1 APPLICATION OF THESE CONDITIONS
1.1 These Conditions govern the terms on which a Company may access and use the Pledge Portal and participate in the POW Pledge.
1.2 Please note:
(a) PARTS A AND C OF THESE CONDITIONS APPLY TO ANY COMPANY THAT ACCESSES THE PLEDGE PORTAL. These Parts apply from the date on which the Company is granted access to the Pledge Portal by submitting the Portal Access Information in accordance with Clause 4.1 (the “Portal Access Date”).
(b) PART B OF THESE CONDITIONS ALSO APPLIES TO ANY COMPANY THAT PARTICIPATES IN THE POW PLEDGE. This Part applies from the date on which the Company pays the Pledge Participation Fee in accordance with Clause 8 (the “Pledge Commencement Date”).
1.3 These Conditions satisfy the prescribed requirements of the Charitable Institutions (Fund Raising) Regulations 1994, to which all parties to the POW Pledge are subject.
2.1 Capitalised terms used in these Conditions shall have the following meanings.
- “Brand Guidelines” means POW UK’s brand guidelines prescribing the permitted manner in which the POW Pledge Mark may be used and including any amendments or additions notified in writing by POW UK to the Company from time to time.
- “Company Marks” means any trade mark(s) belonging to the Company, which the Company makes available to POW UK from time to time to enable POW UK to provide the Pledge Benefits.
- “Conditions” means these Terms and Conditions of Participation.
- “Contract” has the meaning given to it in Clause 8.
- “Insolvency Event” means, in relation to a Party, where:
(a) a Party takes any step or action in connection with its entering administration, provisional liquidation, bankruptcy, or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(b) a Party’s financial position deteriorates to such an extent that in the terminating Party’s opinion the other Party’s capability to adequately fulfil its obligations under these Conditions has been placed in jeopardy.
“Invoice” has the meaning given to it in Clause 8.2;
“Party” means each of POW UK and the Company, and together shall be the “Parties”.
“Payment Terms” means valid payment of the Pledge Participation Fee in accordance with the procedures set out on the Pledge Portal (including as updated, amended or varied from time to time).
“Pledge Benefits” means the bundle of benefits that POW UK grants to the Company based on the Pledge Commitments that the Company makes, the details of which POW UK provides to the Company prior to entering into the Contract. The benefits includes the licence of the POW Pledge Mark granted in Clause 9.1.
“Pledge Commencement Date” has the meaning given to it in Clause 1 (Application of these Conditions).
“Pledge Commitments” means the environmental commitments, targets and actions submitted by the Company in accordance the Pledge Portal.
“Pledge Participation Fee” means the annual sum payable by the Company in accordance with Clause 8 (Pledge Participation Fee).
“Pledge Portal” means the online portal which is provided by, or on behalf of, POW UK through which the user can access information, resources and support to assist it to achieve the goals of its pledge.
“Pledge Term” has the meaning given to it in Clause 3.2.
“Portal Access Date” has the meaning given to it in Clause 1 (Application of these Conditions).
“Portal Access Information” means the information submitted by the Company in order to create its online account and gain access to the Pledge Portal.
“POW Pledge” means the programme through which POW UK works with its corporate partners to help them to reduce their own carbon footprint and become more environmentally friendly, and to assist such partners in making progress towards these goals.
“POW Pledge Mark” means the Protect Our Winters pledge logo that is made available to the Company through the Pledge Portal and any other mark or logo notified in writing by POW UK to the Company from time to time.
“POW UK” means Protect Our Winters UK (Registered Charity No. SC047595), of 13/3 Clarendon Crescent, Edinburgh, EH4 1PU.
“Renewal Fee” means the sum payable by the Company in respect of any additional Pledge Term in accordance with the Payment Terms.
3.1 Parts A and C of these Conditions shall apply from the Portal Access Date and shall remain in force for as long as POW UK continues to operate the POW Pledge and to make the Pledge Portal available to the public.
3.2 Part B of these Conditions shall apply from the Pledge Commencement Date and, subject to any Pledge Renewal in accordance with Clause 13 (Pledge Renewal) and/or any termination in accordance with Clauses 8.4 and 14 (Termination), shall remain in force for a period of one (1) year beginning on the Pledge Commencement Date (the “Pledge Term“).
PART A – PLEDGE PORTAL ACCESS
4 ACCESS TO PLEDGE PORTAL
4.1 The Company shall submit the Portal Access Information in accordance with the procedures on the Pledge Portal. By submitting the Portal Access Information, the Company accepts and agrees to comply with Parts A and C of these Conditions.
4.2 From the Portal Access Date, POW UK grants to the Company a non-exclusive, non-transferable, non-sub-licensable right to permit authorised users to access the Pledge Portal. This right is subject at all times to these Conditions and any other terms and conditions of access or use notified to the Company by POW UK from time to time.
4.3 The Company is responsible for ensuring that all persons who access the Pledge Portal through its internet connection (or otherwise on behalf of the Company) are aware of these Conditions, and that they comply with them.
4.4 POW UK makes no guarantee that the Pledge Portal, or any content on it, will always be available or uninterrupted. POW UK may suspend or withdraw or restrict the availability of all or any part of the Pledge portal for business and operational reasons. POW UK will try to give a Company reasonable notice of any suspension or withdrawal.
5 USE OF MATERIALS ON THE PLEDGE PORTAL
5.1 POW UK is the owner or the licensee of all intellectual property rights in the Pledge Portal, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
5.2 The Company may print off one copy, and may download extracts, of any page(s) from the Pledge Portal for its internal use and you may draw the attention of others within your organisation to content posted on the Pledge Portal.
5.3 The Company must not modify the paper or digital copies of any materials it has printed off or downloaded in any way, and the Company must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
5.4 POW UK’s status (and that of any identified contributors) as the authors of content on our site must always be acknowledged.
5.5 Other than in accordance with these Conditions, the Company must not use any part of the content on the Pledge Portal for commercial purposes without obtaining a licence to do so from POW UK or our licensors.
6 RELIANCE ON MATERIALS ON THE PLEDGE PORTAL
6.1 The Parties acknowledge that the content which the Company may access via the Pledge Portal is provided for general information only. It is not intended to amount to specific advice on which the Company should rely. The Company must obtain professional or specialist advice before taking, or refraining from taking, any action on the basis of the content accessed via the Pledge Portal, and POW UK shall under no circumstances be liable to the Company for any such action or inaction.
6.2 Although POW UK makes reasonable efforts to update the information on the Pledge Portal, it makes no representations, warranties or guarantees, whether express or implied, that the content on the Pledge Portal is accurate, complete or up to date.
6.3 Where the Pledge Portal contains links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by POW UK of those linked websites or information you may obtain from them. POW UK has no control over the contents of those sites or resources.
7 VIRUS PROTECTION
7.1 POW UK does not guarantee that the Pledge Portal will be secure or free from bugs or viruses. The Company is responsible for configuring its information technology, computer programmes and platform to access the Pledge Portal. The Company should use its own virus protection software.
7.2 The Company must not misuse the Pledge Portal by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. The Company must not attempt to gain unauthorised access to the Pledge Portal, the server on which the Pledge Portal is stored or any server, computer or database connected to the Pledge Portal. The Company must not attack the Pledge Portal via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, the Company would commit a criminal offence under the Computer Misuse Act 1990. POW UK will report any such breach to the relevant law enforcement authorities and POW UK will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, the Company’s right to use the Pledge Portal will cease immediately.
PART B – PLEDGE PARTICIPATION
8 PLEDGE PARTICIPATION FEE
8.1 The Company shall pay the Pledge Participation Fee in accordance with the Payment Terms. By paying the Pledge Participation Fee, the Company accepts and agrees to comply with Part B of these Conditions (in addition to Parts A and C) and thereby enters into a contract with POW UK incorporating these Conditions and any other terms notified by POW UK to the Company (the “Contract”).
8.2 Where permitted by the Payment Terms, the Company may request that POW UK invoice the Company for the Pledge Participation Fee (an “Invoice”) and POW UK shall provide an Invoice to the Company within a reasonable time following such request.
8.3 The Company shall pay any Invoice:
(a) within 30 days of receipt of the Invoice; and
(b) in full and in cleared funds to the bank account nominated in writing by POW UK,
and any failure by the Company to pay an Invoice in accordance with this Clause 8.3 shall be a ‘material breach’ for the purposes of Clause 14.2(a).
8.4 Notwithstanding the above, and without affecting any other right or remedy available to it, at any time within the first 45 days of the Contract, POW UK may terminate the Contract immediately on giving notice to the Company. If POW UK exercises its right to terminate, it shall return the Pledge Participation Fee to the Company.
9 GRANT OF RIGHTS AND RESERVATIONS
9.1 In consideration of payment of the Pledge Participation Fee, POW UK grants to the Company a non-exclusive, non-transferable, non-sub-licensable licence to use the POW Pledge Mark during the Pledge Term and to the extent necessary to receive, exercise and enjoy the Pledge Benefits.
9.3 Any goodwill derived from the use by the Company of the POW Pledge Mark shall accrue to POW UK. POW UK may, at any time, call for a document confirming the assignment of that goodwill and the Company shall immediately execute it.
9.4 All rights not expressly granted to the Company under the Contract are reserved to POW UK.
10 PLEDGE BENEFITS AND PROMOTIONAL SUPPORT
10.1 On entering into the Contract:
(a) the Company shall submit its Pledge Commitments via the Pledge Portal;
(b) on the basis of the Pledge Commitments submitted by the Company, POW UK shall inform the Company of the Pledge Benefits that it shall be entitled to receive, exercise and enjoy. This shall include:
(i) a right to use the POW Pledge Mark in the manner and form directed by POW UK. For example, this may (but is not guaranteed to) include the right to incorporate the POW Pledge Mark into the Company’s email signature; and
(ii) the provision of promotional support by POW UK in the manner and form directed by POW UK. For example, this may (but is not guaranteed to) include POW UK publishing the Company’s name on its website.
10.2 The Parties acknowledge that, during the Pledge Term, the Company may increase its level of Pledge Commitment, but shall not be entitled to decrease it.
10.3 POW UK shall use its reasonable endeavours to deliver or ensure the delivery of each of the Pledge Benefits to the Company.
10.4 The Company grants to POW UK a non-exclusive, non-transferrable, worldwide and royalty-free licence to POW UK to use the Company Marks to the extent necessary to deliver the Pledge Benefits.
11 OBLIGATIONS OF THE PARTIES
11.1 The Company undertakes to POW UK:
(a) to comply with all applicable laws relevant to the exercise of its rights and the performance of its obligations under the Contract;
(b) submit samples of all advertising and promotional materials (whether they are to appear in physical or digital form) to which the POW Pledge Mark are applied pursuant to the Contract to POW UK for its approval prior to being used;
(c) upon POW UK’s request (and at the Company’s cost), to remove any materials bearing the POW Pledge Mark from circulation or publication where the circulation or publication of such materials amounts to an improper or unauthorised use of the POW Pledge Mark. Failure to do so will constitute a material breach of the Contract;
(d) not do or fail to do any act or thing whereby the validity, enforceability or POW UK’s ownership of the trade mark registrations for the POW Pledge Mark, or the reputation or goodwill associated with the POW Pledge Mark anywhere in the world, is likely to be prejudiced;
(e) not to reproduce or use (or authorise the reproduction or use of) the POW Pledge Mark in any manner whatsoever other than as expressly authorised by these Conditions; and
(f) not to use or apply to register the POW Pledge Mark, or any trade name, service mark, service name, design or logo(s) that are identical or confusingly similar, in POW UK’s sole discretion, to the POW Pledge Mark, or any trade name, service mark, service name, design, or logo(s) of POW UK.
12 PROTECTION OF THE MARK
12.1 The Company shall promptly inform POW UK of:
(a) any suspected unauthorised use of the POW Pledge Mark (or any confusingly similar mark) of which it becomes aware;
(b) any actual or threatened claim that the POW Pledge Mark is invalid;
(c) any actual or threatened opposition to the POW Pledge Mark;
(d) any claim made or threatened that use the POW Pledge Mark (or any resource made available to the Company through the Pledge Portal) infringes the rights of any third party;
(e) any person applies for, or is granted, a registered trade mark by reason of which that person may be, or has been, granted rights which conflict with any of the rights granted to the Company under these Conditions; or
(f) any of other form of attack, charge, claim or misuse to which the POW Pledge Mark may be subject,
and the Company shall provide POW UK with such documents, information and assistance as it can in relation to any of the circumstances notified to POW UK under this Clause 12.1. 12.2 POW UK gives no warranty and makes no representation in or pursuant to these Conditions that the use of the POW Pledge Mark (or any resource made available to the Company through the Pledge Portal) does not or will not infringe the rights of others.
13 PLEDGE RENEWAL
Subject to payment by the Company of the Renewal Fee, the Parties may at any time prior to expiry of the Pledge Term agree to extend the Pledge Term for an additional period of twelve (12) months commencing on the day on which the Pledge Term would have otherwise expired. For the avoidance of doubt, this Part B shall continue to apply during any extended Pledge Term.
PART C – GENERAL TERMS
14.1 In the event that POW UK, at its sole discretion, decides to cease to operate the POW Pledge, POW UK shall, where it is practical to do so, give reasonable prior notice in writing to the Company of the date on which the POW Pledge shall cease and the Contract shall automatically expire on such cessation date.
14.2 Without affecting any other right or remedy available to it, either Party may terminate the Contract with immediate effect by giving written notice to the other if:
(a) the other Party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so. For the avoidance of doubt, if the Company exercises any of its rights under the Contract in a manner which, in the reasonable opinion of POW UK, is inconsistent with its charitable aims, such exercise of rights shall be deemed to be a material breach;
(b) the other Party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(c) in its reasonable opinion, the acts, omissions or conduct by or authorised by the other Party, its employees or agents, whether related to the subject matter of the Contract or otherwise, act materially to damage or diminish the name, brand and reputation of the notifying Party or, in its reasonable opinion, conflict with the corporate values of the notifying Party: or
(d) the other Party undergoes an Insolvency Event.
14.3 On termination of the Contract for any reason and subject to any express provisions set out elsewhere in the Contract: (i) all outstanding sums payable by Company shall immediately become due and payable; (ii) all rights and licences granted pursuant to the Contract shall cease; and (iii) each Party shall cease all use of the other Party’s marks save as set out in this Clause.
14.4 Any provision of the Contract that expressly or by implication is stated to come into or continue in force on or after termination or expiry of these Conditions shall remain in full force and effect, including without limitation Clauses 11 and 12.
15.1 Each Party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, nor any of the terms of these Conditions, except as permitted by Clause 15.2.
15.2 Each Party may disclose the other Party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising that Party’s rights or carrying out its obligations under or in connection with these Conditions. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 Neither Party shall use the other’s confidential information for any purpose other than to exercise its rights or perform its obligations under or in connection with these Conditions.
16 LIMITATION OF LIABILITY
16.1 Nothing in the Contract or these Conditions shall limit or exclude a Party’s liability:
(a) for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) for fraud or fraudulent misrepresentation.
16.2 Subject to Clause 16.1, under no circumstances shall a Party be liable to the other for any of the following, whether in contract, tort (including negligence) or otherwise: (i) loss of revenue or anticipated revenue; (ii) loss of savings or anticipated savings; (iii) loss of business opportunity; (iv) loss of profits or anticipated profits; (v) wasted expenditure; or (vi) any indirect or consequential losses.
16.3 Subject to Clause 16.1, POW UK’s maximum aggregate liability in contract, tort (including negligence) or otherwise, however arising, under or in connection with the Contract or these Conditions shall be limited to the amount of the Pledge Participation Fee (or, where applicable, the Renewal Fee) paid or payable under or pursuant to the Contract.
17.1 Assignment and other dealings. Neither Party shall assign, transfer, mortgage, charge, sub-contract, sub-license, declare a trust over, or deal in any other manner with any or all of its rights under these Conditions without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
17.2 Further Assurance. At its own expense, each Party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute such documents and perform such acts as may be required for the purpose of giving full effect to these Conditions.
17.3 Entire Agreement.
(a) These Conditions constitute the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Conditions.
17.4 Variation. No variation of these Conditions shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
17.5 Third Party Rights. Unless it expressly states otherwise, these Conditions does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions.
17.6 No Partnership or Agency. Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of the other, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
17.7 Force Majeure. Neither Party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
17.8 Notices. Any notice or other communication given to a Party under or in connection with these Conditions shall be in writing, addressed to that Party at its registered office or such other address as that Party may have specified to the other Party in writing in accordance with this Clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or by commercial courier or email.
17.9 Governing Law. These Conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.10 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Conditions or its subject matter or formation.