In this Agreement the expressions referred to below shall have the following meanings unless inconsistent with the context :-
'The Purchaser' means the individual, partnership, body corporate or other undertaking purchasing or otherwise acquiring the Data or Data Services and includes its personal representatives or its successors (as the case may be). In agreeing to the usage of the data you will become the Data Controller [a person who, either alone or jointly or in common with other persons, determines the purposes for which and the manner in which any personal data are, or are to be, processed] and are required to comply with the Data Protection Act 1998.
'Data' means information of any kind, however represented whether comprising words, numbers, graphs, maps, pictures, sketches or otherwise in any other form and whether or not the property of the Company which is supplied or made available by the Company under this Agreement including Data provided pursuant to any Data Services rendered and Data includes any part thereof.
'Data Services' means the services defined overleaf in the Requirements Section provided by the Company which includes, without limitation, the following services :-
- 'Database Services' - work carried out by the Company on the Purchaser's own database.
- 'Profiling' – analysing the ‘Purchaser’s customer database in order to identify prospective customers with similar characteristics.
- 'Statistics' – means statistical analysis of the Company's Data.
- 'Teleresearch' – means compiling information from individuals, partnerships, body corporates or other undertakings over the telephone on behalf of the Purchaser.
'Third Party' means any individual, partnership, body corporate or other undertaking including (for the avoidance of doubt) any employee, agent or associated company of the Purchaser.
If the Purchaser fails to make full payment on the Due Date then without prejudice to any of the Company's other rights or remedies the Company may :-
- Suspend or cancel delivery of any Data or Data Services due to the Purchaser.
- appropriate any payment made by the Purchaser in relation to the provision of the Data or Data Services (or Data or Data Services supplied under any other contract with the Purchaser) as the Company may in its sole discretion think fit;
- charge the Purchaser interest calculated at the rate of 5% of the invoice price (exclusive of VAT) from the date of the invoice to the Due Date;
All overdue sums shall bear interest at 4 % over HSBC’s base rate from the date of due payment until the date of actual payment.
Assignment and Sub-Contracting
The Purchaser shall not be entitled to assign this Agreement without the Company's prior written consent, but the Company shall be entitled to assign it. The Company shall also have the right to sub-contract any of its duties or obligations under this Agreement. No Partnership or Agency
Nothing herein contained shall be deemed to constitute the Company and the Purchaser as partners or agents of one another. No Exclusivity
The Company shall have the right to offer for sale or sell to any Third Party any information obtained by the Company by itself or from any Third Party and supplied as Data ordered by the Purchaser except for Data obtained by the Company by means of Teleresearch which was ordered by the Purchaser on an exclusive basis. Exemption Clause
- Whilst the Company has endeavoured in both the collation of the Data and the provision of the Data Services, to ensure their accuracy, the nature of the Data and Data Services (as the Purchaser accepts and acknowledges) is such that:-
- • In the collation of Data and the provision of Data Services the Company often has to rely on information provided by the Purchaser or Third party and such information may have been incorrectly provided by such Purchaser or Third Party.
- • The Data and Data Services become incorrect through passage of time but to no pre-determined pattern and changes therein do not coincide exactly with the collation of the revisions of the Data or Data Services.
- Accordingly the Company does not guarantee or warrant that the Data or Data Services are without error and the Purchaser will not be entitled to refuse to pay any amount due or part thereof under this Agreement by reason of any error or omission in the Data or Data Services.
- The Company shall not be liable in contract, tort or otherwise for any direct, indirect or consequential loss or damage sustained or incurred by the Purchaser or others resulting from the Company’s failure to perform its obligations hereunder (in a timely manner or at all) or by directly, or indirectly, making use of the Data or Data Services, including, but not limited to, any loss or damage resulting as a consequence of any defects or inaccuracies or errors in the Data or Data Services.
- Unless otherwise excluded by sub-clause 6.3. the Company’s liability in contract, tort or otherwise for any loss or damage (excluding death or personal injury) sustained or incurred directly, or indirectly, by the Purchaser or others arising as a result of the Company’s breach of contract, negligence or howsoever, shall be limited to the amount of the Total Price shown overleaf. The Company will not be liable as set out in this sub-clause if the Total Price for the Data or Data Services has not been paid by the Purchaser by the Due Date of payment.
- Subject as expressly provided in this Agreement, all warranties, conditions or other terms implied by Statute or Common Law are excluded to the fullest extent permitted by law.
Variations to the Requirements required by the Purchaser will only be accepted where the variations and price for such variations have been agreed between the Purchaser and the Company in writing. Delivery
Any dates quoted for delivery of the Data or Data Services are approximate only and the Company shall not be liable for any loss or damage of any kind whatsoever suffered by the Purchaser from any delay from whatsoever cause arising, nor will any delay entitle the Purchaser to cancel or rescind this Agreement. Price
Copyright and Confidential Information
- The Company reserves the right to increase the Total Price if the Company sub-contracts to a Third Party and for whatever reason the Third Party increases its prices to the Company. In this case the Company will only increase its price to the Purchaser by the amount of the increase charged by the Third Party to the Company.
- Where the Total Price for Data Services is based on information supplied by the Purchaser and that information is subsequently changed or proves to be incorrect, the Company reserves the right to increase the price of the Data Services or cancel the order at their absolute discretion.
- The Purchaser hereby acknowledges the Company's copyright in the Data owned or acquired by it and supplied or made available by the Company under this Agreement. Furthermore, nothing contained herein will be construed as an assignment of any such copyright to the Purchaser which, at all times, shall vest in the Company or its Supplier.
- The Purchaser shall have no rights or interests of whatsoever nature in or to the Data except to use the same in accordance with the terms of this Agreement. For the avoidance of doubt, the Purchaser hereby agrees and acknowledges that the Data or Data Services supplied under the terms of this Agreement will not be used by the Purchaser and/or any other Third Party in the compilation of a product which competes with the Company’s or its Supplier's existing products.
- Where the Company undertakes Teleresearch on behalf of the Purchaser and as a result thereof revises the Company's existing Data, the Purchaser hereby agrees and acknowledges that the Data obtained can be utilised by the Company in any fashion whatsoever and without any liability (of whatsoever nature) to the Purchaser.
- Where the Company undertakes Teleresearch on behalf of the Purchaser and as a result thereof obtains information which is not on the Company's existing database then the copyright to that information vests in the Purchaser.
- Where the Purchaser requires the Data for its own internal purposes the Purchaser will keep the Data or Data Services confidential and will require its employees to do likewise. The Purchaser will at all times take the reasonable steps in relation to its employees, authorised and duly appointed agents to ensure that no Third Party reproduces or publishes the Data for his, her or its own financial gain (whether in hard copy or machine readable form and whether directly or in condensed or tabulated form) save and except in accordance with the terms of this Agreement.
- Where the Purchaser is a list broker agency or other person and requires the Data for use of or for the benefit of any Third Party the Data may only be disclosed to a Third Party which has contracted with such broker agency or similar person for the acquisition of the Data for a stated and particular use only and provided the Purchaser:-
- • has given the Company full details of the Third Party and of the proposed use of the Data and;
- • That such Third Party has previously agreement in respect of the use of the Data in such form as may be required by the Company.
- The Purchaser will not either during the subsistence of this Agreement or thereafter, disclose the Data to the Purchaser's customers or any Third Party, save in accordance with the terms of this Agreement.
- The Purchaser acknowledges that the Data constitutes an extremely valuable and important asset of the Company. Accordingly, without prejudice to the Company's other rights whether arising under this Agreement or otherwise, in respect of the Data which in the opinion of the Company on the basis of such evidence as is reasonably available to the Company, is used by or on behalf of the Purchaser in the compilation of data ("the Purchaser's database" which expression, where appropriate, shall include any part thereof) which is disclosed by or on behalf of the Purchaser to any Third Party, the Purchaser shall forthwith upon each such disclosure pay to the Company such sum as the Company determines that it would have charged for the supply of such part of the Purchaser's database as was disclosed by or on behalf of the Purchaser which was similar to the names and addresses in the Data (taking into account in determining such sum the types of data elements within the Data).
Without prejudice to the generality of the foregoing, the Purchaser agrees that it shall be irrefutably assumed that the Data has been used by the Purchaser in the compilation of the Purchaser's database if the entirety of the Purchaser's database contains names and addresses which are similar to more than half the names and addresses in the Data.
In respect of any such compilation the Purchaser undertakes that it will maintain sufficient records including in respect of each such supply copies of those parts of the Purchaser’s database which are supplied to a Third Party and forthwith upon request provide such records and copies in such machine readable form as will enable the Company to assess on the Company’s own computer system the amounts due to the Company under this clause.
- The provisions of this clause shall survive the termination of this Agreement and the rights of the Company hereunder are in addition to and not in substitution for any rights possessed at law.
- The Company may terminate this Agreement at any time by written notice to the Purchaser.
- Upon termination of this Agreement:-
- • all rights granted to the Purchaser under this Agreement shall cease to determine;
- • all Data supplied by the Company shall be delivered up to it forthwith or, alternatively, at the Company's option, destroyed by the Purchaser.
In the event that the words 'one-off rental' are used or alternatively when it has been agreed that one-off rental terms apply, the Purchaser undertakes that it will use the Data on one occasion only. The Purchaser further undertakes that on completion of the use of the Data on such occasion, the Purchaser will return to the Company, or at the Company's option destroy, the Data and the media upon which the Data is supplied to the Purchaser. The Purchaser acknowledges that the price of the Data has been calculated strictly on the basis of such undertakings. Data Leasing
In the event that the words 'data leasing' are used or alternatively when it has been agreed that leasing terms apply, the Purchaser undertakes that it will use the Data for the period of one year only commencing on the date of the Agreement. The Purchaser further undertakes that on expiry of the use of the Data, the Purchaser will return to the Company, or at the Company's option destroy, the Data and any copies thereof and the media upon which the Data is supplied to the Purchaser unless the Company and the Purchaser have agreed to extend the period of lease, whereupon these conditions will continue to apply during the extended lease period. Insolvency of Purchaser
- This clause applies if :-
- • the Purchaser makes any voluntary arrangement with its creditors or becomes subject to an administration order, or (being an individual or firm) becomes bankrupt (or being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
- • an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the Purchaser; or
- • the Purchaser ceases or threatens to cease to carry on business; or
- • the company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
- If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Purchaser, and if the goods have been delivered but not paid or the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
- Risk of loss or damage to the Data shall pass to the Purchaser on delivery by the Company to the Purchaser. Notwithstanding delivery and the passing of risk in the Data the property in the Data shall not pass to the Purchaser until the Company has received in cash or cleared funds payment in full of the Total Price under this and any other contract between the Company and the Purchaser.
- Notwithstanding that the Data remains the property of the Company, the Purchaser may sell or use the Data in the ordinary course of the Purchaser's business at full market value for the account of the Company. Any such sale or dealing shall be a sale or use of the Company's property by the Purchaser on the Purchaser's own behalf and the Purchaser shall deal as principal.
- Until such time as the property in the Data passes to the Purchaser, the Company shall be entitled at any time to require the Purchaser to deliver up the Data to the Company and if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any Third Party where the Data is stored and repossess the data.
- This Agreement will be interpreted and operated in accordance with the laws of England and Wales and the Purchaser hereby submits to the jurisdiction of the English Courts. The headings appearing in this Agreement are for the convenience of reference only and will not affect the meaning of anything contained therein.
- Failure by the Company to enforce any part of this Agreement shall not be construed as a waiver of any of the Company's rights therein.
- If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected thereby.
- THIRD PARTY RIGHTS. A person who is not a party to this Agreement will not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
Data Protection Act Statement
The Buyer confirms that they are aware of all their obligations and responsibilities which may arise under the Data Protection Act 1998 and indemnifies the Seller from all claims, losses and liabilities which the Seller may suffer or incur as a result of the Buyer's failure to comply with the Data Protection Act 1998.