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Terms and Conditions
DEFINITIONSIn this Agreement they have the following meanings: 'List Price' means the price paid by the Customer for the Lists provided by 121 Business Lists in accordance with the Schedule 'Single user Licence' means a licence to use the List on one occasion '12 month Multiple User Licence' means a licence to use the Information for a period of 12 months after the date of this Agreement 'Continuous User Licence' means a licence to use the Information for a period of five years after the date of this Agreement 'Licence' means the type of licence granted by 121 Business Lists to the Customer / List Owner 'List' means the information collated by 121 Business Lists from its database including company names, addresses, key members of staff, company size, activity details and any other information as provided to the Customer 'Information' the information contained in the Lists that may be provided in the form of paper lists, self-adhesive labels, CD Rom or electronic mail according to the requests of the Customer 2 LICENCE 2.1 121 Business Lists / List Owner has agreed to grant to the Customer a Licence (specified overleaf) to use the List supplied by 121 Business Lists at the List Price from the Commencement Date for the Customers own use only for the period of usage specified overleaf. 2.2 The use of the List and the Information contained therein will depend on the type of licence granted. The type of licence granted is specified overleaf. 3 USE OF INFORMATION 3.1 121 Business Lists confirms that: 3.1.1 Telephone and fax numbers included on the List have been screened against a Telephone Preference Service Registration file ("TPS") and Fax Preference Service Registration file ("FPS") 3.1.2 As a list broker we monitor that all our list suppliers carry out TPS and FPS screens regularly. 3.1.3 Telephone numbers registered against the TPS are marked with 'T', fax numbers registered against FPS are marked with 'F'. Fax numbers not registered against the FPS, but which may fall within the restrictions of the FPS is marked with 'W'. Further information on the TPS/FPS registers is available from the DMA Help line on 01932 414161. 3.2 The Customer acknowledges that: 3.2.1 It will not make unsolicited telemarketing calls to a telephone number registered under TPS; 3.2.2 It will not use for fax broadcasting a fax number registered under FPS; where the record on the list is marked W the organisation is probably not a Limited Company and may be either a partnership or sole trader 3.2.3 It will not send unsolicited faxes to any sole trader or partnership 3.2.4 For a 12 Month Multiple Use Licence or a Continuous Use Licence the List should be screened against the appropriate TPS or FPS register within 28 days of the search carried out by 121 Business Lists / List Owner if the Customer has not received expressed permission from the person they are calling/faxing that they would not object to receiving calls/faxes from the Customer in the future; 3.2.5 121 Business Lists / List Owner accepts no responsibility for the registration status of any telephone or fax number at the time of use by the Customer; 3.2.6 It will use the Information from the Lists for its own use in accordance with the British Code of Advertising Practice and that any use of the List in contravention of the provisions therein will result in the revocation of the Licence granted; 3.2.7 Charges for any updates are valid for a period only and not for continuous year on year update 4 LIST PRICE AND PAYMENT 4.1 The Customer shall pay 121 Business Lists the List Price for the List(s). 4.2 All invoices rendered by 121 Business Lists for the List Price shall become payable within 30 days and shall include VAT Pre-payment is required from all new clients before any order can be processed unless otherwise agreed. 4.3 121 Business Lists reserves the right to charge interest on any outstanding balance unpaid after 30 days at the rate of 4% per annum above the base rate of The Bank of England and an additional 8% for compensation as stated by the "State Payments Act of 1998" 5 OBLIGATIONS OF 121 BUSINESS LISTS During the period of this Agreement 121 Business Lists undertakes with the Customer: 5.1 To use all reasonable endeavours to ensure that all Lists supplied are researched using publicly available sources; 5.2 To use reasonable endeavours to notify the Customer of any errors or defects in manufacture of Lists and to specify where possible the manner of correction; 5.3 Upon receipt of an order by the Customer to provide the Information requested by the Customer from the database in the form of a List; 5.4 To provide a refund of pro-rata for each undeliverable item sent by post which was sent by the Customer to a name on the List which is returned to 121 Business Lists within thirty (30) days of the Commencement Date, and for each incorrect telephone number provided by 121 Business Lists which was contacted by the Customer which is reported to 121 Business Lists within thirty (30) days provided that 121 Business Lists reserves the right to inspect any undeliverable item returned to the Customer and call any reported incorrect telephone number where the Customer makes a claim for a refund. Proof must be provided by returning the undeliverable item to 121 Business Lists for further investigation. 5.5 Email addresses are not covered by our current data guarantees due to higher than normal decay rates, soft bounce ratio and the many variables regarding server security settings. 6 OBLIGATIONS OF CUSTOMER During the period of this Agreement the Customer undertakes with 121 Business Lists to meet the following obligations: 6.1 to notify 121 Business Lists if the Customer wishes to re-use the Information to enable 121 Business Lists to charge the re-use fee set out in the Schedule; 6.2 in the event the Customer wishes to update the List , to notify 121 Business Lists within the Licence period to provide an update and charge the fee for updates as set out in the Schedule; 6.3 to indemnify 121 Business Lists and keep 121 Business Lists fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim arising from the use by the Customer of any Information or Lists supplied; 6.4 To pay all invoices promptly. 6.5 If the Customer uses the list when it is not authorised to do so to pay 121 Business Lists penalty charges at the highest level for the use of such list. 7 CONFIDENTIAL INFORMATION 7.1 All Information, documents, and data disclosed in the Lists by 121 Business Lists to the Customer shall remain the property of the List Owner. The Customer shall use such information for the purpose declared by the Customer, and shall not disclose the above mentioned information or any part thereof to any third party whomsoever, without the prior consent of 121 Business Lists. 7.2 The provision of clause 7.1 above shall not apply to the whole or any part of the Information to the extent that it is already in the other's possession other than as a result of a breach of this clause or in the public domain. 7.3 The Customer hereby undertakes to 121 Business Lists to make all relevant employees agent’s sub-contractors aware of the confidentiality of the Information and to take all such steps as shall be necessary to ensure compliance by its employees, agents and sub contractors with this clause 7. 8 LIMITATION OF LIABILITY 8.1 121 Business Lists / List Owner makes no warranty or representation as to the accuracy or timeliness of the Information. 121 Business Lists specifically disclaims any implied warranty of merchantability or fitness for any particular purpose or use. 8.2 Subject to the proviso hereafter contained in this clause the sole exclusive remedy of the Customer for any damage or loss in any way connected with the Lists shall be the refund referred to in clause 5.4 above. 8.3 Subject to clause 8.2 above under no circumstances shall 121 Business Lists / List Owner be liable to the Customer or any third party for any indirect, special or consequential damages however caused including (but not limited to) damages for loss of goodwill, loss of profits, computer failure or malfunction or any and all other damages or losses unless 121 Business Lists has acted illegally or with intent to deceive or in wilful or reckless disregard of the accuracy of the List or has acted with gross negligence in connection with its obligations set out in their terms and 121 Business List’s entire liability (including any liability for the acts and omissions of its personnel) to the Customer in such case shall be limited to the amount paid by the Customer. 8.4 121 Business Lists are not responsible for any transfers/payments - both abroad or in the UK of bank charges. 9 INTELLECTUAL PROPERTY 9.1 121 Business Lists reserves the right to all Intellectual Property and this shall remain the property of 121 Business Lists at all times. 9.2 121 Business Lists does not claim any intellectual property over any individual item of information but the Lists provided are subject to copyright and remain the property of the List Owner. Any un-licensed use of the Lists will be in breach of the terms of this Agreement and shall also be a breach of copyright. 9.3 "Intellectual Property" for the purposes of this Agreement shall mean all copyright, data, design, know-how and other intellectual property of whatsoever nature which were developed or may be developed by 121 Business Lists as contained in the Lists and shall include without limitation all copyright in all data, formulae literature contained in computer disks CD rom, the Internet, associated web sites and any other written material relating to the Lists and any rights in computer software associated with such systems and processes. 10 TERMINATION 10.1 Notwithstanding anything contained herein this Agreement may be terminated: 10.1.1 By 121 Business Lists forthwith on giving notice in writing to the Customer if the Customer shall fail to pay any sum due under the terms of the Agreement (otherwise than of a consequence of any default on the part of 121 Business Lists) and such sum remains unpaid for 14 days after written notice from 121 Business Lists; or 10.1.2 By either party forthwith on giving notice in writing to the other if the other commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days of the receipt of a request in writing from the other party so to do, to remedy the breach (such request to contain a warning of such party's intention to terminate); or 10.1.3 By either party forthwith on giving notice in writing to the other if the other party shall be deemed insolvent within the meaning of Section 123 Of the Insolvency Act 1986 or have a receiver or administrative receiver appointed over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise then for the purpose of a bone fide scheme of solvent amalgamation or reconstruction) or a Court of competent jurisdiction shall make an order to that effect or a meeting is convened with its creditors and a proposal shall be made for a voluntary arrangement, composition, scheme or arrangement with its creditors or shall enter into any voluntary arrangement with its creditors or shall cease threaten to cease to carry on business; or 10.2 On the termination of this Agreement the Customer shall return to 121 Business Lists all documentation and all material including Lists which belongs to 121 Business Lists if so requested by 121 Business Lists shall destroy the same (in the case of data and programs stored on the Customers' premises by erasing them from the magnetic media on which they are stored) and certify in writing that they have been destroyed as instructed. 10.3 On the termination of this Agreement the Customer shall promptly pay to 121 Business Lists any monies outstanding on the List Price pursuant to the terms of this Agreement. 11 NOTICES Any notice required or authorised to be given by either party under this Agreement shall be given in writing in to the other at the address specified overleaf or such other address as may be supplied in writing and shall be effective: 11.1 If posted on the fourteenth day after posting; or 11.2 If delivered on the date of delivery; or 11.3 If sent by facsimile transmission on facsimile written acknowledgement thereof. 12 WAIVER OF REMEDIES No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party 13 ENTIRE AGREEMENT This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement after the Commencement Date shall be binding upon the parties unless it is in writing and is signed by a duly authorised representative of each of the parties. 14 APPLICATION OF TERMS TO SUBSEQUENT CONTRACT The Customer shall be deemed to have accepted these terms and conditions upon signing of this Agreement for all subsequent orders it makes. The terms will only be deemed to be varied with regard to the type of licence and price which applies to orders of subsequent lists. 15 PROPER LAW AND JURISDICTION This Agreement shall be governed by the laws of England in every particular and the parties to the Agreement submit to the jurisdiction of the English Courts. 121 Business Lists does not warrant the accuracy, completeness or timeliness of any of the data and/or programs (“Information”) available at this 121 Business Lists site. The Information is provided “as is” without warranty of any kind, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. In no event will 121 Business Lists or its affiliates be liable to any party for any direct, indirect, special, consequential or other damages for any use of or reliance upon the Information found at this web site, or on any other linked web site, including, without limitation, lost profits, business interruption, loss of programs or other data, even if 121 Business Lists is expressly advised of the possibility of such damages. You will be responsible for the content of any material you enter on the 121 Business Lists site. 121 Business Lists has no responsibility for the content of any messages or information posted by users, or for the content of information of third You may be able, through hypertext or other computer links to gain access to other sites on the Internet that are not part of the 121 Business Lists site. 121 Business Lists makes no representations, warranties or endorsements with respect to any web site that may be accessed from a 121 Business Lists site. When you access a non-121 Business Lists site, please understand that 121 Business Lists has no control over the content or information at that site. It is your responsibility to protect your system from such items as viruses, worms, Trojan horses and other items of a destructive nature. 121 Business Lists, the 121 Business Lists logo and the 121 Business Lists products referenced in a 121 Business Lists site are either trademarks, service marks, registered trademarks, copyrights or other intellectual property of 121 Business Lists or its affiliates (“121 Business Lists IP”). Other products and company names mentioned in a 121 Business Lists site may be the intellectual property of their respective owners. You may not use any 121 Business Lists IP without the consent of 121 Business Lists. You may not use, frame or utilize framing techniques to enclose any 121 Business Lists IP, including the images found at this 121 Business Lists site, the content of any text or the layout/design of any page or form contained on a page without 121 Business Lists’s consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any 121 Business Lists IP or the intellectual property of any third party. You may not robotically or otherwise automatically harvest information from a 121 Business Lists site. 121 Business Lists has the right to amend these Terms of Use at any time and without notice to you. Such amendments shall be effective immediately upon posting. You agree to review the 121 Business Lists site periodically to be aware of any such amendments. Your continued use of a 121 Business Lists site after such amendments have been made shall constitute acceptance of the amendments. No part of the 121 Business Lists site may be reproduced, modified, or distributed in any form or manner without the prior written permission of 121 Business Lists. You may access 121 Business Lists’s Privacy Policy from the 121 Business Lists site. |
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