1. INTERPRETATION
1.1 In these Terms and Conditions and the Confirmation of Order save where the context otherwise requires the words and phrases below shall have the following meanings:-
"Incisive" - includes in its meaning any holding company, sister companies or subsidiary companies;
"the licensee" - the individual firm of company whose name and addresses are set out in the Confirmation of Order.
"the Confirmation of Order" - the Confirmation of Order form signed by the Licensee to which those conditions are annexed.
"the License period" - the period as set out in the Confirmation of Order.
"List" means the proprietary information or data of Incisive consisting of names and addresses and any other agreed data relating to individuals in the form of printed lists or computer tapes or in any other form for transferring or recording data supplied to the Licensee and as further described in the Confirmation of Order; and
"Name" means a name and address obtained from the List and used by the Licensee
1.2 The headings to the clauses of these Terms and Conditions are for ease of reference only and shall not affect the interpretations or construction thereof.
2. LICENSE
2.1 The license to use the List shall be non-exclusive and non-transferable save as defined in the Confirmation of Order and is granted subject to the restrictions set out in this Agreement.
3. ACCESS TO THE LIST
3.1 Incisive will supply the List in the agreed output formation with a record layout as specified on this Confirmation of Order.
4. FEES
4.1 The fees shall be as specified in the Confirmation of Order and shall not be refundable.
4.2 All invoices of Incisive shall be paid by the Licensee within thirty (30) days of the date of invoice. In the event of late payment, Incisive may charge interest on the amount outstanding before and after judgement at the rate of four (4) percent above the Base Rate of Midland Bank plc in force from time to time from the due date until the date of payment.
4.3 If Goneaways, as defined by the Royal Mail, exceed 5% of the total number of Names rented, the Licensee shall be entitled to a credit in respect of the actual price paid for the number of Names Goneaway exceeding 5%. Such credit will only be due in respect of any mailing undertaken within two months of delivery of the List and will not apply to any repeat mailing. Such credit must be claimed within ninety (90) days of the mailing date and supported by the appropriate documentary evidence. Such credit may, at the option of the Licensee, be provided by means of credit on invoice or in the form of free Names to be provided with the next order made to Incisive by the Licensee.
4.4 Any other credits due to the Licensee in respect of any invoice must be claimed within thirty (30) days of the delivery date.
4.5 If any amount of the invoice is disputed by the Licensee the Licensee shall pay to Incisive the value of the invoice less the disputed amount in accordance with these payment terms. No dispute as to one invoice shall give the Licensee the right to withhold payments as to any other invoice not in dispute.
4.6 Where the Agreement requires payment of a deposit, the Licensee acknowledges that the deposit is not returnable.
4.7 All licence fees are exclusive of value added taxes which will be added to invoices where appropriate.
4.8 Any fees stated in this Agreement or the Schedules shall only relate and apply to the List provided hereunder and is in no way an indication of prices for other arrangements, orders or agreements with the Licensee.
5. DURATION
5.1 This agreement shall continue, without prejudice to any rights of earlier termination contained herein, for the period set out in the Confirmation of Order.
6. LIMITATION OF Incisive's LIABILITY
6.1 Incisive warrants that it has the right to license the List but otherwise the List is licensed on an "as is" basis without any warranty of any kind, express or implied, oral or written, including, without limitation, the implied conditions of merchantable quality, fitness for purpose and description, all of which are specifically and unreservedly excluded. In particular, but without limitation, no warranty is given that the List is suitable for the purposes intended by the Licensee.
6.2 Incisive shall not be liable for any claim arising out of the performance, non-performance, delay in delivery of or defect in the List nor for any special, indirect, economic or consequential loss or damage howsoever arising or howsoever caused (including loss of profit or loss of revenue) whether from negligence or otherwise in connection with the supply, functioning or use of the List or any breach of the Agreement. Any liability of Incisive shall in any event be limited to the license fees paid by the Licensee in the year in which the event of default arises.
6.3 Incisive warrants that the List will be supplied using reasonable care and skill. Incisive does not warrant that the List supplied is error-free, accurate or complete.
6.4 Nothing herein shall limit either party's liability for death or personal injury arising from the proven negligence by itself or its employees or agents.
6.5 The Licensee shall fully indemnify Incisive against any liability to third parties arising out of the Licensee's use of the List
6.6 Neither party shall be liable for any delay or failure to perform arising from circumstances outside of its control.
Terms and Conditions - Incisive One-to-One (continued)
7. PROPRIETARY RIGHTS
7.1 The List and the copyright and other intellectual property rights of whatever nature in the List are and shall remain at all times the property of Incisive. Incisive reserves the right to grant licenses to use the List to any other party or parties.
7.2 The Licensee shall notify Incisive immediately if the Licensee becomes aware of any suspected or actual unauthorised use of the whole of any part of the List by any person or party.
8. LICENSEE'S OBLIGATIONS
8.1 The Licensee hereby undertakes to Incisive that it will use the List solely for the internal business purposes of the Licensee.
8.2 Save for the purpose specified in the sub clause 8.1 hereof the Licensee shall not, without Incisive's prior written consent reproduce, duplicate or copy the List or any part thereof or information extracted therefrom to any third party whatsoever.
8.3 (a) Incisive warrants that it is registered as a Data User under the Data Protection Act. Each party will comply with the Data Protection Act including but not limited to its obligations in respect of any personal data which it may supply to or receive from the other party.
(b) The Licensee will ensure that any use to which the List is put to comply with the current Codes of Practice of the appropriate supervisory Bodies whose current codes are as follows:
The Direct Marketing Association (DMA); The British Code of Advertising Practice (BCAP), The British Code of Sales Promotion Practice (BCSPP), The Code of Practice of the Independent Committee for Standards of Telephone Information Services (CSTIS).
(c) The Licensee shall not use or transfer any of the List without submitting to Incisive examples of the mail pieces or other items to be sent or communicated using the List. They shall be submitted to Incisive at least three (3) working days before the day on which the List are required. Incisive will, where necessary, submit the mail pieces or other items to the Bodies responsible for administering the Codes of practice for their advice and or approval. The decision of these Bodies shall be accepted by Incisive and the Licensee and no claim shall be made for damages and consequential loss as a result of their decision.
(d) The Licensee hereby undertakes that the instructions to Incisive in respect of the List selections and special instructions as specified on the Order of Confirmation is complete and correct in every respect as the Licensee will be charged additional associated costs of re-output of an order due to and/or incomplete selection instructions.
(e) Any quotation given by Incisive of the number of Names included in the List is an estimate only.
(f) The Licensee is responsible for ensuring that the Order Confirmation is correct in all respects and includes an accurate and complete description of the List or Lists required
9 SECURITY AND CONTROL
9.1 During the continuance of the Agreement the Licensee shall effect and maintain adequate security measures to safeguard the List from access or use by any unauthorised person.
9.2 The Licensee shall retain the List and all copies thereof under its own effective control.
10 TERMINATION
10.1 Incisive may terminate this Agreement forthwith on giving notice in writing to the Licensee if:v
a) The Licensee commits any serious breach of any term of this agreement (including without limitation any breach of clauses 7,8 or 9) and 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 Incisive so to do; or
b) the Licensee fails to comply with a statutory demand or shall go into liquidation (other than for the purposes of
reconstruction of amalgamation) or have a resolution passed for its winding-up or have an administrative receiver appointed or have a position presented to the Court for an administration order under Part II of the 1995 Act or have a voluntary arrangement approved under Part I of the 1995 Act.
10.2 Forthwith upon the termination of this Agreement in consequences of breach by the Licensee, the Licensee shall return the List obtained by it to Incisive and all copies of the whole or part thereof and shall at the request of Incisive permit Incisive, its officers, agents or employees to enter upon the Licensee's premises in order to retake possession of the List obtained by the Licensee and all copies of the whole or any part thereof in the manner specified by Incisive and shall certify to Incisive in writing that it has been so destroyed.
10.3 Any termination of the Agreement howsoever occasioned shall not affect the accrued rights or liabilities of either party nor shall it affect the coming into force of any provision hereof which is expressively or by implication intended to come into or continue in force.
11 ASSIGNMENT
11.1 The Licensee shall not be entitled to assign, sub-license or otherwise transfer the benefit and/or the burden of this Agreement whether in whole or in part, and this agreement shall be personal to the Licensee only.
12 ENTIRE AGREEMENT
12.1 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties relating to its subject matter and constitutes the entire agreement between the parties relating thereto. No addition to or modification of any provision of this agreement shall be binding upon parties unless made by a written instrument signed by a duly authorised representative of each of the parties.
13 WAIVER
13.1 The failure by Incisive to exercise a right or remedy hereunder shall in no manner affect is ability to exercise that right or remedy at a later time. No waiver by Incisive of the breach of any provision hereof whether by conduct or otherwise on any one or more instances shall be deemed to be a further or continuing waiver of such provision.
14 NOTICES
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 addresses at the recipient may designate by notice given. In accordance with the provisions of this clause any such notice may be delivered by hand of by first class prepaid letter, telex or facsimile and shall be deemed to have been served if by hand which delivered, if by first class post 48 hours after posting and if by telex or facsimile when dispatched.
15 PROPER LAW AND JURISDICTION
15.1 This agreement shall be governed by and constructed in accordance with the laws of England. Any dispute which may arise between the parties concerning this Agreement shall be determined by the English Courts and the Subscriber hereby submits to the exclusive jurisdiction of those such purposes.
16 CANCELLATIONS
16.1 Incisive reserves the right to refuse Cancellation of this order by the Licensee.
16.2 The Licensee may request to cancel an Order Confirmation. Such requests must be made in writing stating all reasons for the request and be forwarded to Incisive by registered post and must be received by Incisive before the shipment has been effected and in any event within seven (7) days of the date of the relevant Confirmation of Order. Incisive reserves the right to refuse cancellation of the Confirmation of Order for any reason. The Licensee acknowledges that cancellation will give rise to substantial loss of profit on the part of Incisive who may take this into account and require compensation to be paid to it as a precondition to consenting to such cancellation.
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