Responsiva Limited’s Terms and Conditions of Sale for Data Licensing
In these terms and conditions of business the following words and expressions have the meanings set out below, unless the context requires otherwise:
‘Contract’ means the contract between you and us upon these Terms;
‘Data’ means the collection of data fields on the Database and all or any information provided to you in the provision of the Services and Data includes any part thereof;
‘Data Agreement’ means where required by a Data Supplier an agreement for the supply of Data between a Data Supplier and you;
‘Database’ means the data files of Data either compiled by us or obtained by us or provided by a Data Supplier.
‘Data Services’ means the services as set out in any proposal or quotation for data services to be provided by us, which includes, without limitation, the following services:
‘Data Hygiene’ means work carried out by us on your database to endeavour to improve the quality of your database;
‘Business Intelligence’ means work carried out by us on your database to provide an insight of the make-up, profile and importance to your business of all or any specified segments of your database or any part thereof;
‘Data Supply’ means the supply of Data using the Database;
‘Data Supplier’ means any third party who has supplied Data to us;
‘Direct Marketing’ means any form of telephone sales, telephone marketing, direct mail, market research or use of circulation list or fax marketing which is targeted at the end user;
‘Material’ means any disks, tapes, documents or other media supplied by us to you or a Third Party to carry the Data and other information of any kind howsoever presented whether comprising words, numbers, graphs, maps, pictures, sketches or otherwise which is supplied or made available by us under this Contract;
‘Services’ means the Data Services and the Data Supply or either of them as the context requires;
‘Terms’ means these terms and conditions;
‘Third Party’ means any individual, partnership, body corporate or other undertaking including any employees, principals, agents clients or associated companies of you or us (as the context requires);
‘we’ or ‘us’ means Responsiva Limited
‘you’ means you, the client.
2.1 Any order, confirmation, authority or approval made by you will be subject to these Terms to the exclusion of any other terms and conditions which you may seek to impose.
2.2 No order placed by you is accepted by us until we have confirmed it in writing. If you place an order after we have sent you a quotation you should sign and return a copy of the quotation to us within 28 days of the date of the quotation. If you place an order without returning a signed copy of the quotation you will be deemed to have accepted the terms of this Contract.
2.3 We are not bound by any statement about the Data Services or the Data Supply made by us before the formation of this Contract and you agree and acknowledge that you have not relied upon any such statement in entering into this Contract.
2.4 We are not bound by any variation, special terms or attempted cancellation or assignment of the Contract except where we have given our written consent.
3.1 We undertake to make available to you the resources required for the provision of the Services and to provide the Services in a timely and efficient manner. To enable this, you undertake that your staff and such other agreed resources that we may require in order to perform our obligations under this Contract will be available to us as required, that you will deliver information and other content to us in the agreed format and will not unduly delay the checking and acceptance of the Services developed.
3.2 You will provide a single named individual with overall responsibility for the ongoing relationship between you and us. This individual may either be your employee or your duly authorised representative. We will take instructions from this individual and you agree to be bound by the decisions of this individual.
4 APPROVALS, AUTHORITY AND AMENDMENTS
4.1 The provision of the Services will be discussed between you and us. We will prepare notes of agreements reached at such discussions (‘Contact Reports’) which will be signed by our responsible executive and will for all purposes be deemed to be accurate unless objection is made by you within 48 hours of the delivery of the relevant Contact Report to you.
4.2 If you request in writing that we cancel or amend any work in progress, we will take all reasonable steps to comply, provided that we can do so within our contractual obligations to third parties. In the event that it is not possible to make such cancellation or amendment you warrant that you will reimburse us for any charges or expenses to which we are committed and also to pay our fees for such work in progress.
5.1 The price for the Data Services and/or the Data Supply shall be the price shown in our proposal to you or as set out in our quotation.
5.2 The price does not include delivery, packing and insurance except where we indicate otherwise.
5.3 The time of payment of the price shall be of the essence to this Contract. All payments shall be made in full without deduction in respect of any set-off or counterclaim.
5.4 Unless otherwise expressly stated in writing payment of the full price shall be due no later than 30 days after the date of the invoice.
5.5 We are entitled to charge VAT at the current rate from time to time whether or not it is included in the quotation or invoice.
5.6 If you fail to make payment by the due date then without prejudice to any other right or remedy available to us, a credit charge will be made at a rate of 2% per month on a daily basis on accounts overdue by seven days or more. We reserve the right to vary the rate charged.
5.7 Without prejudice to our other rights, failing to make any payment due will entitle us, at our sole discretion, to refuse to supply any further Services without incurring any liability to you for any loss caused by any such refusal.
6.1 Time for delivery of the Services shall not be of the essence to this Contract unless we have previously agreed to this in writing.
6.2 If we agree with you to deliver the Data and/ or the Material, the cost of carriage, package, postage and insurance in transit will be added to the price. You must notify us in writing within 7 days of delivery of any errors in the Data or shortage of Material or Data delivered or damaged in transit and within 14 days of delivery of any alleged errors or omissions in the provision of the Services. Failure to observe these time limits will mean that you cannot make a claim against us.
If you deliver data to us, for example a copy of your database, whether in documentary form, on disk or tape or any other media, or by electronic transmission such delivery shall be at your risk and you will be responsible for the costs of delivery, insurance, packaging, and any loss or damage in transit. If you deliver your data to us you hereby warrant to us that your data is free of any virus, worm, Trojan horse or cancelbot and you further warrant that you have taken all reasonable efforts to have scanned and checked your data using the most up-to-date software prior to its delivery to us.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 The copyright and all other intellectual property rights in the Data, the Database and in computer programs used for and any products of the Services are, shall be and remain our property, the property of our Data Suppliers or of third party suppliers.
8.2 Where any of the Data is derived from information supplied to us by a Data Supplier you acknowledge the right of the Data Supplier and that you will not acquire any rights in relation to such information derived from the Data Supplier’s database or other intellectual property or rights including, without limitation copyright, trade marks, service marks or get up other than expressly granted in a licence under a Data Agreement or these Terms.
9.1 We acknowledge a duty not to disclose during or after the term of this Contract any confidential information resulting from studies or surveys commissioned and paid for by you and any data given to us by you concerning your customer and prospect database other than with your permission or otherwise as part of the provision of the Services to you.
9.2 Any information and documents (including financial information and information relating to our intellectual property) disclosed by us to you shall be and remain confidential and you shall not disclose it to any person without our written authority.
9.3 The Data and Materials supplied to you under this Contract is supplied in strict confidence and for your internal business use only. You warrant and undertake not to transmit or otherwise reveal such information to any person not employed in your own business or otherwise acting as your agent in any form or manner. You may, with our prior written consent supply lists of addresses or parts of such lists to agents for addressing correspondence provided that the obligations in these Terms apply to those and any other agents. You will not knowingly without our prior written consent ask for the Data for the use of others or wilfully or negligently permit such requests to be made by others. You may not order or permit the order of any Services for the use of any person other than the person disclosed in our proposal or quotation or order confirmation.
9.4 You may not make any copies of the Data other than one copy of the Data for archiving purposes. You must store the Data separately from other data in a secure environment. You must not permit any other person to copy the Data.
9.5 Where you are obtaining the Services on behalf of a third party as disclosed to us in accordance with paragraph 9.3 above, you may disclose the Data to any such third party provided that when you do so you warrant that you will obtain a written undertaking from such third party to use the Data in accordance with these Terms. You agree to indemnify us on a full and unqualified basis for any loss or damage whatsoever caused by breach of this term.
9.6 You warrant that you will inform all persons employed by you or engaged by you to act on your behalf who have access to the Data of the restrictions and obligations under these Terms.
9.7 You will keep the Data confidential and require your employees and any third party engaged by you to do likewise. You will at all times take all reasonable steps in relation to your employees, authorised or duly appointed agents to ensure that no Third Party reproduces or publishes the Data for his own financial gain except in accordance with these Terms. Neither us nor the Data will be identified by you nor any Third Party as a source of reference except with our prior written consent and we shall have an absolute right to refuse such permission. You will neither during nor after the subsistence of this Contract, disclose the Data to your customers or any Third Party except in accordance with these Terms.
9.8 The obligations of confidentiality set out in these Terms shall not apply to any information or Data which was already legitimately in the possession of the recipient at the time of the receipt, or was already available to the general public at the time of receipt, or subsequently becomes available to the public through no fault or omission on the part of the recipient, or is subsequently obtained from a Third Party which did not obtain the same under the conditions of confidentiality.
9.9 You agree to notify us immediately upon becoming aware of any unauthorised use of the Data.
10.1 You will ensure the Data is not used as a component of a product marketed by you to compete with one of our products or services or a product of a Data Supplier and in particular you will not use or permit the use of the Data for any purposes connected with the business of publishing directories (local, regional or national) on printed or electronic media whose content is primarily either classified advertising or ‘white pages’ (i.e. name, address, telephone number data) listings or to provide or enable the provision of a telephone directory enquiry service to the general public.
10.2 You will ensure that the Data is used and orders for the Data are fulfilled only from within the United Kingdom.
10.3 You may use the Data only for Direct Marketing and are not permitted to include the Data in any product or service that you sell (other than to your customer as shown on the order form).
10.4 We will mark the Data to show our Data Suppliers proprietary rights in respect of the Data by, for example, placing notices of the Data Supplier’s copyright conspicuously on products incorporating the Data. You will ensure that such notices remain incorporated and that your customer (if any) is made aware of our Data Supplier’s proprietary rights.
11 LICENSING AND USE OF INFORMATION
11.1 You appoint us and we agree to act as your agent for the purpose of procuring for you the right to use the Data under a Data Agreement. If required by us, you agree to execute and return to us a Data Agreement at such time as we require. Until the Data Agreement is received by us we may not make the Data Supply or otherwise provide the Services.
11.2 You warrant that the purpose for which the Services and/or Data is to be used is as confirmed by us in our proposal or quotation.
11.3 If the words ‘one-time use ‘ are used in our proposal or quotation, you undertake that you will use the Data on one occasion only. You undertake that on completion of the use of the Data on that occasion, you will return to us or at our option destroy the Data and the Material. You acknowledge that the price of the Data has been calculated strictly on the basis of such undertaking.
11.4 If the words ’12 month lease’ are used in our proposal or quotation, you undertake that you will only use the Data for a period of 12 months from the date of delivery. You undertake that at the expiry of that 12-month period, you will return to us or at our option destroy the Data and the Material. You acknowledge that the price of the Data has been calculated strictly on the basis of such undertaking.
11.5 If the words ‘perpetual use’ are used in our proposal or quotation, you undertake that the Data will only be used for your internal business use only and otherwise in accordance with the provisions of condition 9.3 and the Terms of this Contract.
11.6 If you use the Data beyond the terms agreed, then we shall invoice you at the full rate applicable to such unauthorised use.
12 ADVERTISING STANDARDS AND DATA PROTECTION
12.1 Nothing in these Terms relating to the confidentiality or secrecy of the Data shall prevent or hinder either us or you from complying with our legal obligations as to disclosure or otherwise under the Consumer Credit Acts 1974 and 2006 and the Data Protection Act 1998 (“the Act”).
12.2 You hereby warrant to us that any third party data supplied to us for use by us in any Direct Marketing has been appropriately obtained from the relevant third party and registered under the Act and that we may lawfully process such data in accordance with the Act.
12.3 You hereby consent to us processing any of your personal data for whatever purpose unless you expressly inform us otherwise in writing as to those purposes for which you do not wish us to process your personal data. If you inform us that you do not wish us to process your personal data for any purpose such that we cannot perform our obligations under this Contract, we reserve the right to suspend all further deliveries of the Service to you and to terminate the Contract forthwith and without liability.
12.4 You will ensure that any use to which the Data is put complies with the current regulations of the Post Office and the Universal Postal Union and with the current codes of practice of any applicable supervisory bodies.
13.1 We warrant that the Services will be provided in a good and workmanlike manner. Where the Material is a disk or tape, we warrant that the disk or tape will be free from material defects in material and workmanship for a period of 90 days from delivery. We will replace free of charge any disk or tape which we agree is defective if you return the disk or tape to us at your risk and expense within the 90 day period. We are not liable for any defect if it is caused by wear and tear, or intentional damage, or failure to follow instructions.
13.2 These warranties are given by us subject to the following conditions: we shall be under no liability in respect of any defect in the provision of the Services arising from the specific instructions or approval provided by you; and we shall be under no liability under the above warranties (or any other warranty) if the total price for the provision of the Services has not been paid by the due date for payment.
13.3 Where any valid claim is made which is based on any defect in the quality of the Services, or any omissions or errors in respect thereof, we shall be entitled to carry out the Services (or any part thereof) again, free of charge, or at our sole discretion, to refund to you the price of the Services (or an appropriate part of the price) but we will have no further liability to you provided that any such claim is made within a period of 14 days of the date of delivery of the Services pursuant to condition 6.2.
14 LIMITATION OF LIABILITY
14.1 Time for us to perform any obligations is not and may not be made of the essence.
14.2 We shall have no obligation, duty or liability in contract, tort, for breach of duty of otherwise, beyond that of a duty to exercise reasonable skill and care,
14.3 We shall not be liable in contract, tort or otherwise (including liability for negligence or breach of statutory duty) for loss (whether direct or indirect) of business revenue or profit, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatsoever.
14.4 Whilst we attempt to ensure that the information in the Services provided is accurate and complete, by reason of the immense quantity of matter dealt with in providing the Services and in compiling the Data and the fact that the data contained in the Services may be supplied by sources not controlled by us, or which cannot always be verified, as well as the possibility of negligence or mistake, we do not guarantee the correctness or effective delivery of the Services and we will not be held responsible for any errors therein or omissions therefrom. We use all reasonable commercial endeavours to ensure the accuracy of the Data or the Database but we do not give any warranties express or implied regarding the accuracy or completeness of the Data or the Database.
14.5 We do not exclude or restrict liability for death or personal injury resulting from our own negligence.
14.6 Each provision of this condition 14 limiting or excluding liability operates separately and if any part is held unreasonable or inapplicable in any circumstances the other parts shall continue to apply.
We and the Data Suppliers insert a small amount of false information into the Data for the purpose of ensuring that no breaches of these Terms takes place. You agree not knowingly to delete any such false information. You hereby acknowledge and agree to this practice. You further acknowledge and agree that neither we nor any third party shall be liable to you in respect of any loss, expenses, damage or demand incurred by you as a result of your reliance on such false information.
16.1 We shall be entitled (without affecting other rights we may have) immediately to suspend all further deliveries of the Services to you until you have remedied any breach of which we notify you and to terminate the contract or any part of it if:
16.2 you commit any breach of this Contract and fail to remedy that breach (if it is capable of remedy) within a period of 30 days from receiving notice in writing from us requesting remedy; or
16.3 your business becomes subject to legal distress or execution; or
16.4 you offer to make any arrangements with your creditors or become bankrupt or being a limited company have a receiver, administrative receiver or administrator appointed over the whole or part of the property; or
16.5 any order is made or a resolution is passed or proceedings are taken for your winding up; or
16.6 you cease to carry on or threaten to cease to carry on all or a substantial part of your business; or
16.7 any of our Data Suppliers terminate their agreement with us for the supply of Data.
16.8 Despite any such termination you shall pay us for all work done and Material delivered up to and including the date of termination of this Contract. We shall not be under any obligation to supply any Services after the termination of this Contract.
17 FORCE MAJEURE
We shall not be liable to you or be deemed to be in breach of the Terms by reason of any delay in performing, or any failure to perform any of our obligations in relation to the provision of the Services if the delay or failure was due to any cause beyond our reasonable control.
Notice may be given by either of us to the other by sending them to the registered office of the other party. Any such notice will be valid if sent by first class post or fax and deemed to be received on the second business day following posting or transmitting.
19.1 Failure or neglect by us to enforce at any time any of the provisions of this Contract shall not be construed nor shall be deemed of our rights hereunder nor in any way affect the validity of the whole or any part of this Contract nor prejudice our rights to take subsequent action.
19.2 In the event that any or any part of the terms, conditions or provisions contained in this Contract shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid and enforceable to the fullest extent permitted by the applicable law.
19.3 Nothing in this Contract shall confer on any third party any benefit or the right to enforce any term of this Agreement and the Contract (Rights of Third Parties) Act 1999 is hereby expressly excluded.
19.4 You shall not be entitled to assign this Contract whether voluntarily or involuntarily or by operation of law in whole or in any part to any party without our prior written consent. No such assignment by you howsoever occurring shall relieve you of your obligations hereunder.
20 LAW AND JURISDICTION
This Contract is governed by and interpreted in accordance with English law. The parties agree that the English courts will have non – exclusive jurisdiction to hear any disputes relating to this Contract.