Standard Terms And Conditions For The Licencing Of Data
These Terms and Conditions are deemed to be incorporated in every agreement entered into with Prospect 360 (part of Intertec Data Solutions Ltd) referred to as P360 from here on:
1 – DEFINITIONS AND INTERPRETATION
“Agreement” means this agreement between the client and P360 for the right to use the database supplied
“Client” means the individual firm limited company or any other party specified in the Agreement that is acquiring the database direct from P360 either for its own use or for use by a third party - the "User."
“Conditions” means the terms and conditions set out in this agreement.
“Force Majeure” means in relation to either party to the Agreement any circumstances beyond the reasonable control of that party (including without limitation any strike, lockout or other industrial action).
“Goods” means any products, materials or services supplied by P360 including information and lists
“Information” means any printed material or data supplied as Goods including printed lists, computer tapes or any other form of transferring or recording data.
“Intellectual Property Rights” means any and all patents, trademarks and copyrights rights in domain names rights in designs copyrights and database rights (whether registered or not) and any applications to register or rights to apply for registration of any of the foregoing rights in the List or Information and all other intellectual property rights of a similar or corresponding character that may subsist now or in the future in any part of the world.
“List” means any information, which is made up of names, postal addresses, mobile phone numbers, home telephone numbers and email addresses and other information of individuals and or businesses.
“Owner” means any individual firm, limited company or other party to whom the Information belongs.
“Processor” means any third party specified in the Agreement responsible to the Client or User to assist the Client or User in the use of the Goods.
“User” means the individual firm limited company or other party specified as a licensee above that is using the Goods other than the client.
1.1 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-
enacted or extended at the relevant time.
1.2 The headings in these conditions are for convenience only and shall not form part of the conditions nor affect their interpretation.
2 BASIS OF AGREEMENT
2.1 These conditions shall govern the Agreement to the exclusion of any other terms and conditions including those on any quotation that is accepted or purported to be accepted by P360 or those in any order made or is purported to be made by the client. No variation to these Conditions shall be binding on the parties unless agreed in writing between the duly authorised representatives of P360 and the client.
2.2 P360’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a duly authorised representative of P360 in writing. In entering into the Agreement and submitting any order the Client acknowledges that it does not rely on and waives any claim for breach of any such representations, which are not so confirmed.
2.3 Any typographical, clerical or other error or omission in any literature quotation, price list acceptance of offer, Order Confirmation, invoice or other document or information issued by P360 shall be subject to correction without any liability on the part of P360.
2.4 A failure by either party to the Agreement to exercise or enforce any rights conferred upon it by the Agreement or these Conditions shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
2.5.1 P360 will act as a principal at law in all its dealings with third parties.
2.6 Nothing in the Agreement shall create or to be deemed to create a partnership or the relationship of employer and employee between the parties.
3 ORDERS AND SPECIFICATIONS
3.1 No order submitted by a Client shall be deemed to be accepted by P360 unless and until confirmed in writing by a duly authorised representative of P360.
3.2 The Client shall be responsible to P360 for ensuring the accuracy of the terms of any order (including any applicable specifications) submitted by the Client and for giving P360 any necessary information relating to the Goods within sufficient time to enable P/G to perform the Agreement in accordance with its terms.
3.3 When submitting an order or at such other time as required by P360 the client shall provide 2 samples of all promotional material which is to be delivered to any name, postal address, email address or telephone number included in a List for approval by the Owner.
3.4 No order which has been accepted by P360 may be cancelled by the Client except with the agreement in writing of P360 and on terms that the Client shall indemnify P360 and the Owner in full against all loss (including loss of profit) costs, damages, charges and expenses incurred by P360 and the Owner as a result of cancellation and in all cases shall be subject to a minimum charge to the Client by P360 of £250.
3.5 Statements of the number of names, postal addresses, email addresses or telephone numbers included in a List are approximate only.
4 PRICE OF GOODS
4.1 The price of the Goods shall be P360’s quoted price as stated in the Order Confirmation email. All prices quoted are valid for 30 days only or until earlier acceptance by the Client after which time they may be altered by P360 giving written notice to the client
4.2 The Client shall be liable to pay P360’s charges for handling and carriage.
4.3 The price is exclusive of any applicable value added tax that the client shall be additionally liable to pay on the rendering by P360 of an invoice.
5 TERMS OF PAYMENT
5.1 Subject to any special terms. P360 shall be entitled to invoice the Client for the price of the Goods on or at any time after delivery of the Goods unless the Goods are to be collected by the client or the Client wrongfully fails to take delivery of the Goods in which event P360 shall be entitled to invoice the Client for the price at any time after P360 has notified the Client that the Goods are ready for collection or (as the case may be) P360 has tendered delivery of the Goods.
5.2 The client shall pay P360 the invoice value within agreed terms notwithstanding that delivery may have not taken place.
5.3 The time of payment of the invoice shall be of the essence of the Agreement. Receipts for payment will be issued only upon request.
5.4 The Client shall not be entitled to withhold payment of any amount payable under this contract to P360 because of any dispute claim against the amount payable under any other contract with P360.
If the Client fails to make payment on the due date then without prejudice to any other right or remedy available to P360, then P360 shall be entitled to:
5.4.1 terminate the Agreement.
5.4.2 charge the Client interest (both before and after any judgement) on the amount unpaid at the rate of two percent above HSBC Bank Plc. base rate per month until payment in full is made (a part month being treated as a full month for the purpose of calculating interest).
5.4.3 require the immediate return of the Goods and/or 5.4.4 set off against the price of the Goods any items owed by P360 to the Client under any contract between P360 and the Client.
5.5 If the Nett Names Agreement is less than 100% then the client must inform P360 in writing within 60 days of the date of the invoice the actual volume used. Failure to submit the volume used will result in the Nett Names Agreement been null and void and P360 will raise an additional invoice. You will receive a reminder on 30 days then again on 45 days.
5.6 If the volume used is more than the Nett Names Agreement volume then P360 will invoice the Client for the extra names used
6.1 Data supplied can be remailed with written confirmation by a duly authorised P360 representative.
6.2 An official PO# is required detailing the volume to be mailed.
6.3 the remail rate is 75% of the original list rental.
7.1 Any dates quoted for delivery of the Goods are approximate only. Time for delivery shall not be of the essence unless previously agreed by P360 in writing. The Goods may be delivered by P360 in advance of the quoted delivery date upon giving reasonable notice to the Client.
7.2 The Client must inspect the Goods upon delivery and must notify P360 in writing within seven days of delivery of any damage or shortage to the Goods supplied. If no such notification is given it shall be conclusively presumed that the Goods are complete and in good order and condition and fit for the purpose for which they are required and in every way satisfactory to the Client.
8 LIST SUPPLIED
8.1 All lists supplied shall include a quantity (not exceeding fifty) of dummy names and addresses in order to monitor the usage of the list and to ensure that the list is used in accordance with the Agreement.
9 USE OF THE INFORMATION
9.1 Unless otherwise agreed in writing by the duly authorised representatives of the Client and P360:
9.1.1 the client shall use the information once only and as specified in the Order Confirmation email and in any event within 6 months of the delivery of the information to the client.
9.1.2 the client shall not use the information until it has complied with condition 3.3 of these Conditions and the Owner has approved the sample.
9.1.3 the client shall not communicate with any name and postal address contained in any lists supplied in any way other than through the Royal Mail or other similar distribution or delivery medium.
the client shall not communicate with any name and email address or home or mobile telephone number contained in any lists supplied in any way other than as provided for in the order confirmation process.
10.OWNERSHIP OF THE INFORMATION
10.1 At all times full legal and equitable title including all Intellectual Property Rights in all and any information and any modifications and enhancements thereof supplied to the Client shall remain in the Owner’s.
10.2 The Client shall store or otherwise keep the information in such a way as clearly to indicate at all times that the information is owned by the Owner and shall not remove obscure or delete any mark placed on the information by the Owner which may enable the information to be identified.
11.PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
The client agrees with P360 throughout the period of the Agreement:
11.1 not to cause or permit anything which may damage or endanger the Intellectual Property Rights of the Owner or the Owner’s title to the information or assist or allow others to do so.
11.2 to notify P360 and the Owner immediately of any suspected infringement of the Intellectual Property Rights.
11.3 to take such reasonable action as P360 and/or the Owner shall direct at the expense of the Owner in relation to such infringement
11.4 to compensate P360 and the Owner for any use by the Client of the Information otherwise than in accordance with the Agreement.
11.5 To indemnify P360 and the Owner for any liability incurred to third parties for any use of information otherwise than in accordance with the agreement.
12.1 “Confidential Information” means: any information technical data or know-how including but not limited to that which relates to Lists research, product plans, products, services, customers, markets, software developments, inventions, processes, designs, drawing statistics, marketing or finances or other business or technical information which is treated confidentially including that of the Owner.
Confidential Information does not include information that:
12.1.1 is in the possession of the receiving party at the time of the disclosure
12.1.2 becomes part of the public knowledge or literature, not as a result of any action or inaction of the receiving party
12.1.3 is approved for release by the disclosing party in writing
12.1.4 becomes available to the receiving party from a third source not bound by any obligation of confidentiality with respect to such information
12.1.5 was independently developed or prepared by a party; or
12.1.6 is required to be disclosed by law.
12.2 Each party agrees not to use or reveal the Confidential Information disclosed to it by the other party for any purpose except to further the objective of this agreement. Each party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of confidential information of the other in order to prevent it from falling into the public domain or possession of persons other than those persons authorised hereunder to have any such information, which measures shall include at least a reasonable degree of care. This provision shall be binding on the parties and shall be treated and safeguarded hereunder by the receiving party notwithstanding the termination or expiry of this agreement.
12.3 Each party shall keep confidential all provisions of this agreement and shall not make any public announcement of it or its subject matter without the other party’s prior written consent.
12.4 The Client shall procure that all its employees who have access to any information to which these conditions apply shall be made aware of and subject to these obligations.
13.1 The client shall not be entitled to assign the rights of the agreement to any third party without the prior written consent of a duly authorised representative of P360.
13.2 The client shall ensure that the user or processor firstly is supplied with a copy of these conditions and secondly undertakes to act or not to act (as the case may be) in such ways as shall be consistent of the client’s obligations in the agreement.
13.3 The client agrees to conform at all times to the British code of advertising practice and the data protection act 1984, where applicable.
13.4 The client shall indemnify P360, its employees and agents, against all third party claims relating in any way to goods supplied by P360 or arising from breach of/or negligence in connection with the agreement to the extent that there are no proceeds of it’s public liability insurance available (after meeting any liability to the client covered thereby) to meet such claims.
14.P360 SALE’S RIGHTS
14.1 P360 shall be entitled to assign or sub-contract all or any part of its rights and/or obligations under this agreement.
14.2 P360 shall be entitled to refer to the client user or processor and outline the nature of the work performed for the client for publicising P360 to any third party.
15.1 Either party may terminate the agreement by giving written notice to the other party:
15.1.1 immediately upon breach by the notified party of any of these conditions or other terms of the agreement (including failure to pay any agreed charges).
15.1.2 Immediately upon the notified party entering into liquidation whether compulsory or voluntary (not being a voluntary liquidation for the purposes of reconstruction and amalgamation) or upon an encumbrance taking possession or a receiver being appointed over any of the property of assets of such party or upon such party making any assignment for the benefit of its creditors or ceasing to carry on its business.
16.1 If either party to the agreement is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
16.2 Notwithstanding any other provision of the agreement neither party shall be deemed to be in breach of the agreement or otherwise be liable to the other for any delay in performance or the non-performance of any of its obligations under the agreement to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party
17.1 Any notice required to be given by either party to the agreement to the other shall be in writing and shall be served by sending the same by registered or recorded delivery post to the address of the other party as notified by that party as being its address for service.
17.2 All notices documents communications and any other data to be provided under the agreement shall be in the English language unless otherwise agreed.
18.GOVERNING LAW AND DISPUTES
18.1 the construction validity and performance of the agreement shall be governed in all respects by English law.
18.2 All disputes arising in any way out of or affecting the contract shall be subject to the exclusive jurisdiction of the English courts to which the parties to the agreement agree to submit save that P360 or the owners shall have the right to sue for breach of their intellectual property rights in any country where it believes that infringement or a breach of this agreement relating to such intellectual property rights might be taking place.
18.3 If any term or provision in the agreement shall be held to be illegal or enforceable in whole or in part under any enactment or rule of law such term or provision or part shall to that extent be deemed not to form part of the agreement but validity and enforceability of the remainder of the agreement shall not be affected.
18.4 Save for the owner who may enforce the terms of this agreement against the client and the user who may benefit from the provisions of condition 8 (Use of information), a person who is not a party to this agreement does not have any rights under the contract (right of third parties) Act 1999 to enforce, or to enjoy the benefit of, any term of this agreement.
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