Terms & Conditions

The Client will provide Delta Carbon with reasonable and timely access to all technical, commercial and financial information necessary to deliver the services and deliverables specified in the Engagement Letter. The specific categories of information required are set out in or will be agreed by the parties in writing as an annexure to, the Engagement Letter.

Where any information required for the performance of the services is held by a third party, the Client undertakes to use its reasonable endeavours to procure timely co-operation and access from that third party. Delta Carbon shall not be responsible for delays or incomplete deliverables arising directly from a third party’s failure to provide required information, provided that Delta Carbon has notified the Client promptly of such failure.

Each party will treat the other’s non-public information (“Confidential Information”) as confidential, use it only for the purpose of this engagement, and protect it with at least the same degree of care it applies to its own confidential information, but in no event less than reasonable care.

Confidentiality obligations survive termination or expiry of the engagement for a period of three (3) years. The following information is excluded from confidentiality obligations:

Delta Carbon retains ownership of all pre-existing methodologies, models, templates, tools, databases and know-how (“Background IP”). Nothing in this engagement transfers any ownership of Background IP to the Client.

Upon payment in full of the applicable phase fee, the Client receives a perpetual, non-exclusive, royalty-free licence to use the deliverables produced under that phase (“Foreground IP”) for its own internal business purposes, including any subsequent registration, validation or verification activity relating to the assets covered by this engagement. The Client may not sell, sub-licence or redistribute Foreground IP to third parties without Delta Carbon’s prior written consent.

For the avoidance of doubt, Foreground IP vests in Delta Carbon subject to the licence granted in clause 3.2 above. Where the Client requires an assignment of ownership of specific Foreground IP, this must be agreed in writing as part of the Engagement Letter or a Change Order, and may be subject to an additional fee.

Delta Carbon warrants that: (a) it will perform the services with reasonable skill, care and diligence; (b) personnel assigned to the engagement hold the qualifications and experience described in the Engagement Letter; and (c) the deliverables will, to Delta Carbon’s reasonable knowledge, reflect the information and data provided by the Client and the state of applicable methodologies at the time of delivery.

The Client warrants that: (a) it has full authority to enter into this engagement; (b) all information it provides to Delta Carbon is, to the best of its knowledge, accurate, complete and not misleading; and (c) it will promptly notify Delta Carbon if it becomes aware of any material inaccuracy in information previously provided.

Neither party makes any warranty beyond those expressly set out in this clause. Delta Carbon does not warrant any particular outcome in relation to carbon credit registration, additionality findings, credit volumes, market pricing or regulatory approvals, as these are subject to external factors and third-party determinations beyond Delta Carbon’s control.

Delta Carbon is entitled to rely on information, data and instructions provided by or on behalf of the Client as being accurate and complete, unless it expressly agrees in writing to perform independent verification. To the extent that any loss, error in a deliverable or delay is caused by information that is inaccurate, incomplete, out of date or misleading, or by the Client’s failure to provide information on a timely basis, Delta Carbon will not be liable for that portion of the loss, error or delay.

Delta Carbon’s total aggregate liability under this engagement, whether in contract, delict or otherwise, is limited to the fees actually paid by the Client under the Engagement Letter for the phase or workstream giving rise to the claim. This limit applies in aggregate to all claims arising under or in connection with the engagement, whether such claims arise at the same or different times, so that Delta Carbon’s total liability across all phases and workstreams combined shall not exceed the total fees actually paid by the Client under the Engagement Letter.

Neither party is liable for any indirect, consequential or pure economic loss, including loss of profit, loss of anticipated savings, loss of revenue or loss of opportunity, whether or not such loss was foreseeable or the party had been advised of its possibility.

Nothing in this clause limits either party’s liability for: (a) fraud or wilful misconduct; (b) death or personal injury caused by negligence; or (c) any other liability that cannot be limited or excluded under South African law.

Any claim by the Client must be notified to Delta Carbon in writing within twelve (12) months of the date on which the Client first became aware, or ought reasonably to have become aware, of the circumstances giving rise to the claim, provided that in no event may any claim be brought more than twenty-four (24) months after delivery of the relevant deliverable. Any claim not notified within these periods is irrevocably time-barred.

The services and deliverables are provided solely for the benefit of the Client and only for the purpose set out in the Engagement Letter. Delta Carbon owes no duty of care and accepts no liability to any third party (including any registry, verifier, auditor, credit buyer, investor or financier) who obtains access to or relies on any deliverable, whether or not Delta Carbon was aware that the deliverable might be disclosed to or relied upon by that third party.

The Client’s relationship is solely with Delta Carbon. The Client agrees that it will bring any claim arising out of or in connection with this engagement only against Delta Carbon, and not against any director, officer, employee, agent or subcontractor of Delta Carbon individually. The limitations and exclusions of liability in this Clause 5 apply for the benefit of, and may be relied upon by, each of those persons.

The Client indemnifies Delta Carbon against any claim, loss, liability, cost or expense arising from a third party’s use of, access to, or reliance on any deliverable where the Client has disclosed or otherwise made that deliverable available to the third party, except to the extent that the claim results from Delta Carbon’s fraud, wilful misconduct or gross negligence. For the avoidance of doubt, this indemnity applies equally where the Client discloses deliverables to registries, verifiers, auditors, lenders, investors or other professional advisers, and such disclosure does not create any duty of care or contractual relationship between Delta Carbon and those third parties.

Delta Carbon will disclose in the Engagement Letter any material conflict of interest of which it is aware at the date of the engagement. Where a potential conflict arises during the course of the engagement, Delta Carbon will disclose it to the Client promptly in writing and the parties will agree in writing how the conflict will be managed before Delta Carbon proceeds with the affected workstream.

Where Delta Carbon has a financial or commercial interest in any third-party platform, product or service that it recommends or proposes to use in connection with the engagement: (a) that interest will be disclosed in the Engagement Letter or by written notice as soon as Delta Carbon becomes aware of the conflict; (b) any such engagement will be on arm’s-length commercial terms; and (c) Delta Carbon will, upon the Client’s request, provide an independent benchmark of relevant fees and pricing before any transaction is concluded.

Delta Carbon confirms that, save as disclosed in the Engagement Letter, it is not aware of any other material conflict of interest as at the date of the engagement.

The fees and payment schedule applicable to each phase or workstream are set out in the Engagement Letter. All fees are exclusive of value-added tax (“VAT”) and any other applicable taxes, which shall be payable by the Client in addition.

Delta Carbon will invoice the Client in accordance with the payment schedule in the Engagement Letter. Invoices are due and payable within thirty (30) calendar days of the invoice date, unless otherwise agreed in the Engagement Letter.

Delta Carbon reserves the right to charge interest on overdue amounts at the prime lending rate of Standard Bank plus 2% per annum, calculated daily and compounded monthly, from the due date until the date of actual payment.

Disbursements and third-party costs reasonably incurred in delivering the services will be recharged to the Client at cost, subject to prior written approval where the cost exceeds the threshold stated in the Engagement Letter. Delta Carbon will provide supporting invoices or receipts on request.

If any undisputed invoice remains unpaid for more than fourteen (14) calendar days after its due date, Delta Carbon may, on written notice and without prejudice to any other right or remedy, suspend the services (in whole or in part) until payment is received. Any agreed timeline will be extended on a day-for-day basis for the period of suspension, and Delta Carbon will not be liable for any loss or delay arising from a suspension under this clause. If the Client disputes any part of an invoice, it must notify Delta Carbon in writing within ten (10) business days of the invoice date, giving reasons, and must pay the undisputed portion by the due date; failing such notice, the invoice is deemed accepted as correct and payable.

Any change to the scope of services, deliverables, timeline or fees agreed in the Engagement Letter must be documented in a written change order (“Change Order”) signed by authorised representatives of both parties before the change is implemented. Verbal agreements to vary scope are not binding.

If the Client requests a change, Delta Carbon will provide a written assessment of the impact on fees, timeline and deliverables within five (5) business days. Work on the proposed change will not commence until a Change Order has been signed.

Where Delta Carbon identifies that a change in scope is required because information provided by the Client is materially different from what was reasonably anticipated, Delta Carbon will notify the Client promptly and the parties will agree a Change Order before Delta Carbon proceeds with the revised scope.

Neither party will be in breach of the engagement or liable for delay or failure to perform its obligations to the extent that such delay or failure results from a Force Majeure Event. A “Force Majeure Event” means any event beyond the reasonable control of the affected party, including but not limited to: acts of God, natural disasters, epidemic or pandemic, extended power outages beyond normal grid conditions, cyberattacks on relevant registry or financial systems, changes in applicable law or methodology introduced by a registry body after the date of the engagement, or government actions.

The affected party must notify the other party in writing as soon as reasonably practicable after becoming aware of a Force Majeure Event, describing the event and its anticipated duration and impact. The affected party will use reasonable endeavours to mitigate the impact and resume performance as soon as possible.

If a Force Majeure Event continues for more than thirty (30) consecutive calendar days, either party may terminate the engagement on written notice, in which case the provisions of Clause 10 (Termination) apply.

Either party may terminate this engagement on fifteen (15) business days’ written notice. On termination, the Client will pay for all work performed and disbursements incurred up to the termination date on a time-and-materials basis at Delta Carbon’s standard rates, and Delta Carbon will deliver work-in-progress in the form it then exists.

Either party may terminate this engagement immediately on written notice if the other party: (a) commits a material breach and, where the breach is capable of remedy, fails to remedy it within fifteen (15) business days of written notice requiring it to do so; or (b) is placed in liquidation, business rescue, or any analogous insolvency proceeding.

The following clauses survive termination or expiry of the engagement: Clause 2 (Confidentiality), Clause 3 (Intellectual Property), Clause 5 (Liability), Clause 7 (Fees and Payment), Clause 11 (Data Protection), Clause 12 (Anti-Bribery and Anti-Corruption), Clause 15 (Governing Law and Dispute Resolution), and Clause 16 (Entire Agreement).

Each party undertakes to comply with its obligations under the Protection of Personal Information Act 4 of 2013 (“POPIA”) and any regulations promulgated thereunder in respect of any personal information processed in connection with this engagement.

Each party will implement appropriate technical and organisational measures to protect personal information against unauthorised access, disclosure, alteration or destruction. Personal information will be processed only to the extent necessary to perform the services and for no other purpose without the prior written consent of the other party.

In the event of an actual or suspected personal information breach, the affected party will notify the other party and, where required, the Information Regulator, in accordance with the requirements of POPIA.

Each party warrants and undertakes that it will at all times comply with: (a) the Prevention and Combating of Corrupt Activities Act 12 of 2004 (“PROCA”); (b) the Companies Act 71 of 2008 in so far as it relates to corrupt activities; and (c) all other applicable anti-bribery, anti-corruption and anti-money-laundering laws and regulations.

Neither party will, directly or indirectly, offer, pay, promise or authorise any bribe, kickback, facilitation payment or other improper benefit to any person, including any government official, in connection with this engagement.

Each party will promptly notify the other in writing if it becomes aware of any actual or suspected violation of this clause.

Delta Carbon may engage specialist subcontractors to assist in delivering the services. Delta Carbon will notify the Client of any material subcontracting arrangement in advance and will remain fully responsible for the performance of subcontractors as if such performance were its own.

Delta Carbon will ensure that all subcontractors are bound by confidentiality obligations no less protective than those set out in Clause 2 and by data protection obligations consistent with Clause 11.

Prior written approval from the Client is required before Delta Carbon engages any subcontractor whose fees will be recharged to the Client as a third-party cost under the Engagement Letter.

Notices under this engagement must be in writing and delivered by email to the addresses set out on the cover page of the Engagement Letter, or to such other addresses as a party notifies the other in writing. A notice sent by email is deemed received on the next business day after transmission, unless the sender receives an automated failure or bounce-back message indicating that delivery was not successful, in which case the sender must re-send the notice to an alternative address notified by the recipient or deliver it by another permitted method.

Routine project communications (including status updates, data requests and meeting invitations) do not constitute formal notices for the purposes of this clause.

This engagement is governed by and construed in accordance with the laws of the Republic of South Africa, without regard to its conflict-of-law principles.

The parties will first attempt to resolve any dispute arising out of or in connection with this engagement by good-faith negotiation between senior representatives of each party. Either party may give the other written notice of a dispute, and the senior representatives must meet and attempt to resolve the dispute within fifteen (15) business days after receipt of that notice.

If the dispute is not resolved under clause 15.2 within the fifteen (15) business day period referred to above, the parties will refer the dispute to mediation. The mediation will be a confidential, without-prejudice process facilitated by an independent mediator. The parties will agree the identity of the mediator within ten (10) business days after one party requests mediation in writing, failing which the mediator will be appointed by the Arbitration Foundation of Southern Africa (“AFSA”). The mediation will take place in Cape Town, South Africa, and will be conducted in English.

If the dispute has not been resolved by a written settlement agreement within fifteen (15) business days after the mediation session (or, if more than one session is held, the first mediation session), or within such longer period as the parties may agree in writing, either party may refer the dispute to and have it finally resolved by arbitration under the rules of AFSA. The arbitration will be seated in Cape Town, South Africa, conducted in English, and heard by one arbitrator agreed between the parties or, failing agreement within ten (10) business days, appointed by AFSA. The arbitrator’s award will be final and binding and may be made an order of court.

Nothing in this clause prevents either party from seeking urgent interim relief from a court of competent jurisdiction.

Waiver. No failure or delay by either party in exercising any right or remedy under the Engagement Letter constitutes a waiver of that right or remedy. A waiver of any breach does not constitute a waiver of any subsequent breach.

Relationship of the Parties. The parties are independent contractors. Nothing in this engagement creates a partnership, joint venture, agency, employment or fiduciary relationship between the parties.

Assignment. Neither party may assign, transfer, novate or otherwise deal with its rights or obligations under this engagement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Delta Carbon may assign its rights to a wholly-owned subsidiary or successor entity upon written notice to the Client.

Counterparts. The Engagement Letter may be executed in counterparts (including by electronic signature), each of which will be deemed an original and all of which together will constitute one and the same instrument.