T&C List 9

T&C List 9

1. Definitions
 
1.1 “Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
 
1.2 “Client” means the person or firm that purchases or otherwise acquires the Data from the Company.
 
1.3 “Commencement Date” has the meaning set out in clause 2.2.
 
1.4 “Company” means Intertec Data Solutions Ltd T/A Prospect360 registered in England and Wales with company number 4802191 whose registered office is at Intertec House, 1 Tomlins Avenue, Frimley, Camberley, Surrey, GU16 8LJ.
 
1.5 “Data” means the data set out in the Invoice, comprising information of any kind whether it be words, numbers, graphs or otherwise in any other form and whether or not it is the property of the Company or a third party, which is supplied or made available to the Client by the Company.
 
1.6 “Delivery Date” means the date on which the Company supplies the Data to the Client.
 
1.7 “Force Majeure Event” has the meaning given to it in clause 12.1.
 
1.8 “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
 
1.9 “Licence” means the licence between the Company and the Client for the use of the Data incorporating these Terms.
 
1.10 “Licence Period” has the meaning given in clause 3.2(a).
 
1.11 “Invoice” means the Client’s written acceptance of the Company’s quotation.
 
1.12 “Payment Date” has the meaning set out in 5.2(b).
 
1.13 “Price” means the charges payable by the Client for the supply of the Data in accordance with clause 5.
 
1.14 “Recipient” means each person whose details are the subject matter of the Data.
 
1.15 “Terms” means these terms and conditions as amended from time to time in accordance with clause 13.7.
 
1.16 In these Terms, the following rules apply:
  1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  2. a reference to a party includes its personal representatives, successors or permitted assigns;
  3. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  4. any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
  5. a reference to writing or written includes faxes and e-mails.


2.    Basis of Licence
 
2.1 The Invoice constitutes an offer by the Company to sell the Data in accordance with these Terms. The Client is responsible for ensuring that the terms of the Invoice are complete and accurate.
 
2.2 The Invoice shall only be deemed to be accepted by the Client when the Client makes payment for the invoice. At which point and on which date the Licence shall come into existence (Commencement Date).
 
2.3 The Licence constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Licence.
 
2.4 These Terms apply to the Licence to the exclusion of all other terms and conditions that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
 
2.5 Any repeat or subsequent requests by the Client for a licence to use the Data shall be subject to these Terms. For the avoidance of doubt, a separate Licence shall come into existence for each Invoice relating to the Data that is accepted by the Client in accordance with clause 2.2.
 
2.6 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
 
2.7 The quantity and description of the Data shall be as set out in the Invoice.


3.    Use of the Data
 
3.1 If the Invoice states that the Licence is for a specific number of uses:
(a) the Client shall only contact each Recipient for the number of times set out in the Invoice:
(b) if a Recipient replies to the contact authorised by clause 3.1(a) the Client is then permitted to contact that Recipient freely from the date of such reply;
(c) if a Recipient does not reply to the contact authorised by clause 3.1(a) the Client shall not contact that Recipient again.
 
3.2 For the avoidance of doubt an out of office message or other automatic response to any contact made by the Client does not constitute a reply for the purposes of clause 3.1(b).
 
3.3 If the Client breaches clause 3.1(a) or (c) it shall pay to the Company a sum equal to the difference between (1) the Price and (2) the amount the Client would have paid to the Company if the Licence had entitled the Client to use the Data for the total number of times that it has actually been used by the Client, such charges to be calculated in accordance with the Company’s pricing structure as at the date that the breach first occurred. The due date for such a further payment shall be the date on which the breach first occurred.
 
3.4 Breach of clause 3.1(a) or (c) shall constitute a material breach of the Licence for the purposes of clause 11.1(a).
 
3.5 Clauses 3.1 (b) and (c), 3.2 and 3.3 shall survive the expiry or termination of the Licence.
 
3.6 Data supplied by Prospect360 is not licensed for either SMS broadcast or automated recorded calls. As such it should never be used for either activity. If the client uses the data for either of these marketing methods, Prospect360 will inform the relevant regulators and take legal action against the client.
 
3.7 Any data supplied to organisations outside of the EEA is on strict understanding that the recipient will adhere to the Data Protection Act 1998 (https://www.legislation.gov.uk/ukpga/1998/29/contents) and the Information Commissioner’s Office (ICO) guidance on data protection (https://ico.org.uk/for-organisations/guide-to-data-protection).


4.    Delivery
 
4.1 All dates set out in the Invoice for delivery of the Data are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any loss or damage whatsoever suffered by the Client arising from any delay, however caused, nor will any delay entitle the Client to cancel or alter its obligations under the Licence. For the avoidance of doubt this shall not affect the Client’s right to cancel under clause 6.1.
 
4.2 The Company shall not be bound to deliver the Data until the Client has paid for it unless otherwise agreed in writing by the Company.
 
4.3 If the Company fails to deliver the Data, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement data of similar description and quantity in the cheapest market available, less the price of the Data. The Company shall have no liability for any failure to deliver the Data to the extent that such failure is caused by a Force Majeure Event or the Client’s failure to provide the Company with adequate instructions that are relevant to the supply of the Data.


5.    The Price and Payment
 
5.1 The Price for the Data is as set out on the Invoice.
 
5.2 The Client shall pay the price for the Data:
Time for payment shall be of the essence of the Licence.
 
5.3 The price is exclusive of VAT which shall be due at the rate ruling on the date of the VAT invoice. The Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the of the Data at the same time as payment is due for the Data.
 
5.4 If any payment is made later than the Delivery Date or, where the Company has agreed that payment may be made after the Delivery Date, the Payment Date then, without limiting any other right or remedy of the Company, the Company shall have the right to charge interest on the overdue amount at the rate of 4% per annum above the then base lending rate of HSBC Bank Plc accruing on a daily basis from the due date for payment until the date of actual payment of the overdue amount, whether before or after judgment and compounded quarterly. 
 
5.5 The Client shall pay all amounts due under the Licence in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.


6.    Cancellation
 
6.1 Subject to clause 6.2, the Client shall be entitled to cancel the Licence during the period that begins on the Commencement Date and ends on the day immediately before the Delivery Date by giving notice in writing to the Company.
 
6.2 If the Client cancels its order for the Data the Client shall pay to the Company the sum of £250.00 or 50% of the Price (whichever is the greater) within seven days of the date that the Client gave notice in writing to the Company of the cancellation.


7.    Intellectual Property Rights and Confidential Information
 
7.1 The Client hereby acknowledges that the copyright and other Intellectual Property Rights nothing contained herein will be construed as an assignment of any such copyright to the Client. Copyright shall at all times vest in the Company or its suppliers.
 
7.2 The Client shall have no rights or interests of whatever nature in the Data except to use the same in accordance with the terms of the Licence.
 
7.3 The Client shall not supply disclose or make available the Data to a third party except in accordance with the terms of the Licence.
 
7.4 The Client shall maintain adequate security measures to protect the integrity and security of the Data. Any breach or suspected breach of security shall be promptly notified to the Company.
 
7.5 Breach of this clause 7 by the Client shall constitute a material breach of the Licence for the purposes of clause 11.1(a).


8.    Warranty
 
8.1 Subject to the following provisions of this clause 8 and clause 9, the Company warrants that the Data will, at the time of delivery, correspond to the description set out in the Invoice.
 
8.2 The Company offers a 100% Accuracy Guarantee so that in the event any record we supply is found to be inaccurate, it will be replaced, on a like-for-like basis, free of charge.  This is subject to the Client giving notice to the Company within 7 days of delivery that the Data does not comply with the description set out in the Invoice.  The Client will need to supply those records deemed to be inaccurate, on a disposition report (Excel spreadsheet or Word document), indicating the nature of the inaccuracy and the record(s) will be replaced.
 
8.3 Except as provided in this clause 8, the Company shall have no liability to the Client in respect of the Data’s failure to comply with the description set out in the Invoice.
 
8.4 The Company shall be under no liability under the warranty in 8.1 if the Price has not been paid by the due date for payment.
 
8.5 Whilst the Company has used all reasonable endeavours to ensure the accuracy of the information contained in the Data the Client acknowledges that in the compilation and supply of the Data to the Client the Company often has to rely on information supplied by a third party and that such information may have been incorrectly provided and that by the very nature and volume of such Data accuracy cannot be verified. Therefore the Company does not guarantee or warrant that the Data is without errors or omissions and the accuracy of the Data is not a condition of the Licence and the Client will not be entitled to refuse to pay any amount due or part thereof by reason of errors or omissions in the Data supplied under the Licence.
 
8.6 The Client acknowledges that a bounced e-mail does not mean the Data is incorrect and confirms that it will make no claim against the Company for a refund in connection with a bounced e-mail. The Company makes no guarantee whatsoever to the response rates the Client may get.
 
8.7 The IP addresses of the Client’s servers or a third party (broadcaster’s) servers may be listed on a DNSBL database as a result of using the Data. Therefore the Company does not guarantee or warrant against this and it is not a condition of the Licence and the Client will not be entitled to refuse to pay any amount due to the Company for the Data under the Licence if the IP addresses are listed on a DNSBL database.
 
8.8 The Client acknowledges that spam filters may prevent as much as 25% of the Client’s e-mail marketing messages from being delivered to the Recipients’ in-boxes. The Client acknowledges that this is due to spam filters on the Recipients’ servers and is not because the Data is inaccurate or wrong. Therefore the Company does not guarantee or warrant against this and it is not a condition of the Licence and the Client will not be entitled to refuse to pay any amount due to the Company for the Data under the Licence if spam filters prevent delivery of the Client’s e-mails to the Recipients.
 
8.9 The Client acknowledges and agrees that the Company may plant up to five “seeds” per 1,000 Recipients for the purpose of enforcing any breaches of the Licence.


9.    Limitation of Liability: The Client’s attention is drawn to this clause
 
9.1 Nothing in these Terms shall limit or exclude the Company’s liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  2. fraud or fraudulent misrepresentation; or
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
 
9.2 Subject to clause 9.1:
  1. the Company shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Licence; and
  2. the Company’s total liability to the Client in respect of all other losses arising under or in connection with the Licence, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the charges paid by the Client for the Data.
 
9.3 Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Licence.
 
9.4 This clause 9 shall survive expiry or termination of the Licence.


10.Indemnity from the Client
 
10.1 The Client shall keep the Company indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by the Company as a result of or in connection with:
  1. any claim made against the Company by a third party arising out of, or in connection with, the use of the Data, to the extent that the claim is attributable to the acts or omissions of the Client, its employees, agents or subcontractors;
  2. any claim made against the Company by a third party arising out of, or in connection with the breach, negligent performance or failure or delay in performance of the Licence by the Client, its employees, agents or subcontractors;
and
  1. any claim made against the Company by a third party arising out of, or in connection with the Client disclosing or making available the Data to a third party, whether permitted by the Licence or not.
10.2 This clause 10 shall survive expiry or termination of the Licence.


11.Termination
 
11.1 Without limiting its other rights or remedies, either party may terminate the Licence with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of the Licence and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
  2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
  3. the other party goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors, has a receiver or administrative receiver appointed over its assets or a person becomes entitled to appoint a receiver or administrative receiver over the other party’s assets;
  4. any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(b) or clause 11.1.(c);
  5. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
  6. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
 
11.2 Without limiting its other rights or remedies, the Company may terminate the Licence with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Licence on the due date for payment.
 
11.3 On expiry or termination of the Licence for any reason:
  1. the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest in respect of Data supplied and, in respect of Data supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable immediately on receipt;
  2. the Client shall destroy and/or delete details of all the Recipients whether these details are held on a computer file or otherwise and shall cease to contact such Recipients unless this is authorised by clause 3.1(b) or clause 3.2(b);
  3. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Licence which existed at or before the date of termination or expiry; and
  4. clauses which expressly or by implication have effect after expiry or termination shall continue in full force and effect.


12. Force Majeure
 
12.1 For the purposes of the Licence, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
 
12.2 The Company shall not be liable for any loss suffered or incurred by the Client as a result of any delay in or failure of the Company performing it’s obligations under the Licence arising from any Force Majeure Event.
 
12.3 If the Force Majeure Event prevents the Company from performing any of its obligations under the Licence for more than four weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate the Licence immediately by giving written notice to the Client.


13.General
 
13.1 Assignment and subcontracting: The Client shall not be entitled to assign, transfer, charge, subcontract or otherwise deal with all or any of its rights or obligations under the Licence without the prior written consent of the Company. The Company may at any time assign, transfer, charge, subcontract or deal in any manner any or all of its obligations under the Licence.
 
13.2 Notices: Any notice or other communication required to be given to a party under or in connection with the Licence shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next.
 
13.3 Waiver: No failure or delay by either party in exercising any of its rights under the Licence shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Licence by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
 
13.4 Severance: If any provision of the Licence is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Terms and the remainder of the provision in question shall not be affected.
 
13.5 No partnership: Nothing in the Licence is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
 
13.6 Third parties: A person who is not a party to the Licence shall not have any rights under or in connection with it.
 
13.7 Variation: Except as set out in these Terms, any variation, including the introduction of any additional terms and conditions, to the Licence, shall only be binding when agreed in writing and signed by the Company.
 
13.8 Governing law and jurisdiction: The Licence, and any dispute or claim arising out of or in connection with it, shall be governed by, and construed in all respects in accordance with, the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.


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