TERMS AND CONDITIONS

1	Interpretation
1.1	The following definitions and rules of interpretation in this clause apply in these Terms and Conditions.
1.2	Any terms defined in the Data Rental Order Confirmation shall have the same meaning in these Terms and Conditions unless the context otherwise requires

Data means any data provided by Prospect360 to the Client or Licensee, to be used solely by or on behalf of the Licensee under the terms of this Agreement. 

Data Controller, Data Subject, Personal Data, Data Processor, processing and process shall have the meaning as set out in Article 4 of The General Data Protection Regulation (EU 2016/679).
Data Protection Requirements means the Act, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (9SI 2000/2699), the Electronic Communications Data Protection Directive (92002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003), The General Data Protection Regulation (EU 2016/679), and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner, and the equivalent of any of the foregoing in any relevant jurisdiction.

DMA (UK) means the Direct Marketing Association (UK) Limited.

Email Data means any Data containing email addresses.

Client means the purchaser of the data on behalf of the Licensee, which may in some instances be one and the same.

Licensee means the ultimate user of the Data who purchases the right to use the Data from the Client, subject to the definitions of the Client above.

Expiry Date means the date on which the 12 Month Multi-Use Licence expires, which shall be 12 months from the date of delivery of the Data to the Client.

Intellectual Property Rights means all patents, rights to inventions, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database 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.

Order means the Data Rental Order Confirmation completed by the Client.

Unauthorised Use means any unauthorised usage including disclosure, transfer, resale, re-use of the Data under a One-Off Rental Licence, re-use or continued use of the Data under the 12 Month Multi-Use Licence after the Expiry Date, data capture, copying or modification of the Data in part or in whole.

References to “includes” or “including” shall be deemed to have the words “without limitation” inserted after them.

2	Provision of the Data
2.1	Prospect360 shall provide the Client with the data and the Client shall pay the Data Cost indicated in the Order on behalf of the Licensee.
2.2	Prospect 360 shall use reasonable efforts to ensure that the Data is accurate.

3	Scope of the Licence
3.1	3.1 Prospect360 grants to the Licensee a non-exclusive, non-transferable, revocable licence to use the Data during the term of the Licence for the Marketing Purpose,to the benefit solely of the Licensee, and to supply the Data to the Client, provided that the Client and Licensee comply with the requirements set out in these terms and conditions and in particular clauses 3 and 4.
3.2	The Client shall:
3.2.1	not reproduce, copy, supply to or use to the benefit of any party other than the Licensee, unless previously agreed in writing by a representative of Prospect360; and
3.2.2	ensure that its use of the Data complies with the codes of practice of the appropriate supervisory bodies, which include the DMA (UK), The British Codes of Advertising Practice, Advertising Standards Authority and Information Commissioners Office.
3.3	The Client acknowledges that communications to individual contacts using the Data is restricted to IT related business-to-business subjects and issues only, and no approach of a consumer nature is permitted.
3.4	In relation to the use of Email Data, the Client warrants that:
3.4.1	no communications will be sent to the contacts contained in the Email Data that contain malicious codes or scripts including but not limited to viruses, worms or Trojans whether intended or not; and
3.4.2	it shall observe email best practice recommendations as set out by DMA (UK) or any equivalent organisation for the geography or territory to which the Email Data relates; and
3.4.3	if the Email Data is supplied under a 12 Month Multi-Use Licence it is recommended as a guideline that contacts within the Email Data shall not receive more than one communication per month.

4	Licensee Requirements
4.1	The Client shall procure that the Licensee complies with all the obligations, terms of use and limitations set out in this Agreement and the Licensee shall enter into an agreement with the Client on similar terms.
4.2	Where the Data is supplied under a 12 Month Multi-Use Licence Prospect360 may at its discretion provide the Client with at least one month’s prior notice of the Expiry Date and both the Client and Licensee acknowledges that Data will be deleted by the Expiry Date.
4.3	The Client shall procure that where Data is supplied to a third party nominated by the Licensee for the purpose of conducting marketing campaigns on behalf of the Licensee, third party shall be aware of the terms of this Agreement and shall enter into an agreement with the Licensee on similar terms

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5	Unauthorised Use
5.1	Unauthorised Use of the Data impacts and even reduces the quality of the Data provided by Prospect360.The Data will contain seed names to prevent Unauthorised Use of the Data. Prospect360 will monitor use of seed names after the Expiry Date and in relation to One-Off Rental Licence if the Data has been used more than once. The Client shall not, and procures that the Licensee shall not, make any attempt to remove or interfere with the seed names
5.2	If Unauthorised Use is detected and confirmed upon investigation the Licensee will be deemed to have used the Data under an additional Licence, (either one-off or 12 months multi-use with effect from the date on which unauthorised use identified first takes place as the case may be). Prospect360 will invoice the Client or Licensee, and the Client or Licensee will pay the invoice in accordance with clause 7 of these Terms and Conditions
5.3	If Unauthorised Use by a Licensee is detected and confirmed upon investigation, Prospect360 reserves the right toapproach the Licensee directly to stop and charge for the Unauthorised Use.

6	Fees and Payments
6.1	Prospect360 will invoice the Client for the Data in advance of the provision of the Data. The Client must pay all invoices in full, without deduction before the data is released.
6.2	If any invoice has not been paid in full by its due date, then Prospect360 may charge the Client, and the Client shall pay Prospect360on demand, interest on the unpaid amount at the rate of 5% per annum from the due date for payment until payment is received in full by Prospect360.
6.3	All amounts due under this Agreement shall be paid by the Client in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7	Intellectual Property Rights
7.1	The Client acknowledges that all Intellectual Property Rights in the Data shall belong to Prospect360 and the Client shall have no rights in the Data other than the right to use it in accordance with the terms of this Agreement.
7.2	The Client warrants that all copies of the Data will be appropriately marked so that the Data is immediately identifiable as the property of Prospect360.

8	Security
8.1	The Client shall and shall procure that the Licensee shall ensure that the Data is kept secure and shall use best available security practices and systems to prevent and shall take prompt and proper action against unauthorised access, copying, modification, storage, reproduction, display or distribution of the Data.
8.2	Prospect360 reserves the right to attend the Client’s or the Licensee’s premises by giving reasonable notice in order to ensure that all reasonable care has been taken to comply with the conditions and obligations set out in this Agreement.
8.3	The Client shall keep the Data confidential, unless it has obtained the prior written approval of Prospect360 to disclose the Data or disclosure is required by law.

9	Data Protection
9.1	The Client shall comply with all its Data Protection Requirements.
9.2	The Client warrants that it is registered under the Data Protection Act or equivalent in its respective country in respect of the collation, processing and use of information and data derived from the Data.
9.3	The Client shall indemnify Prospect360for any cost, claim or expense arising as a result of the Client or Licensee breaching any Data Protection Requirements or causing Prospect360to be in breach of any Data Protection Requirement obligations.

10	Limitation of Liability
10.1	Nothing in these Terms and Conditions is intended to exclude Prospect360’s liability for:
10.1.1	death or personal injury caused by Prospect360’s liability;
10.1.2	fraud or fraudulent misrepresentation; or
10.1.3	any other liability that cannot be excluded or limited by law.
10.2	Subject to clause 10.1, Prospect360 shall in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
10.2.1	any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
10.2.2	any loss or corruption (whether direct or indirect) of the Data or information;
10.2.3	loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time);
10.2.4	any loss or liability (whether direct or indirect) under or in relation to any other contract; or
10.2.5	any costs or penalties associated with changes to the Data volumes delivered.
10.3	Notwithstanding any terms of this Agreement, Prospect360’sliability in respect of, or arising from the Data shall not exceed the fees paid by the Client to Prospect360under this Agreement.

11	Accuracy of the Data
11.1	The Data is believed to be accurate to the best of Prospect360 knowledge. Prospect360will accept no responsibility for the accuracy of the Data supplied or the responsiveness of campaigns and shall not be liable to the Client, the Licensee or anyone by whom the Data is used.
11.2	If the Data contains incorrect postal and/or phone records, Prospect360 shall provide the Client with replacements of the such incorrect records on a one for one basis provided the Client has notified Prospect360 within 30 days of the supply of the Data of such incorrect postal and/or phone records.
11.3	Data in respect of which an error has been identified or is otherwise the subject of a dispute between the Client and Prospect360will not be re-supplied until it has been returned to and checked by Prospect360. Where Prospect360 is found to be without fault, the Client shall be liable for all associated processing and delivery charges incurred.

12	Termination
12.1	Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may at any time terminate this Agreement with immediate effect by giving written notice to the other party if:
12.1.1	the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
12.1.2	the other party commits a material breach of any term of the Agreement (other than failure to pay any amounts due under the Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
12.1.3	the other party shall cease carrying on business in the normal cause, or shall call a meeting of its creditors or make a proposal for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or it is the subject of an administration order.
12.1.4	GDPR legislationand the upcoming ePrivacy Regulation, (once enacted), renders the data collection, storage and opt-in techniques utilised by Prospect360 to be obsolete or requiring revision in order to comply fully with the legislative requirements. In such an instance where continued use may breach GDPR or ePrivacy Regulation legislation, Prospect360 will have no choice but to terminate the licence and provide a pro-rata refund on the balance of the licence that has been terminated.
12.2	Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
12.3	Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
12.4	On any termination of this Agreement for any reason or on the Expiry Date, the Client shall, and shall procure that the Licensee shall, as soon as reasonably practicable return to Prospect360 or destroy all Data and both parties shall take the same steps in respect of any other information, software, and other materials provided to it by the disclosing party in connection with this Agreement including any information and materials that would be regarded by a reasonable business person as confidential.
12.5	Notwithstanding the provisions of clause 13.4, either the Client or the Licensee (but not both) may retain Data to the extent that the Client or Licensee has created its own independent record of contacts using the Data in circumstances where:
12.5.1	During a telephone conversation the Data Subject has agreed to be contacted again in the future, requested further information, made an order or volunteered details that would be deemed as positive two way dialogue with the Licensee.
12.5.2	In response to a piece of Direct Mail or Email, the Data Subject has contacted the Licensee by requesting further information either by post, phone, email or entered their contact details in an online or offline form.
12.5.3	The Data Subject has been met at an event and volunteered their details
12.5.4	A meeting has been arranged with the Data Subject
12.5.5	The Data Subject’s information was already held or was available from another source
12.6	The ownership of the Data Subject information does NOT transfer to the Licensee in the following examples: 12.6.1 In response to an email campaign the Data Subject opens an email or clicks through to a landing page
12.6.2	A Data Subject’s details have been verified by calling the company in which they reside
12.6.3	A voicemail has been left for the Data Subject
12.6.4	The Data Subject has not responded in a proactive manner to any campaign approach

13	General Provisions
13.1	Prospect360 reserves the right to amend these Terms and Conditions from time to time by giving reasonable notice to the Client.
13.2	This Agreement and any documents referred to in it shall supersede all previous agreements and shall represent the entire agreement between the parties relating to the subject matter of the Agreement.
13.3	No failure or delay by Prospect360 to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy.

14	Law and Jurisdiction
14.1	This Agreement and any dispute or claim arising out of or in connection with its subject matter shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts to resolve any disputes between them arising under or in connection with this Agreement.