1.1 In this Agreement and the Confirmation of Order save where the context otherwise requires the words and phrases below shall have the following meaning:-
"Accepted Data" Those Leads that are classed as meeting the criteria as stipulated by the End User and as laid out in the signed order confirmation, subject to the investigation process in clause 15.
"Additional Responses" means any Responses obtained by Prospect360 which exceed the cap set forth in the Confirmation of Order
"Agreement" means these Prospect360's Terms and Conditions and any associated Confirmation of Order
"Prospect360" Intertec Data Solutions T/A Prospect360, company registration number 4802191
"Confidential Information" all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives or advisers (together its Representatives) to the other party and that party's Representatives after the date of this Agreement, and whether before or after the date of this Agreement, in connection with this Agreement, concerning:
(a) the existence and terms of this Agreement;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, affairs, customers, clients, suppliers, plans, any information and Data, employees or officers, lists or requirements,price lists or pricing structures, marketing and sales information, financial information or plans, of the disclosingparty or of anymember of the group of companies to which the disclosing party belongs, its subcontractors, suppliers, End-Users,clients or othercontacts; and
(ii) the operations, manufacturing and engineering processes, product information, knowhow, designs, trade secrets, technicaland business information, inventions or products, production, production lines or software of the disclosing party or of anymember of the group of companies to which the disclosing party belongs, its subcontractors, suppliers, End-Users, clients orother contacts;
(c) any information developed by the parties in the course of carrying out this Agreement or which relates to the provision or use of the Services; and
(d) information relating to Prospect360 or its sub-contractors, suppliers, customers, clients or other contacts that is disclosed to, or processed or otherwise handled by the End User, its contractors, agents and/or resellers in the course of the performance of the End User's obligations under this Agreement.
The term "Confidential Information" does not include any information that:
(e) is or becomes generally available to the public (other than as a result of its disclosure the receiving party or its Representatives in breach of clause 9)
(f) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(g) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party
(h) was known to the receiving party before the information was disclosed to it by the disclosing party; (i) the parties agree inwriting is not confidential or may be disclosed; or
(j) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
"Confirmation Of Order" Prospect360 End User Order Confirmation form signed by the End User to which these conditions are annexed.
"The Core Question" The lifestyle questions to be formulated by Prospect360 and included in the Survey, details of which are available on request.
"Data" One copy of the responses to the Product Questions and the Core Questions that are maintained by Prospect360 or on its behalf provided to the End User either in paper, printed or other documentary form or on Magnetic tape or in other digital form (or additionally, alternatively stored on Prospect360's computer or that of its bureau at an additional rate to be agreed). Prospect360 reserves the right to provide to the End User all data sourced from Prospect360's Telephone Survey or Online Survey that is generated from the Product Questions, unless a maximum quantity or specific collection channel is specified on the Confirmation of Order.
"Data Subject" has the same meaning as in the Data Protection Act 1998
"Direct Marketing" means the business of selling products or services directly to the public rather than through retailers.
"Disposition Report" A report produced by the End User where each Lead in dispute has an "unaccepted" or "nonaccepted" reason placed next to it. This report must include "tel", "firstname", "lastname", "date dialled", "Confirmation of Order number" and "disposition" (disposition is the reason it is classed as a Lead that does not meet the criteria in the Confirmation of Order). These reports must be sent to the Account Manager within the timeframe stated in 15.1.
"Duplicates" A Lead that has already been supplied
"End User" means the party specified in the Confirmation of Order that is acquiring the right to have a temporary End User Licence to use or broker Prospect360's Data pursuant to this agreement
"End User Client" A client of the End User
"End User Licence" means the non-exclusive temporary and restricted licence granted to End User to use Prospect360's Data subject to the terms of this Agreement and the Confirmation of Order
"Enquirer" means an individual who, during the course of a telemarketing call or the completion of the online survey, responds to End User by expressing purchasing interest in the specific offer of the campaign for which PROSPECT360 Data has been provided or an individual who responds directly to the offer in a mailing piece sent by or on behalf of the End User, with a firm intention to purchase
"Error Rate" Calculated by taking the number of Leads which are classified as inaccurate (as stated in clause 16.12) compared to the full volume of the stated order as a percentage of that order.
"Estimated Quantity" The estimate by Prospect360 of the number of Responses to the Product Questions which will constitute the Data.
"External Email Broadcasting" a type of order whereby the data for broadcast via email is provided directly to the Purchaser to run their own campaign as opposed to using Prospect360 to broadcast the data on their behalf.
"The Fee" The fee payable by the End User to Prospect360 for the Service and licence to be provided by Prospect360 hereunder, calculated in accordance with clause 4 below.
"Intellectual Property Rights" 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, database rights, moral rights, rights in confidential information (including know-how and trade secrets) including Lead and Leads Data 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.
"Lead" Means the personal details of each consumer who has consented to being contacted by the End User and its End Users for the purpose of Direct Marketing
"Licence" The licence granted under clause 3 below by Prospect360 to the End User to use the Data.
"Licence Period" means the period during which time End User may make use of Prospect360's Data under the terms of this Agreement
"Licence Terms" the terms on which the End User is permitted to use the Licence under this Agreement.
"Mailing/Creative Piece" means promotional material which the End User may intend to communicate to individuals whose details are contained in the Data
"Net Names" means that the End User may be eligible for a percentage rebate for verified duplication of individuals within the Data and the End User's other data files. The percentage shown is the absolute minimum number of individuals that an End User will pay for.
"Not Quite Duplicates" Where 90% of the Lead matches a previously supplied Lead.
"Online Survey Investigation" An investigation into Leads generated from surveys done on selected websites.
"Original Opt-in Evidence" Evidence of the Data Subject agreeing to further communications for the purposes of Direct Marketing.
"Product"means the outcome after Service has taken place. This is distinguished from "Services"
"Product Questions" The Questions to be included in the Survey in relation to the End User's product category or sub-category specified in the Confirmation of Order.
"Purchaser" means an individual who purchases from the End User the specific product or service promoted in the telemarketing call or mailing piece or email marketing of the campaign for which Prospect360's Data has been provided.
"Response" means one Lead provided (or to be provided) by Prospect360 to the End User containing one person's answers to the Product Questions, and that person's name, postal address and / or telephone number and/or Email Address other information as specified on the Confirmation of Order.
"Reports" Including any disposition reports, customer service reports either from Prospect360 to the Sponsor or from the Sponsor to Prospect360.
"Royalty Statement" A statement detailing the revenues obtained from the Data
"Rejected Data" Those Leads that are classed as not meeting the criteria as stipulated by the End User and as laid out in the Confirmation of Order, subject to the investigation process in clause 15
"Seed Name" means a disguised dummy record unique to each output of Prospect360's Data to End User which is identifiable when communication is made by End User and which is used in order to monitor compliance with the Agreement and End User Licence.
"Service"means the labour and effort taken to produce a product and/or the labour and effort taken to get a product to the End User.
"Standard Output Format" A standard output format for the Data will include URN, Title, First Name, Last Name, Add1, Add2, Add3, Town, County, Postcode, Telephone Number.
A standard output format for any purchased data that is to be used for a Postal Campaign will include URN, Title, First Name, Last Name, Add1, Add2, Add3, Town, County, Postcode.
A standard output format for any purchased data that is to be used for an Email Campaign will include URN, Title, First Name, Last Name, Add1, Add2, Add3, Town, County, Postcode, Email Address. Unless otherwise stated on the order confirmation.
"Suppression List" A list of Leads given to Prospect360 for Prospect360 to check Data against. Any matching Leads will be removed entirely.
"Survey" The Survey to be compiled and executed by or in conjunction with Prospect360 which will contain the Product Questions and the Core Questions.
"Telephone Number" Where stated on the order confirmation, telephone number refers to both Landline and Mobile number unless otherwise requested by the client and stated on the order confirmation.
"Telephone Survey Investigation" An investigation into Leads generated from telephone surveys.
"Unit Price" Price per Lead, as stated on the Confirmation of Order
"Usage Terms"means the number of times as specified in clause 16.3 that End User is permitted to contact names.
"5x.x." A HTTP status code indicating that the server is aware that it is an error or is incapable of performing the request
1.2 The headings to the clauses in these Terms and Conditions are for the ease of reference only and shall not affect the interpretation or construction thereof.
2.1 Prospect360 reserves the right to alter the wording of the End User's proposed Product Questions and to refuse to include in the Survey questions which in the reasonable opinion of Prospect360 or their legal advisors are or may be illegal or unreasonable.
2.2 Prospect360 reserves the right at any time prior to the date of execution of the Survey to cancel this Agreement and/or the Survey without incurring any liability other than liability which may not by applicable law be excluded or limited, in which event no part of the Fee shall be payable by the End User.
2.3 In the event that any delivery date shall be agreed between Prospect360 and the End User, the End User acknowledges that such date shall be indicative only and that Prospect360 shall not be liable for any loss or damage suffered by the End User as a result of late delivery of the Data.
2.4 The End User agrees that it may be contacted by Prospect360 from time to time and gives consent to such contact.
3.1 Subject to clauses 5.2 and 6 below, in consideration of the Fee Prospect360 hereby grants to the End User the Licence upon and subject to this Agreement.
3.2 The End User shall have the right to use, but not copy, alter, manipulate, adapt of licence others to use, that part of the Data which is derived from responses to the Product Questions in accordance with the Confirmation of Order for a period of 28 days only unless otherwise authorised by the Sales Director of Prospect360 on the Confirmation of Order. Prospect360 shall use reasonable endeavours to keep confidential the said part of the Data which is derived from responses to the Product Questions.
3.3 Prospect360 shall have the right to analyse that part of the Data which is derived from responses to the Product Questions and to formulate conclusions from such analysis and extract information from such part of the Data and shall be entitled to use such information (including information comprising such conclusions) at its sole discretion by way of the grant of licenses to third parties or otherwise provided that nothing herein shall permit Prospect360 to reveal to any third party the Responses to any Product Questions that related exclusively to the business of the End User. For the avoidance of doubt, the End User shall be entitled to licence the Data to its client for the purpose of its client carrying out a direct marketing campaign so long as that client is subject to terms and conditions equivalent to this Agreement.
3.4 The End Users right to use that part of the Data which is derived from responses to the Core Questions shall be nonexclusive.
3.5 Prospect360 will deliver the Data to the address specified on the Confirmation of Order or in the instance where Data is delivered in real time by http post/get string, Prospect360 will deliver the Data in accordance with the set up documentation, to be supplied by the End User.
3.6 One-off email broadcasts or mailing allows the dispatch of a single mailing piece or creative to each name supplied as part of the Confirmation of Order.
3.7 Should an End User sub-licence the Data to an End User Client, the End User will ensure that the End User Client abides by the terms under this Agreement. The End User is liable for the End User Client.
4. CALCULATION AND PAYMENT OF THE FEE
4.1 The Fee will be calculated by multiplying the Unit Price stated on the Confirmation of Order, by the number of Responses actually provided. Prospect360's decision is final.
4.2 In the event that Prospect360 obtains Additional Responses then:
(a) Prospect360 shall be entitled to offer to the End User such Additional Responses at a discounted rate of 10% from theprorata rate calculated by reference to the Estimated Quantity
(b) Prospect360 reserves the right to offer any Additional Responses not acquired by the End User in accordance with clause4.2(a) to any of its customers on such terms as Prospect360 may determine.
4.3 In the event that Prospect360 agrees to supply the Data for the purpose of de-duplication against other data held by the buyer and on the basis that the End User shall only pay a proportion of the price reflecting the "Net Names" actually used, any claim for credit for the unused portion of the Data:
(a) Must be made within a period not exceeding three months from the date of delivery, unless otherwise agreed in writingbyProspect360 ; and
(b) Must be supported by a de-duplication report or certificate from a recognised data processing bureau or otherindependentagency approved by Prospect360.
4.4 The Fee is exclusive of any Value Added Tax which may be payable by the End User.
4.5 All sums due under this Agreement shall be paid by the End User within the date set within the payment terms section of the invoice, unless otherwise agreed in writing by Prospect360. In the event of defaulting payment, clause 4.7 will apply.
4.6 In order to continue receiving Data or Services, the End User agrees to make payments on account to Prospect360 to maintain the End User's account within Prospect360's credit limit.
4.7 Prospect360 reserves the right to charge interest on any sum not paid on a due date for payment at the rate of 2.5% per month or part thereof from the date due to the date such sum is received by Prospect360.
5. COPYRIGHT AND PROPRIETARY RIGHTS
5.1 Copyright and all other intellectual property rights of whatever nature in the Data, the Survey and the Product/Core Questions, including any right to prevent extraction and/or re-utilise, are and shall remain at all times the property of Prospect360, and nothing in this Agreement shall constitute a transfer, assignment or license of any copyright or intellectual property right of Prospect360 and/or the Data.
5.2 Subject to sub-clause 3.2 and 3.3 above Prospect360 reserves the right to grant licenses in respect of the Data to any other party or parties.
5.3 The End User shall notify Prospect360 immediately if the End User becomes aware of any suspected or actual unauthorised use of the whole or any part of the Data or the Reports by any person.
6. END USER'S OBLIGATIONS
6.1 The End User undertakes to Prospect360 that it will use the Data solely for the internal business purpose of the End User and/or End User's client, and for the purpose only of use as a source of reference for its circulation by mail or by telephone or if applicable electronic mail if applicable to some of all of the individuals listed in the Data.
6.2 Save for the purpose specified in sub-clause 6.1 the End User shall not without Prospect360's prior written consent reproduce, duplicate or copy the Data or any part thereof or information extracted there from, nor pass on, transmit or otherwise communicate the Data or any part thereof or any information extracted there from to any third party unless otherwise said in this Agreement.
6.3 In the event that the Data is contained on magnetic tape the End User alone will be permitted to extract information there from and to print the same in documentary form on condition only that:
(a) Any documents produced as aforesaid and any copies of such documents be retained in the possession of the End User and:
(b) Neither the magnetic tape nor any information extracted there from nor any document on which such information is printedor copies or any part of the aforesaid, shall be passed on, disclosed or otherwise communicated to any third party except theEnd User's client.
6.4 The End User agrees with and warrants to Prospect360 that any documents or other items mailed by or on behalf of the End User as a result of or following its use of Data will at all times comply with the current British Code of Advertising Practice, the British Code of Sales Promotion Practice and the ICSTIS Code and will contain nothing which infringes copyright or any other right of any third party or is defamatory, obscene, indecent or otherwise illegal or unlawful whether or not such a claim is justified or upheld. The End User further agrees and warrants that it will upon request by Prospect360 forthwith supply to Prospect360 copies of any such documents or other items.
6.5 In the event that any Consumer objects to the End User contacting the Consumer or requests that it ceases or asks for his or its name to be removed from any list the End User shall procure that such contact ceases forthwith and shall inform Prospect360 and provide Prospect360 on a monthly basis the details of the Consumer who does not wish to be contacted.
6.6 The End User hereby undertakes to Prospect360 that it will deliver to Prospect360 any notice or other communication in respect of the Data received from the Data Protection Registrar on its receipt thereof
6.7 The End User undertakes to Prospect360 that it will at all times comply with the provisions of the Data Protection Act 1998 in respect of its use and storage of the data.
6.8 The End User hereby undertakes that the instruction to Prospect360 in respect of the Responses and output format are correct in every respect and that should re-output of Data be required as a result of errors or omissions in these output instructions Prospect360 shall be entitled to charge the End User for such re-output according to its standard charges for Data output.
6.9 Final output instructions shall be supplied to Prospect360 by the End User at least 28 days prior to the proposed output date. In the event that instructions are not received by the due date Prospect360 reserves the right to supply the output according to the specifications contained on the confirmation or order and to charge the End User in respect of any additional costs arising as a result of such late supply.
6.10 The End User agrees with and warrants to Prospect360 that they, or those calling on their behalf, will at all times adhere to telemarketing legislation and best practice as set out in the Privacy and Electronic communications (EC Directive) Regulations 2003 and the Communications Act 2002 and that any telephone scripts will at all times comply with ICSTIS rules.
6.11 The End User agrees with and warrants to Prospect360 that any documents or other items mailed or emailed by or on behalf of the End User as a result of following its use of data will at all times comply with the current British Code of Advertising Practice, the British Code of Sales Promotion Practice and will contain nothing which infringes copyright or any third party or is defamatory, obscene, indecent or otherwise illegal or unlawful whether or not such a claim is justified or upheld. The End User further agrees and warrants that it will upon request by Prospect360 forthwith supply to Prospect360 copies of any such documents or items.
6.12 In the event of the End Users non-compliance with legislation or DMA code of practice or as set out in this Agreement, or general bad practice or mishandling consumers, which adversely affects the name of Prospect360 or results in additional effort by Prospect360's staff to handle such outcomes, Prospect360 reserves the right to subject charges of £1000 per instance.
7. EXTERNAL EMAIL BROADCASTING
7.1 The e-mail address email@example.com is used by Prospect360 for internally based campaigns
7.2 Email addresses are prone to frequent change, as well as being unreachable for a number of other reasons (such as, but not limited to, account disabled, mailbox full, limit on message size, anti-spam policy, firewall). A much higher percentage of undeliverable e-mail is to be expected than for mail, phone or fax. Where hard bounces exceed 20% of the Data, replacement data or a credit will be provided in accordance with 15.4. The End User accepts that no replacement data or credit will be given for undeliverable email addresses on the Data for any other reason for non-delivery, or for hard bounces below the 20% level. A hard bounce is defined as one where either the email recipient or the email domain does not exist, and in addition a 5.x.x error is returned by the sending or receiving email server. The End User will be asked to provide a broadcast report or other admissible evidence of the hard bounce rate before any claim for replacement data or refund will be considered by Prospect360.
7.3 Accepted and/or rejected leads must be confirmed via email to your sales account manager or to online@Prospect360.com by the 15th day of the following month. (January leads must be confirmed by the 14th February). Any rejected leads will require a full report â€ ̃Rejection Report' which should detail all the Data sent and a valid reason for rejection. Prospect360 will only reject leads if they are fraudulent or proven to be very poor quality (i.e. more than 3 inaccurate data fields). Any leads that have not been classified as Accepted Data or Rejected Data after the 15th of the following month will be assumed to have been Accepted Data End User and will be invoiced for the total volume of data that has been provided to the End User by Prospect360 as all will be classed as â€ ̃successfully delivered' by us without exception. All Acceptance Reports must be sent to online@Prospect360.com. Reports sent to other email addresses will not be accepted.
8. LIMITATION OF Prospect360'S LIABILITY
8.1 Prospect360 neither warrants nor undertakes nor represents nor is it a term or condition of any sale or agreement for any supply of the Data that the Data are accurate or complete or that any information contained therein is accurate or complete and (except for any liability for death or personal injury resulting from the negligence of Prospect360 or that of its servants or agents, or in relation to any other liability which may not by applicable law be excluded or limited). Prospect360 shall not be liable for any damages, losses, costs, charges or expenses of whatever nature (even if Prospect360 has been advised of the possibility of such damages) including any indirect or consequential loss or damage howsoever arising and including loss of profits, loss of sales, loss of turnover, loss of bargain, loss of opportunity, damage or corruption to or loss of use of computer equipment, software or data or loss of time on the part of management or other staff, caused by, arising out of or in any way connected with any such inaccuracy or omission.
8.2 Subject to the exception in clause 8.1 above Prospect360 shall not be liable for any damages, losses, costs, charges or expenses or whatever nature either consequential or otherwise which may arise as a result of the actual quantity of response which constitute the Data being less than the Estimated Quantity.
8.3 Subject to the exception in clause 8.1 above, Prospect360 shall not be liable for any damages, losses, costs, charges or expenses of whatever nature caused by, arising out of or in any way connected with, or for any failure by, Prospect360 to perform any obligation hereunder due to causes beyond its reasonable control (including without limitation industrial disputes, fires, acts of God and hostilities) or any other circumstances which Prospect360 could not reasonably foresee and provide against.
8.4 The End User shall not institute proceedings for damages for breach of this Agreement after the expiration of one year from the date on which the End User became aware of the same or the date on which it ought reasonably to have become aware of the same.
8.5 Subject to the exception in clause 8.1 above, Prospect360 shall not be liable to the End User for any indirect or consequential losses or damage (including without limitation loss of profits) in respect of any breach of this Agreement
8.6 Without prejudice to the provisions of sub-clause 8.1 to 8.5 hereof any liability of Prospect360 in respect of any claims of whatever nature arising out of or in any way connected with the Data or their sale, supply or use of or in respect of any breach by Prospect360 of any obligation or duty pertaining to the Data or to their supply or use (including any other liability of Prospect360 for negligence or breach of copyright) shall not in any circumstances whatsoever exceed in total the contract price of the Data unless separately agreed in writing by the End User and Prospect360, before the Confirmation of Order is returned.
9.1 End User party shall keep the other party's Confidential Information confidential and shall not:
(a) use any Confidential Information except for the purpose of exercising or performing its rights and obligations under thisAgreement and for the Permitted Purpose as defined in clause 9.2; or
(b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 9.
9.2 Prospect360 may disclose the End User's Confidential Information to the Supplier's personnel who are directly involved in the provision of the Services and who need to know the information (Permitted Purpose), provided that:
(a) Prospect360 informs that personnel of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for the personnel/Representatives' compliance with the confidentiality obligations set out in thisclause 9.
9.3 Prospect360 undertakes (except as may be required by law or in order to instruct professional advisers in connection with this Agreement) not to:
(a) disclose, or permit disclosure of, any details of this Agreement to the news media or any third party other than itssubcontractors;
(b) disclose that the End User is a customer or client of Prospect360; or
(c) use Prospect360's name or brand in any promotion or marketing or announcement without the prior written consent ofProspect360.
9.4 Nothing in this clause 9 shall prevent either party from using any techniques, ideas or know-how gained during the performance of this Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the other party's Confidential Information or an infringement of Intellectual Property Rights.
9.5 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.5, it takes into account the reasonable requests of the other party in relation to the content of the disclosure.
9.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party, or are to be implied from this Agreement.
9.7 On termination of this Agreement, each party shall:
(a) return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on theother party's Confidential Information;
(b) erase all the other party's Confidential Information from its computer systems (to the extent possible); and
(c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient partymay retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Informationto the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continueto apply to all documents and materials retained by a recipient party.
9.8 The provisions of this clause 9 shall survive for a period of three years from termination of this Agreement.
10.1 Prospect360 may terminate this Agreement and Licence forthwith on giving written notice to the End User if:
(a) The End User commits a serious breach of this Agreement (in the case of a breach capable of being remedied) shall have failed to remedy the breach within 14 days after the receipt of a request in writing from Prospect360 to do so or:
(b) The End User fails to comply with a statutory demand or goes into liquidation (other than for the purpose of reconstructionor amalgamation) or has a resolution passed for its winding-up or had an administration receiver appointed or has a petitionpresented to the court for an administrative order under Part 11 of the Insolvency Act 1986 or has a voluntary arrangementapproved under Part 1 of the Insolvency Act 1986.
10.2 Cancellation by Prospect360 under clause 2.2 above occurs.
10.3 Upon termination of this Agreement and Licence the End User, and any sub-processors of the End User, shall forthwith return the Data to Prospect360, and certify to Prospect360 that it has done so
10.4 Termination of this Agreement and Licence between Prospect360 and the End User for whatever reason shall not affect the accrued rights or liabilities of either party.
11.1 The End User shall not be entitled to assign, sub-licence or otherwise transfer this Licence or the benefit or burden of this agreement and this Licence shall be personal to the End User only Prospect360 reserves the right to assign the benefit or burden of this Agreement with the End User.
12. ENTIRE AGREEMENT
12.1 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and together with the Confirmation of Order constitutes the entire agreement between the parties relating to its subject matter. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of each of the parties.
13.1 The failure by Prospect360 to exercise a right or remedy hereunder shall in no manner affect Prospect360's ability to exercise its right or remedy at a later time. No waiver by Prospect360 of the breach of any provision hereof whether by conduct or otherwise on any one or more instances shall be deemed to be further or continuing waiver of such provision.
14.1 All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Confirmation of Order or such other address as the provisions of this clause. Any such notice may be delivered by hand or by first class pre-paid letter or by facsimile and shall be deemed to have been served of by hand when delivered if by first class post 48 hours after posting and if by telex or facsimile when dispatched.
15. DATA ERRORS, INVESTIGATIONS AND ORIGINAL OPT-IN EVIDENCE
15.1 Prospect360 cannot guarantee that the Data provided will be free from error. If an error has occurred, the End User should report it by email or in writing within 5 working days for telephone or email Data, or 30 days for postal Data, following the receipt of the Data. Should a complaint be received after this time Prospect360 reserves the right to refuse an investigation. A Disposition Report must have been provided to your Account Manager, via email, stating the reasons for the rejection of each Lead. These reasons must not include those highlighted in section 16.12.
15.2 Due to the nature of how Data is collected Prospect360 allows for a 5% Error Rate in the provision of the Data; the exception to this is daily deliveries where the allowable error rate is 25%. Should the Error Rate be reported by the End Use at higher than 5% (weekly) or 25% (daily) an investigation will take place.
15.3 A Telephone Survey Investigation involves listening to up to 20 randomly selected voice files and reporting back the results of that voice file investigation. An investigation can take up to 21 working days to complete.
(a) The process for selecting 20 Leads for investigation from the batch of data for which a complaint has been received will beto take up to 20 record entries in the order that the file was supplied Prospect360 reserves the right to refuse to investigatespecific Leads provided by the End User. The Leads will be selected randomly from the Data.
(b) Findings: If 19 out of 20 voice files (weekly deliveries) or 15 out of 20 voice files (daily deliveries) are found to be correct,no further investigation will take place and that batch of data will be deemed correct. Should the Error Rate be higher than 5%(weekly deliveries) or 25% (daily deliveries), Prospect360 will replace free of charge that batch of data with Leads up to thepercentage of error or offer a credit up to the value of the equivalent percentage of error.
(c) Prospect360 will only investigate 20 Leads as detailed in point 15.1, should the End User request greater than 20 Leads tobe investigated, an administration fee of £10 per record will be required, in advance of an investigation taking place. Theprocess for selecting the additional Leads will be the same as item 15.3.a.
15.4 An Online Survey Investigation involves selecting up to 20 randomly selected Leads and reporting back the IP address of machine that the survey was completed from. An investigation can take up to 21 working days to complete.
(a) The process for selecting 20 Leads for investigation from the batch of data for which a complaint has been received will beto take 20 record entries in the order that the file was supplied. Prospect360 reserves the right to refuse to investigate specificLeads provided by the End User. The Leads will be selected randomly from the Data.
(b) Findings: If 19 out of 20 Leads (weekly deliveries) or 15 out of 20 Leads (daily deliveries) are found to be correct, nofurther investigation will take place and that batch of data will be deemed correct. Should the error rate be higher than 5%(weekly deliveries) or 25% (daily deliveries), Prospect360 will replace free of charge that batch of data with Leads up to thepercentage of error or offer a credit up to the value of the equivalent percentage of error.
(c) Prospect360 will only investigate 20 Leads as detailed in point 15.3 for telephone and 15.4 for Online , should the clientrequest greater than 20 Leads to be investigated, an administration fee of £10 per record will be required, in advance of aninvestigation taking place. The process for selecting the additional Leads will be the same as detailed in paragraph 15.3.a fortelephone and 15.4.a for Online.
15.5 Prospect360 reserves the right to charge a £200 administration fee for any investigation where it is found that the error rate is below 5% (weekly) or 25% (daily).
15.6 Original Opt-in Evidence will not be provided to the End User. Where the End User can produce a valid letter from the Information Commissioner's Office or the Telephone Preference Service requesting such Original Opt-in Evidence, Prospect360 will use best efforts to obtain the Original Opt-in Evidence, except in cases where the Original Opt-in Evidence is older than six months from opt-in date.
15.7 De-duplication is provided by Prospect360 on a 'best efforts' basis only. Where a small number of "Not Quite Duplicates" may slip through this is unavoidable and the End User accepts that no replacement data or refund will be given in this case. In a limited number of circumstances (e.g. a postcode change or a building changes to multi-occupancy) the Royal Mail Address may change over time, in which case Prospect360 are unable to recognise such addresses as being the same and are unable to remove the duplicate this is unavoidable and the End User accepts that no replacement data or refund will be given in this case.
15.8 Where Data contains name elements (such as salutation, forename, initials, surname) the End User accepts that not all elements will necessarily be present for each Leads and that no replacement data or refund will be given for incompleteness of the Data in this instance.
15.9 Where the End User notifies Prospect360 of a Data Subject Access Request, Prospect360 shall respond to the End User within 40 working days.
16. Grant of Licence & Data Supply
16.1 End User shall have the right, in accordance with this Agreement, to use but not copy, alter, manipulate, adapt or license others to use PROSPECT360 Data.
16.2 End User warrants that PROSPECT360's Data shall not be used for the purposes of data enhancement or used for combining with End User's or with another third party's data.
16.3 The Usage Terms for the PROSPECT360's Data shall be single use only unless stated otherwise in the Confirmation of Order. Once a Data Subject has been contacted, the End User shall not contact that Data Subject again unless that Data Subject has become an Enquirer or a Purchaser. From five working days from receipt of password by the End User or from day of upload to portal or sFTP site, the End User shall have five days to report an Error Rate. Both parties acknowledge that thirty working days is a fair amount of time for the End User to report an Error Rate. Any Data used outside of thirty working days, which the End User then reports error with, will be subject to full payment at PROSPECT360's discretion.
16.4 This Agreement, for use of mailing data or email data, permit the despatch by End User of one Mailing Piece/Creative to each name supplied, unless otherwise agreed on the Confirmation of Order.
16.5 This Agreement, for use of landline telephone numbers, permit a single contact to be made by End User to each Lead whose contact details are provided in Prospect360's Data, subject to a maximum of six call attempts being made to make contact with them. For clarity, if the individual cannot be reached after three attempts this individual is not permitted to be called again under the End User Licence
16.6 All telemarketing campaigns conducted by the end user shall use compliant scripts, as per the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2002, referring to PROSPECT360 as the originator of the Data.
16.7 Individuals provided in PROSPECT360's Data who do not become either an Enquirer or a Purchaser immediately following the execution of the campaign as permitted in this Agreement, may not be contacted further by the End User
16.8 Contact details of an Enquirer may be retained by the End User for a period of no more than 14 days following initial first contact via the campaign as permitted under the terms of this Agreement provided that: This period of retention is permitted solely to allow End User a reasonable time to convert an Enquirer into a Purchaser
16.9 No further contact of any kind may be made by End User after the permitted 14 day period of retention unless the Enquirer has become a Purchaser
16.10 The Licence Period is a maximum of 28 days from the date of output. No use of Prospect360's Data after the expiry of the Licence Period is permitted
16.11 In the event of each breach of this Agreement by End User a re-use fee of the entire value of the Confirmation of Order will be imposed for every such breach. The parties hereby acknowledge such reuse fee to be a genuine pre-estimate of the loss occasioned by Prospect360 in respect of such breach.
16.12 End User accepts that Prospect360's Data may contain a percentage of goneaways, deceased, wrong numbers and inaccuracies. Up to 5% is deemed acceptable.
17. Security & Control
17.1 Prospect360 reserves the right to include Seed Names to ensure that PROSPECT360's Data is used in accordance with this Agreement.
17.2 In the event of a breach of Agreement, the End User shall notify the Account Manager within 24 hours of discovering breach and at any time on the provision of two (2) Working Days' notice from Prospect360, the End User shall grant Prospect360 and it agents reasonable accompanied access during working hours to its premises, computer systems, accounts, documents and Leads including information about End Users relevant to this Agreement and shall permit Prospect360 and its agents to question employees for the purpose of (a) verifying and monitoring the customer's compliance with any of its obligations under this Agreement; and/or (b) auditing the customer's security procedures, in particular to check compliance with any previously agreed information security standard (or such equivalent standard as may have been approved by Prospect360 in writing); and/or (c) verifying Royalty Statements (as applicable). In carrying out audits pursuant to this Clause, the End User acknowledges and agrees that Prospect360 shall be entitled to audit the End User's compliance with the provisions of this Agreement for a period of up to three years prior to the date of the current audit and also the End User's performance under any previous agreements between the End User and Prospect360 concerning the same subject matter.
17.3 Prospect360 agrees and warrants that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (Data Protection Act 1998). The End User will ensure that the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected. The End User will deal promptly and properly with all inquiries from Prospect360 relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
17.4 The parties agree that on the termination of the Services, The End User and any sub-processor's, at the choice of Prospect360, return all the personal data transferred and the copies thereof, where it has not been used by the End User, to Prospect360 or shall destroy all the Data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore. Prospect360 reserves the right to impose clause 17.2, above.
18. GOVERNING LAW AND JURISDICTION
18.1 These Terms and Conditions shall be governed by and constructed in accordance with the Laws of England. Any dispute which may arise between the parties concerning these Terms and Conditions shall be determined by the English Courts and the parties hereby submit themselves to the jurisdiction of those courts for such purposes.
18.2 Should such a Court determine a clause in the Agreement to be unlawful, the remainder of the Agreement shall continue to be upheld.
19.1 Prospect360 reserves the right to refuse cancellation a Confirmation of Order, or any order by the End User which form part of a series.
19.2 Each execution within a series will be treated as a separate order for execution in respect of cancellation.
19.3 Requests for cancellation of any order, product or service for execution must be made in writing stating all reasons for cancellation; these must be addressed to the Account Manager. If the End User wishes to cancel a Product, the End User must make the request for cancellation within fourteen working days from receiving the Data. The End User shall provide Prospect360 at least 30 calendar days' notice if the decision is taken by the End User to cancel a series or part of a series of a signed order confirmation.
19.4 If the End User shall cancel part of a series, the cost per unit as contained in the Confirmation of Order shall apply to all Data supplied under this order for Execution, irrespective of the date of supply of the Data.
19.5 If the End User chooses to cancel a Service, the End User shall notify Prospect360 by email, in writing or fax and addressed to either the Sales Director, Sales Manager or Account Manager and within fourteen working days. The End User will be liable to pay for any Services Prospect360 or any company working on their behalf has undertaken for the End User up until that cancellation date. If all Services requested by the End User have taken place before the End User gives notice of cancellation, the End User will be liable for the full amount agreed.
19.6 The cancellation date shall be effective from when the email (with a ̃read' receipt), in writing or fax arrives, or can reasonably be expected to arrive, to the Account Manager of Prospect360.
19.7 Prospect360 is not responsible for any costs incurred for the return of any Data.
20.1 The End User shall not (except with PROSPECT360 's prior written consent) during the term of this agreement, and for a period of one year thereafter, directly or indirectly, solicit or entice away (or attempt to solicit or entice away) any director, manager or member of the sales team at PROSPECT360.
20.2 If the End User is in breach of the provisions of clause 20.1 it shall pay compensation to PROSPECT360 of the revenue that PROSPECT360 has lost as a result of the End Users breach of contract, such compensation to be calculated as 25% of the net revenue received by the End User from such contract or business arrangement with such PROSPECT360 employee or supplier. The End User shall within 7 days of receipt of written notice from PROSPECT360, disclose in writing to PROSPECT360 the full details of the End User's contract with the PROSPECT360 employee or supplier (including the amount paid or payable to the Supplier under such contract).
20.3 The parties acknowledge that the levels of liquidated damages set out in Clause 20.2 are a genuine pre-estimate of the loss and damage which will be sustained by PROSPECT360 as a result of the End Users breach of clause 20.1 after taking into account all the circumstances known to the parties at the date of this Agreement.
Registered Office: Prospect360, Intertec House, 1 Tomlins Avenue, Frimley, Surrey GU16 8LJ. Prospect360 is a trading name of Intertec Data Solutions Ltd. Registered in England & Wales Company Reg. No: 4802191