause or prior notice to the Account Holder:

(i) temporarily or permanently cease to operate the Registry;
(ii) temporarily or permanently cease to make Impact Unit issuances or other services described hereunder available; or
(iii) terminate or suspend the Account Holder's access to the SustainCERT Registry in accordance with clause 13 of these Terms of Use.

7.3 SustainCERT representations and warranties

On the Commencement Date and throughout the term of these Terms of Use, SustainCERT represents and warrants to Account Holder that:

(a) to SustainCERT's knowledge:

(i) the Registry, the procedures set out by SustainCERT including any SustainCERT Requirements and these Terms of Use comply in all material respects with any applicable laws, regulations and orders to which they may be subject; and
(ii) SustainCERT possesses any applicable licenses, authorisations, permits, consents and approvals of any Government Authority that may be required to be possessed by SustainCERT in connection with the operation of the Registry; and
(iii) use of the Registry by Account Holder in accordance with the provisions of these Terms of Use does not and will not infringe the intellectual property rights of any third party in the Territory; and

(b) it shall use reasonable endeavours to perform the obligations contained in these Terms of Use in accordance with Good Industry Practice.

7.4 Disclaimer of warranties

(a) The data contained in the Registry has been gathered by SustainCERT from sources believed by SustainCERT to be reliable. SustainCERT does not warrant that the information in the Registry is correct, complete, current, or accurate, or that the software programs used in the Registry will be error or bug-free, secure or free from service disruption.

(b) The Account Holder acknowledges, understands and accepts that the Registry is provided on an "as is" basis at the Account Holder's sole risk. SustainCERT makes no representations, or warranties, express or implied, with respect to these Terms of Use, the procedures set out by SustainCERT or compliance with the relevant SustainCERT Requirements, or the adequacy or performance of the Registry. Without limiting the foregoing, SustainCERT does not warrant the accuracy, timeliness, completeness, reliability or availability of the Registry or the information or results obtained from use of the Registry.

(c) SustainCERT hereby disclaims any such warranties, including but not limited to warranties of non-infringement or fitness for a particular purpose, and any implied warranties arising from any course of dealing, usage, or trade practice.

(d) The Account Holder acknowledges that service or maintenance disruptions may occur from time to time. SustainCERT further disclaims liability for:

(i) errors, omissions or other inaccuracies in any party of the Registry, or the reports, Impact Units or other information compiled or produced by or from or input into the Registry;
(ii) any delays, omissions or interruptions therein, and
(iii) for the acts or omissions of any broker or Super User authorised within the Registry by the Account Holder to utilise the Registry services on behalf of the Account Holder.

(e) SustainCERT assumes no responsibility for, and neither shall be liable for, any damages to, or viruses that may infect, the Account Holder's equipment or other property on its Registry Account, Omnibus Account and / or Business Sub-Account (as applicable), or the Account Holder's access to and use of the Registry.

(f) The Account Holder is solely responsible for the protection, security, and management of its computer network and of all usage thereof. SustainCERT will not compensate the Account Holder for damages incurred due to violations of the security of the Account Holder's computer network, nor shall the Account Holder make deductions or set offs of any kind from or against fees due to SustainCERT in respect of any such damages.

8 Confidentiality

8.1 Protection of Confidential Information

(a) SustainCERT agrees to use and maintain Confidential Information provided by Account Holder in accordance with the procedures set out by SustainCERT and the relevant SustainCERT Requirements, except as may be otherwise required or permitted under clause 8.3(a)(i).

(b) The Account Holder acknowledges that SustainCERT will use Confidential Information for the purpose of maintaining the Registry and consents to and authorises data sharing between SustainCERT and any necessary third party for the purposes of maintaining the Registry.

(c) SustainCERT and Account Holder shall each use commercially reasonable efforts to protect any Confidential Information of the other party from unauthorised disclosure or use, using at least the same level of care as it uses to protect its own Confidential Information.

8.2 Return of Confidential Information

Subject to any applicable regulatory or legal requirements, upon termination or expiration of the Terms of Use, a party must immediately return or destroy to the other party all Confidential Information of the other party in their possession or control at the other party’s request.

8.3 Permitted disclosure

(a) SustainCERT and the Account Holder each agree not to use or disclose Confidential Information of the other party except to the extent that such use or disclosure is:

(i) reasonably necessary to perform under the procedures set out by SustainCERT including the SustainCERT Requirements, or these Terms of Use; or
(ii) authorised in writing by the other party.

(b) Neither SustainCERT nor the Account Holder shall be deemed to have breached these Terms of Use on account of the use or disclosure of any Confidential Information of the other party if:

(i) such use or disclosure is reasonably necessary to comply with any applicable law, regulation, order or other legally enforceable requirement, or any request by any Government Authority having jurisdiction over SustainCERT; and
(ii) the disclosure is required in order to enable the issuance, transfer or retirement of Impact Units;
(iii) the party using or disclosing such Confidential Information provides to the other party, to the extent reasonably practicable and legally permissible, as soon as reasonably practicable and in advance of such use or disclosure, written notice of such use or disclosure so that the other party may seek a protective order or other appropriate remedy (at its own cost).

(c) If an Account Holder cancels or retires one or more Impact Units, notwithstanding anything to the contrary in these Terms of Use, the following information related to such cancellation or retirement may be subject to public disclosure by or at the direction of SustainCERT, in such manner (including, without limitation, by inclusion in one or more reports posted on the Website) and at such times as SustainCERT may determine in its sole discretion:

(i) the number of cancelled or retired Impact Units;
(ii) the date of such cancellation or retirement;
(iii) the name, type and identification number of the Intervention or Program of Intervention associated with the cancelled or retired Impact Units; and
(iv) if applicable, and voluntarily disclosed by the Account Holder to SustainCERT, a statement to the effect that the cancellation or retirement of the Impact Unit was on behalf of another person or organisation and the reason for the cancellation or retirement of the Impact Unit (where voluntarily provided).

8.4 Data on the Registry

If Account Holder obtains access to data in the SustainCERT Registry that:

(a) is not data provided or owned by Account Holder;

(b) is not part of a publicly available Registry report; and

then, regardless of whether such data is otherwise considered Confidential Information, the Account Holder shall:

(d) immediately notify SustainCERT that the Account Holder has obtained such access; and

(e) not disclose, disseminate, copy, or use any such information.

8.5 Remedies

SustainCERT and the Account Holder will each be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, the obligations of the other party under this clause 8.

9 Publicity

9.1 Registry

The Account Holder acknowledges that subject to clause 9.3, certain documentation provided for the purposes of listing the Intervention or Program of Interventions (as applicable) in the Registry under clause 6.1 may be made publicly available upon successful listing in the Registry, including but not limited to:

(a) design document for the Intervention or Program of Interventions required by the SustainCERT Requirements; and

(b) any statement of the outcomes of validation and / or verification of the Intervention or Program of Interventions required by the SustainCERT Requirements.

9.2 Website

Subject to clause 9.3, the Account Holder acknowledges that where an Intervention or Program of Interventions is listed in the name of the Account Holder under clause 6.1, or Impact Units are issued to that Account Holder in accordance with 6.2, SustainCERT may publish the name of the Account Holder and details of the Intervention or Program of Interventions or Impact Units (as applicable) on its website and in its marketing materials.

9.3 Commercially sensitive information

The Account Holder may specify particular information in documentation relating to an Intervention or Program of Interventions to be commercially sensitive information in accordance with the SustainCERT Requirements, and these will not be made publicly available by SustainCERT (whether on the Registry, or on SustainCERT’s website or marketing materials).

10 Privacy

(a) Please see our Privacy Policy and Terms and Conditions for Services for how we collect, use and store Personal Information and data. By agreeing to these Terms of Use, Account Holder gives its consent to the way in which SustainCERT handles personal information under those policies.

11 Intellectual Property

11.1 Intellectual property rights

(a) The Account Holder acknowledges and agrees that the rights and licenses provided to Account Holder under these Terms of Use and the procedures set out by SustainCERT including any supplementary agreements or user guidelines are solely for the benefit of the Account Holder and are to be exercised only in connection with the Account Holder's use of the Registry.

(b) The Account Holder may not transfer, assign or sublicense its rights, licenses or Registry Account(s), Omnibus Account and / or and Business Sub-Accounts, or any portion thereof, to any third party without the prior written consent of SustainCERT, which consent SustainCERT may withhold in its sole discretion.

(c) Other than with SustainCERT 's written permission, reproduction of part or all of the contents in any form of the Registry is prohibited other than for individual use by the Account Holder only and may not be copied and shared with a third party. The permission to copy by an individual does not allow for incorporation of material or any part of it in any work or publication, whether in hard copy, electronic, or any other form.

(d) Unless otherwise noted, all materials in the Registry are protected as the Intellectual Property Rights owned by SustainCERT or by other parties that have licensed their material to SustainCERT.

11.2 Data

The Account Holder hereby grants to SustainCERT a perpetual, royalty-free license to: i) use, reproduce, distribute, display and prepare derivative works from Data and Confidential Information provided by the Account Holder; and ii) grant sublicenses to such Data and Confidential Information to subcontractors and other third parties, solely to the extent reasonably necessary to perform any obligations or exercise any rights of SustainCERT under these Terms of Use, and the relevant SustainCERT Requirements, and to fulfil the purposes of the Registry.

(a) The Account Holder acknowledges that SustainCERT is and shall remain the sole owner of all aggregated data embodied in the Registry, and of the selection, arrangement and compilation of such aggregated data.

(b) The Account Holder acknowledges that SustainCERT may publish or authorise the publication of Data other than Confidential Information from the Registry.

(i) any and all Data supplied by the Account Holder, or otherwise accessed by SustainCERT through the Registry, is the Account Holder’s sole and exclusive property and / or that the Account Holder has secured any and all authorisations and rights to the Data, as applicable;
(ii) the Data does not breach any relevant laws, regulations or codes;
(iii) the Data does not infringe the Intellectual Property Rights of any third party;
(iv) it will comply with all applicable laws and regulations in the jurisdiction where the Account Holder accesses content using the Registry; and
(v) to the extent that the Data contains personal information, the Account Holder has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.

(d) The Account Holder acknowledges and agrees that:

(i) any collation, conversion and analysis of the Data, whether by SustainCERT or otherwise, could be subject to human input and machine errors, omissions, delays and losses, including but not limited to loss of Data. SustainCERT is not liable for any such errors, omissions, delays or losses;
(ii) SustainCERT may relocate the Data to another jurisdiction. In each case, SustainCERT will give the Account Holder 15 Business Days' notice and use all reasonable endeavours to minimise the effect of such change on the Account Holder’s access and use of the Registry;
(iii) SustainCERT is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Account Holder, its personnel, its related bodies corporate or any Authorised Users; and
(iv) SustainCERT is not responsible for the integrity or existence of any Data on the Account Holder’s environment, network or any device controlled by the Account Holder or its personnel.

12 Liability and indemnity

12.1 Indemnity

(a) To the fullest extent permitted by law, the Account Holder agrees to indemnify, defend, and hold harmless SustainCERT and its independent contractors, subsidiaries, affiliates, officers, directors, consultants, suppliers, agents and employees (collectively, the Indemnified Party) against and from any losses, liabilities, damages, judgments, awards, fines, penalties, actions, claims, costs, and expenses, including, without limitation, any amounts paid in settlement or compromise and any fees and costs of counsel and experts, (collectively, Losses) incurred, directly or indirectly, in connection with or by reason of, or in any way relating to, arising out of or attributable to:

(i) the Account Holder's use of the Registry or the Website and/or any violation of any law, rule, or regulation arising from such use;
(ii) any breach of any representation or warranty set forth in, and any failure to perform any covenant, obligation or agreement under, these Terms of Use by Account Holder, or any violation by Account Holder of these Terms of Use or the procedures set out by SustainCERT;
(iii) any claim, action or proceeding asserted or brought by a third party arising out of any actual or alleged act or omission of the Account Holder;
(iv) any failure of any Impact Unit issued to or transferred by the Account Holder on the Registry to conform with the SustainCERT Requirements;
(v) any information supplied by or through Account Holder, any transaction or arrangement entered into by Account Holder with any third party, or any misuse or improper disclosure of any information by Account Holder;
(vi) any dispute between Account Holder and any third party with respect to any Impact Units or Related Units (including, without limitation, any such dispute arising from or relating to any transaction between Account Holder and a third party with respect to the purchase, sale, or exchange of Impact Units or Related Units, or to the aggregation, verification or certification of emissions data or any other data underpinning claimed Environmental Benefits);
(vii) any loss suffered by or other harm to any person or property (including, without limitation, any personal injuries or death of any third person) in any way relating to or caused in whole or in part by the posting, purchase, sale or exchange of Impact Units or Related Units by the Account Holder or any other activity of Account Holder conducted using the Registry;
(viii) any action (including, without limitation, any message, request to transfer, buy, offer to sell, bid to buy, and request for new suppliers) taken by any third party through the Account Holder's Registry Account, Omnibus Account and / or Business Sub-Accounts, or using the Account Holder's password on the Registry, whether or not such third person gains access to such Registry Account, Omnibus Account and / or Business Sub-Accounts, as the result of any negligence or lack of vigilance by the Account Holder; and
(ix) the enforcement of the release, indemnity and other obligations referred to in this clause 12.1(a), in any case, except to the extent that such Losses result from the Indemnified Party's fraudulent conduct, gross negligence or wilful misconduct.

(b) For the avoidance of doubt, the Losses referred to in clause 12.1(a) include (but are not limited to) any Losses arising out of or related to:

(i) any inaccuracy, error, or delay in or omission of any data, information, or service, or the transmission or delivery of any data, information, or service;
(ii) any interruption of any such data, information, or service (whether or not caused by such Indemnified Party); or
(iii) any financial, business, commercial or other judgment, decision, act or omission based upon or related to the information or the Registry.

12.2 Liability

SustainCERT's sole liability relating in any way, whether directly or indirectly, to the Registry or these Terms of Use (including without limitation the performance or non performance by SustainCERT of its obligations), whether caused by the negligence of SustainCERT or otherwise, and regardless of whether any claim for damages is based on contract, tort, strict liability or otherwise, is limited to an aggregate amount equal to the greater of the fees paid by the Account Holder to SustainCERT during the one-year period immediately preceding the earliest date on which any such claim(s) are made by the Account Holder, and USD 100.

12.3 Limitation of liability

(a) The Account Holder assumes full responsibility and risk of loss resulting from its use of the Registry and will have no claim whatsoever against SustainCERT other than where liabilities are determined by final adjudication to have been caused by SustainCERT's or its independent contractors' fraud, gross negligence or wilful misconduct.

(b) In no event shall SustainCERT be liable for any:

(i) consequential, incidental, special, exemplary, punitive or indirect damages;
(ii) consequential, incidental, special, exemplary, punitive or indirect damages;
(iii) any loss of use, loss of data, loss of business, personal injuries, or property damages, sustained by the Account Holder or any third parties.

(c) Even if SustainCERT has been advised by the Account Holder or any third-party of the possibility of such damages, the Account Holder hereby releases and discharges SustainCERT, any wholly owned subsidiaries of SustainCERT, any other corporate affiliates of SustainCERT, their successors and assignees, agents, directors, officers, employees, contractors, service providers and vendors from any and all liability with respect to any damage or injuries incurred by the Account Holder in relation to the Registry.

12.4 Exclusion of liability

SustainCERT will not be liable for any loss or damage incurred by the Account Holder in connection with:

(a) any reliance placed by the Account Holder on the completeness, accuracy or existence of any information on the Registry;

(b) any changes which SustainCERT may make to the Registry, or any permanent or temporary cessation in the provision of the Registry (or any features within the Registry);

(c) the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through the Account Holder’s use of the Registry;

(d) the Account Holder’s failure to provide SustainCERT with accurate account information;

(e) the Account Holder’s failure to keep its password or account details secure and confidential;

(f) the acceptability of or for any action or omission of any counterparty to or other third party involved in any transaction or arrangement that relates to Impact Units or that is entered into or consummated with the use of the Registry (including without limitation any buyer, exchange provider and any verification or certification provider);

(g) for the enforceability of or for any loss, expense or other liability arising from any such transaction or arrangement; or

(h) any other relationship or transaction between the Account Holder and any third party.

12.5 Jurisdictional limitations and exclusions

Some jurisdictions do not allow the disclaimer of warranties or the exclusion or limitation of certain damages, so the limitations and exclusions contained in clauses 12.2, 12.3 and / or 12.4 may not apply to the Account Holder, in which case SustainCERT’s liability will be limited or excluded to the maximum extent permitted by law.

13 Termination

13.1 Termination for convenience

(a) SustainCERT may terminate these Terms of Use by providing the Account Holder with 30 days’ written notice.

(b) The Account Holder may terminate these Terms of Use and its use of the Registry by providing SustainCERT 30 Business Days written notice.

13.2 Termination by SustainCERT for cause

(a) SustainCERT may terminate this Agreement immediately by giving written notice to the Account Holder where:

(i) an insolvency event occurs in relation to the Account Holder; or
(ii) the Account Holder commits a material breach of the Terms of Use that is a material breach or is a breach that is not capable of remedy or not remedied within 30 days of a notice being issued by SustainCERT.

(b) The notice referred to in clause 13.2(a) shall include reasons for SustainCERT's exercise of its right to terminate these Terms of Use and, subject to clause 13.3(a), the date upon which the Terms of Use will terminate.

13.3 Effect of termination

Upon notification from SustainCERT that these Terms of Use are to be terminated:

(a) Except in the case of a material breach of these Terms of Use by Account Holder, the Account Holder may transfer, cancel or retire Impact Units held in the Account Holder's Registry Account, Omnibus Account and / or Business Sub-Accounts (as applicable) to another Account Holder's Registry Account as instructed by Account Holder. If no such transfer is affected before termination, the provisions of clause 13.4 shall apply.

(b) In the case of a material breach of these Terms of Use by Account Holder, the provisions of clause 13.4 shall apply.

13.4 Administration Account

(a) Subject to clause 13.3, SustainCERT shall transfer any Impact Units remaining in the Account Holder's Registry Account, Omnibus Account and / or Business Sub-Accounts (as applicable), to an Administration Account.

(b) SustainCERT shall record the Impact Units as belonging to:

(i) the Account Holder; or
(ii) where applicable, the relevant third party identified in any Approved Sub-Register as having Legal or Beneficial Ownership Rights, (each an Administration Owner).

(c) SustainCERT shall not transfer, cancel or retire such Impact Units without the written consent of the Administration Owner, except in such circumstances where SustainCERT is exercising its rights with respect to Disputed Impact Units under clause 6.8(g)(iii).

14 General

14.1 Modifying the Terms of Use

(a) SustainCERT may modify these Terms of Use, the Operative Documents or the SustainCERT Requirements from time to time in their sole discretion. Any such modification takes effect at the time specified by SustainCERT and without the Account Holder’s prior consent.

(b) Where a modification to these Terms of Use, the Operative Documents or the SustainCERT Requirements is considered by SustainCERT to be material, SustainCERT will, as soon as reasonably practicable, notify the Account Holder of such modifications by placing a notice to this effect on the Registry, the Website or by email to the Account Holder’s email address.

(c) Such notice shall be deemed to have been given upon the expiration of 48 hours after posting it on the Registry, or the Website, or 24 hours after sending (if by e-mail).

(d) The Account Holder’s continued use and access of the Registry indicates the acceptance by the Account Holder of the modified Terms of Use, Operative Documents or SustainCERT Requirements. The Account Holder will ensure compliance with the modified Terms of Use by all Authorised Users and representatives.

14.2 Assignment

(a) SustainCERT may, without the Account Holder’s approval, assign, novate or transfer any of its rights or obligations arising out of or under the Terms of Use (or any part of the Terms of Use) to any entity with sufficient financial capacity (whether directly or indirectly including by way of intra-group arrangements) to perform the obligations under the Terms of Use.

(b) The Account Holder may only assign, novate or transfer any of its rights or obligations arising out of or under the Terms of Use (or any part of the Terns of Use) with SustainCERT’s prior written approval, which consent SustainCERT may withhold in its sole discretion.

14.3 No third party beneficiaries

Except as provided elsewhere in these Terms of Use, these Terms of Use confer no rights whatsoever upon any person other than the parties and shall not impose, or be interpreted as imposing, any standard of care, duty, or liability upon any person other than a party.

14.4 Subcontractors

SustainCERT may use subcontractors to perform the obligations of the Terms of Use and for the other purposes set out in the Terms of Use. SustainCERT remain responsible for the performance of its obligations as set out in the Terms of Use.

14.5 Audit

(a) SustainCERT has the right, at its sole expense, upon reasonable notice and during normal working hours, to examine, audit, and obtain copies of the records of Account Holder to the extent reasonably necessary to verify:

(i) the accuracy of any representation, warranty or attestation made by Account Holder to SustainCERT; and
(ii) the Account Holder's performance during the prior 12 month period of its obligations under the procedures set out by SustainCERT including any user guidelines or, as applicable, the relevant SustainCERT Requirements, and these Terms of Use.

(b) This right to examine, audit, and obtain copies shall not be available with respect to any information that is not directly relevant to the subject matter of the procedures set out by SustainCERT including any user guidelines or, as applicable, the relevant SustainCERT Requirements, or these Terms of Use.

14.6 Notices

(a) All notices and other communications under these Terms of Use must be in writing and will be duly given hereunder:

(i) upon delivery, if personally delivered, or if delivered by email or facsimile, or delivered by overnight courier with confirmation of delivery; or
(ii) on the fourth business day after the postmark date, if mailed by certified or registered mail with postage prepaid.

(b) Street and email addresses and facsimile numbers of each party are as indicated below or as subsequently modified by written notice to the other party.

SustainCERT SA
33, Boulevard Prince Henri, L-1724, Luxembourg
Email: contracts@sustain-cert.com

(d) If to the Account Holder:

To the address provided at the time of registration, as updated by the Account Holder from time to time.

14.7 Relationship

(a) SustainCERT is not the Account Holder's agent or advisor; and

(b) these Terms of Use create no relationship of partnership, joint venture, employment, franchise, or agency between SustainCERT and the Account Holder.

14.8 Force Majeure

(a) A party will not be liable for any failure or delay in the performance of its obligations under these Terms of Use if that failure or delay is due to a Force Majeure.

(b) Any party who is, by reason of Force Majeure, unable to perform any obligation or condition under these Terms of Use must notify the other parties in writing as soon as possible specifying:

(i) the cause and extent of such non-performance;
(ii) the date of commencement of non-performance; and
(iii) the means proposed to be adopted to remedy or abate the Force Majeure.

(c) A party who is, by reason of Force Majeure, unable to perform any obligation or condition under these Terms of Use must:

(i) use all commercially reasonable endeavours to remedy the Force Majeure as quickly as possible;
(ii) resume performance as quickly as possible after cessation of the Force Majeure; and
(iii) notify the other parties in writing when the Force Majeure has terminated.

14.9 Severability

If any provision in or any part of the Terms of Use shall be found to be illegal or unenforceable under any enactment or rule of law, then that provision or part shall to that extent be deemed not to form part of the Terms of Use and the remaining provisions shall continue in full force and effect.

14.10 Waiver

(a) No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver.

(b) A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

14.11 Entire agreement

(a) These Terms of Use constitute the entire agreement between or among the parties with respect to its subject matter and (to the extent permissible by law) supersedes all prior representations, writings, negotiations or understandings with respect to that subject matter.

(b) All terms, conditions and warranties not stated expressly in these Terms of Use, and which would in the absence of this provision be implied into these Terms of Use by statute, common law, equity, trade, custom or usage or otherwise, are excluded to the maximum extent permitted by law.

14.12 Survival

The following provisions survive expiry or termination: 3 (Fees and charges), 6 (Interventions and Impact Units), 7 (Representations and warranties), 8 (Confidentiality), 10 (Privacy), 11 (Intellectual Property), 12 (Liability and indemnity), 12 (Liability), and 14 (General).

14.13 Governing Law

This agreement and any dispute arising from this agreement, whether contractual or non-contractual, will be exclusively governed by the laws of Luxembourg. Each party submits to the non-exclusive jurisdiction of the courts sitting in Luxembourg.