Last updated on June 27, 2022
Unless the context requires otherwise the following terms have the following meanings:
The agreement between Blue Marble and customer for the sale and purchase of the services comprising the proposal (including any scope of work), the project confirmation sheet and these general terms and conditions.
Blue Marble Environmental Partnerships Ltd at Meadowbank, Longmeadow Road, Lympstone, England, EX8 5LF, United Kingdom.
Blue Marble Graphics System
The manual for customers on how to use graphics, logos and other marks or trade marks licenced by blue marble under a trade mark licence and made available to the customer by blue marble.
The entity or organisation countersigning or on whose behalf is countersigned under due authority, including electronically, the project confirmation sheet.
Blue Marble’s proposal detailing the Services to be provided to the Customer
Project Confirmation Sheet
Blue Marble’s project confirmation sheet, countersigned by the Customer.
The price for the services as stated in a proposal.
The services from time to time provided to the customer as stated in the proposal.
As defined in the Proposal
A person or entity not being: (i) Blue Marble, (ii) the Customer, or (iii) otherwise a party to this Agreement
The marks, symbols, badges, labels or other sights owned by and/or registered in the name of blue marble the right to use of which the customer becomes entitled to in accordance with this agreement and in particular, in accordance with clause 9 of these general terms and conditions
2.1 Unless expressly stated otherwise, in the interpretation of the Agreement:
2.1.1 Singular includes plural and vice versa, words importing gender include every gender, as the context requires, persons include natural persons and corporate persons, their successors and assigns.
2.1.2 References to any legislative or similar instrument include any amendment or re-enactment to or in substitution for it.
2.1.3 The proposal forms part of the agreement provided that in the event of any inconsistency between the proposal and these general terms and conditions, the proposal prevails.
2.1.4 References in this agreement to documents ‘in writing’ or being ‘written’ includes both delivery of hard-copy form and electronic communication of the document as a signed portable document format (PDF) file, unless blue marble has notified the customer, or the context requires, otherwise.
2.1.5 Headings used herein are for convenience of reference only and are not to affect the construction or meaning or to be taken into account in interpreting the agreement.
3. Basis of agreement
3.1 Customer agrees to deal with Blue Marble on the terms of this agreement, subject to any proposal and to the exclusion of all other terms, conditions, warranties or representations and any terms or conditions which customer purports to apply under any purchase order, confirmation of order, acceptance of quotation, specification or any other document or implied by statute, trade customer or course of dealing.
3.2 No terms or conditions endorsed on, delivered with or contained in customer’s purchase order, confirmation of order, specification or other document shall form part of the agreement.
3.3 No variation to this agreement shall be binding unless made in writing specifying both which clause is to be varies and full details of such variation and signed on behalf of each of customer and blue marble.
3.4 Blue Marble’s employees or agents are not authorised to make any representations concerning the services unless confirmed by blue marble in writing. In entering into the agreement customer acknowledges that it does not rely on any such representations which are not so confirmed. Customer irrevocably and unconditionally waives any right it may have to claim damages for and/or to rescind the agreement as a result of any misrepresentation whether or not contained in the agreement unless such misrepresentation was made fraudulently.
3.5 Any advice or recommendation given by blue marble or its employees or agents to customer or its employees or agents as to the application or use of the services which is not confirmed in writing by blue marble is followed or acted upon entirely at customer’s own risk and accordingly blue marble shall not be liable for any such advice or recommendation which is not so confirmed.
3.6 Any typographical, clerical or other error or omission in any sales literature, proposal, invoice or other document or information issued by Blue Marble shall be subject to correction without any liability on the part of Blue Marble.
3.7 Unless stated otherwise in a proposal, this agreement shall come into effect on the date customer signs the project confirmation sheet and shall continue for the duration of the term (as defined in the proposal). Each term shall automatically renew for subsequent periods of the same length as the initial term unless either party gives the other written notice of termination at least sixty (60) days prior to expiration of the then-current term.
4. Price and Payment
4.1 Customer shall be invoiced for amounts due following acceptance of the proposal. Customer shall make payment to blue marble in respect of all invoices in full within 15 (fifteen) days of the date of the invoice. Time of payment shall be of the essence. No payment shall be deemed to have been received until blue marble has received cleared funds. Blue Marble shall not provide the services to the customer unless such payment is received. All payments payable to blue marble under this agreement shall become due immediately on its termination despite any other provision.
4.2 Blue Marble may (at its option) provide customer with a facility to pay for Blue Marble membership monthly by instalment as defined in the proposal. Unless otherwise agreed by blue marble, monthly payments shall be made by means of direct debit.
4.3 The price is exclusive of any applicable VAT, which the customer shall be additionally liable to pay blue marble.
4.4 Customer shall make all payments due under the agreement in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless customer has a valid court order requiring an amount equal to such deduction to be paid by Blue Marble to customer.
4.5 If full payment is not received by Blue Marble by the due date then without prejudice to its rights, Blue Marble shall be entitled:
4.5.1 To suspend the further provision of services to customer without incurring any liability; and/or
4.5.2 To terminate the agreement without incurring any liability; and/or
4.5.3 To charge statutory interest (both before and after any judgement) as provided for in the Late Payment of Commercial Debts (interest) act 1998 on the outstanding balance; and/or
4.5.4 To require the immediate return to Blue Marble of all assets, labels or markings provided to the Customer; and/or
4.5.5 To remove the Customer’s right to access and use the Blue Marble Platform; and/or
4.5.6 To change the Customer’s status or remove the Customer’s profile from the Blue Marble Platform.
5. Obligations and responsibilities of the Parties
5.1 Blue Marble will use all commercially reasonable efforts to provide the services in accordance with any agreed timetable or schedule for delivery of the services.
5.2 Customer must cooperate with and make available to blue marble in the manner and format specified by Blue Marble all information, data, documents and other details necessary for blue marble to perform the services.
5.3 In relation to the blue marble platform, Blue Marble does not guarantee uninterrupted availability of the platform. In the event of interruption of platform availability, Blue Marble will take all technically and commercially reasonable steps within its ability to restore platform availability in a timely manner.
6. Warranty and liability
6.1 Customer warrants and undertakes:
6.1.1 To cooperate with Blue Marble, including responding in a timely manner to any reasonable request concerning the information, data, documents and other details, to facilitate timely delivery by Blue Marble of the services;
6.1.2 That all information, data, documents and other details necessary for Blue Marble to perform the services and provided by the customer are to the best of customer’s knowledge true and correct in all material respects;
6.1.3 To bear any and all additional costs due to rework of the services or additional work as a result of deficiency in cooperation by the customer or incorrect, incomplete or otherwise deficient information, data, documents and other details provided by customer including provision of information, data, documents and other details in a format other than the format specified by Blue Marble.
6.2 Blue Marble warrants and undertakes:
6.2.1 To deliver the services in a timely and efficient manner;
6.2.2 That it is not able to independently verify the accuracy, correctness or completeness of any information, data, documents and other details provided to it by customer;
6.2.3 To immediately notify the customer of any change, event or circumstances which may affect or influence the performance of the services under this agreement.
6.3 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the agreement.
6.4 Nothing in this agreement shall operate to limit or exclude Blue Marble’s liability for fraudulent misrepresentation or death or personal injury resulting from negligence of Blue Marble or its employees, or for any matter which it would be illegal for Blue Marble to exclude or limit or attempt to exclude or limit its liability.
6.5 Blue Marble’s liability under or in relation to this agreement in contract, strict liability, tort (including, without limitation, negligence or breach of statutory duty by its personnel or the personnel of any of its sub-contractors) or otherwise arising in connection with the agreement, shall be limited to in respect of any proposal the price paid for the services.
6.6 Blue Marble shall not in any event be liable under or in relation to this agreement in contract, strict liability, tort (including, without limitation, negligence or breach of statutory duty by its personnel or the personnel of any of its sub-contractors) or otherwise, for:
6.6.1 Any loss of profits;
6.6.2 Loss or depletion of goodwill;
6.6.3 Loss of anticipated savings, business opportunity or data; or
6.6.4 For any indirect, special or consequential loss or damages.
6.7 No action, regardless of form, arising out of the transactions under the agreement may be brought by customer more than two years after the cause of action has accrued.
7. Intellectual property
7.1 Blue Marble retains all intellectual property in and to all know-how, information, data or other material whether in written or electronic form and including, but not limited to all marketing documents, logos, labels, badges and media-related data products provided to, or accessible by the customer as part of or related to the provision of the services.
8. Trade Mark Licence
8.1 Blue Marble may grant the Customer a non-exclusive, non-transferable licence to use one or more Trade Marks during the Term. Blue Marble warrants that it is the proprietor of any Trade Marks described in the Blue Marble Graphics System, nevertheless Blue Marble does not guarantee the legal validity, non-contestability or marketability of the Trade Marks or that use by the Customer of the Trade Marks will not infringe any Third Party rights.
8.2.1 Conditions applicable to the particular label, logo, marque or badge to which the Trade Mark licence relates (for instance, colour, design, time-frame or other graphic criteria)
8.2.2 Conditions relating to the type of product, packaging or other material to which the Customer may affix or associate any particular label, logo, marque or badge to which the Trade Mark licence relates
8.2.3 The type of use, advertising or external communication with which the particular label, logo, marque or badge to which the Trade Mark licence relates may be applied
8.3 In addition, the following apply to any Trade Mark licence:
8.3.1 The right of use is granted to the customer in relation to the relevant Trade Marks (e.g. label(s)), and the specifically licensed use, for its advertising and external communication in relation to the collaboration with Blue Marble and the associated services in the field of environmental impact;
8.3.2 Customer is entitled to affix the specifically licensed Trade Marks to the respective licensed products or product groups and batches and their packaging, to market the products so marked and thus to advertise them accordingly;
8.3.3 Use of the trade mark (e.g., label) is subject in particular to any requirements for the specification of the applicable qr code within the label;
8.3.4 The Trade Mark Licence is limited to the goods and services and territories specified for the respective individual order. Modification of the Trade Mark, or combination with other marks and character elements, is prohibited;
8.3.5 Use of the carbon-neutral label (‘carbon-neutral’) is tied to a specific purpose and may only be used if the customer has engaged in the CO2 Offsetting Services by Blue Marble, in the agreed quantity, within the agreed period and for the agreed quantity of products, goods or otherwise carbon-neutral services, companies or company divisions;
8.3.6 Offset of emissions, and carbon neutrality realised as a result, is rendered verifiable for the customer by means of a tracking system and use of a profile on the Platform assigned to the customer.
8.3.7 Misleading labelling, e.g. Labelling a product or group or batch of products with a false label, or with a label suggesting an offset that goes beyond the actual order, is not permitted. The label may not be applied or used if the product or the product group or batch, the service in question or the company, has not been made carbon-neutral or has been made insufficiently carbon-neutral.
8.4 The customer may not sub-licence a Trade Mark and may not modify, copy, reproduce electronic images copies or copies in any other form the particular label, logo, marque or badge to which the Trade Mark Licence relates.
8.5 The customer must keep accurate records of all use of the Trade Mark granted under the Trade Mark Licence and provide to Blue Marble a written quantitative accounting of all types of use pertaining to the Trade Mark. If the Customer so requests Blue Marble may provide a standardised form to be used for such annual accounting.
8.6 Trade Mark Licence expires automatically at the end of the Term or upon termination of this Agreement if not already terminated earlier in accordance with Trade Mark Licence terms provided only that the Customer may continue to use the Trade Mark for a period not exceeding three (3) months after the date on which the Trade Mark Licence ceases in order to use up residual stocks of printed material such as marked product packaging or advertising materials subject to the Trade Mark application still being true and accurate in accordance with its terms meaning that, for instance, a product or product batch to which is affixed a carbon-neutral label must still be carbon-neutral in fact, otherwise the label may not continue to be used. Any continued usage for such extended period is subject to verification to the satisfaction of Blue Marble in the absence of which use of the Trade Mark must cease immediately.
8.7 The customer will inform Blue Marble immediately upon becoming aware of Third Party labels, logos or markings appearing in the territory of use of a Trade Mark by the Customer pursuant to a Trade Mark Licence which are similar to or that may infringe the Trade Mark.
8.8 The Customer grants Blue Mark a right of subrogation in relation to any action deemed necessary by Blue Marble to protect or defend a Trade Mark for which purpose Customer grants Blue Marble its power of attorney and in exercising such right Blue Marble undertakes to keep the Customer aware of developments affecting its rights under the Trade Mark Licence provided only that in the event that the Customer is joined in any such action whether by Blue Marble or by a Third Party the Customer must meet its own legal and other costs related to its participation in such action.
8.9 In the event of an action by a Third Party in respect of which the customer has a Blue Marble Trade Mark, the customer remains bound by the terms of the Trade Mark Licence including the obligation to pay any fees payable thereunder for so long as this Agreement and Trade Mark Licence remain on foot.
8.10 Any breach of the Trade Mark Licence in this clause is a breach of this Agreement for which Blue Marble may terminate the Trade Mark Licence and this Agreement and in addition recover from the Customer monetary damages in respect of the loss of value of the Trade Marks across all territorial applications suffered by Blue Marble as a result of the Customer’s breach together with all costs incurred as a result of such breach including but not limited to legal and accounting costs and the cost of all other professional services necessarily incurred by Blue Marble and including all costs of injunctive or pre-emptive legal or other anticipatory action to prevent any such breach. A breach includes, but is not limited to, breach of any of the following:
8.10.1 Duration of authorised use is substantially exceeded in relation to the Blue Marble Trade Marks, in particular the Blue Marble labels/badges and/or Blue Marble logos;
8.10.2 Form covered by the registration in which the Trade Marks may be used;
8.10.3 Type of the goods or services for which the Trade Mark Licence is granted;
8.10.4 The territory in which the Trade Marks may be used;
8.10.5 Conformity of the goods manufactured or services provided by the customer using the Trade Mark, in particular as regards compliance with the requirements for achieving carbon neutrality.
9.1 Blue Marble may perform offsetting services for the benefit of the customer by purchasing and retiring/cancelling CO2 certificates representing the weight (mass) of greenhouse gas emissions that the customer has agreed to offset in a particular time period.
9.2 The customer may recommend the project or type of project from which Blue Marble should source the CO2 certificates for the purpose of offsetting, however Blue Marble does not guarantee being able to source CO2 certificates from a particular project or particular type of project in all instances. Customer shall pay to Blue Marble reimbursement of Blue Marble’s reasonable administrative costs (up to £375+VAT) in relation to Blue Marble researching the viability of Customer recommended projects.
10. Confidential Information
10.1 Blue Marble and Customer each agrees to keep confidential and not disclose to any Third Party any technical or commercial information (‘Confidential Information’) provided to it by the other party in relation to the Services or for the purpose of this Agreement both during the Term and for a period of forty eight (48) months after the Term ends (for whatever reason it ends) where technical information includes all product and business data, structuring, models, software or other information concerning that Party’s business operations and where commercial information includes prices, costs, or other financial data concerning that Party’s business operations.
10.2 Notwithstanding clause 10.1, a Party may disclose Confidential Information:
10.2.1 To a Third Party who is aware of it by other means not in breach of non-disclosure obligations; or
10.2.2 That has become publicly known other than by breach of clause 10.1; or
10.2.3 As mutually agreed by the Parties.
10.3 The Customer hereby grants Blue Marble the right to:
10.3.1 Use such Confidential Information that relates to activity and emissions data on an anonymised basis after the Term ceases; and
10.3.2 Include the Customer in Blue Marble’s reference customer lists and to use the Customer as a reference and for this purpose licences Blue Marble to use its company name and logo.
11.1 Blue Marble shall be entitled to terminate the agreement immediately by notice in writing to Customer if:
11.1.1 Customer commits an irredeemable breach of this agreement, persistently repeats a redeemable breach or commits any remediable breach and fails to remedy it within 30 (thirty) days of receipt of notice of the breach requiring remedy of the same; or
11.1.2 Customer makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debs or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere; or
11.1.3 Customer ceases or threatens to cease to carry on business;
11.2 If Blue Marble reasonably apprehends that any of the events specified in clause 11.1 are about to occur in relation to the other and notifies the other accordingly.
11.3 In the event of termination by Blue Marble pursuant to clause 11.1 above then, without prejudice to any other right or remedy available to Blue Marble, Blue Marble shall be entitled to cancel the agreement or suspend any further services under it without any liability to customer and, if the Services have already been supplied by not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12. Force majeure
12.1 Blue Marble reserves the right to defer the date of supply of the Services or to cancel the agreement without incurring any liability or amend the scope of the Services provided to Customer (without liability to Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Blue Marble including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), provided that, if the event in question continues for a continuous period in excess of 180 (one hundred and eighty) days, Customer shall be entitled to give notice in writing to Blue Marble to terminate the agreement.
13.1 The remedies available to Blue Marble under this agreement shall be without prejudice to any other rights, either at common law or under statute, which it may have against Customer.
13.2 The failure or delay of Blue Marble to enforce or to exercise, at any time, or for any period of time, any term of or any right, power or privilege arising pursuant to the agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect either party’s right later to enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
13.3 The invalidity or unenforceability of any term of, or any right arising pursuant to the agreement shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
13.4 Any notice or written communication required or permitted to be served on or given to either party under the agreement shall be delivered by hand or sent by recorded delivery mail to the other party at its address set out above or to such other address which it has been previously notified to the sending party and shall be deemed to have been given on the day of delivery.
13.5 The agreement is personal to Customer and Customer may not assign, transfer, sub-contract or otherwise part with the agreement or any right or obligation under it without the prior written consent of Blue Marble.
13.6 Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the agreement.
13.7 The agreement contains all the terms agreed by the parties relating to the subject matter of the agreement and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation (unless made fraudulently), undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the agreement except as set out in the agreement.
13.8 No variation or amendment to the agreement shall be effective unless in writing signed by authorised representatives of the parties.
13.9 The parties to the agreement do not intend that any term of the agreement shall be enforceable by virtue of the agreements (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.10 Any reference in these Conditions to any statute, law, statutory instrument, enactment, Order, regulation or other similar instrument having the force of law shall be deemed to include any lawful amendment, re-enactment, extension, replacement, modification, consolidation and/or repeal thereof.
13.11 The formation, existence, construction, validity and performance and all aspects of the agreement (including any associated non-contractual disputes or claims) are governed by the laws of England and the parties accept the exclusive jurisdiction of the English Courts.