Data8 - Data Services Agreement - Version 1.1
1.1 The definitions and rules of interpretation in this Clause apply in these
terms and conditions.
Applicable Regulations: means the Consumer Credit Act 1974, the DPA, the DMA
Guidelines, the Representation of the Peoples (England and Wales) Regulations
2001, the Money Laundering Regulations 2003, the Financial Services and Markets
Act 2000 (Money Laundering Regulations 2001), regulations made by the Steering
Committee on Reciprocity and any other applicable law, regulation or code.
Contract: means the legally binding contract comprising the terms and documents
set out on the Online Order page available at www.data-8.co.uk as accepted by
Customer when it submits and Online Order together with Data8's acceptance of
such contract pursuant to the provisions of Clause 4.
Customer: the person, firm or company who uses the Services (whether via the
Web-site or otherwise) that is so named in the Online Order or online
registration process and anyone reasonably appearing to Data8 to be acting with
that person's authority or permission.
Customer Account: means the account set up by Data8 for the Customer to enable
the Customer to access the Web-site and Services and to make payments to Data8
for the provision of the Services.
Customer Data: means, regardless of its format, any data or information input
into the information fields via the Web-site or otherwise delivered to Data8 by
the Customer in relation to the Services.
Cleansed Data: means, regardless of its format, any data or information output
delivered to the Customer by Data8 as a result of the provision of the
Cleansed Data Use Conditions: the conditions imposed upon the use of the
Cleansed Data or the Services generally as are set out in Schedule 1.
Customer Data Audit: means an initial element of the Services whereby the
Customer can provide Data8 with Customer Data in order to obtain an evaluated
data quality audit of such data and a sample of the potential output of the
Services in relation to such data.
DPA: means the Data Protection Act 1998 and associated sub-ordinate legislation,
regulations and/or orders as may be varied or amended from time to time.
Fees: the fees and charges payable to Data8 by the Customer in relation to the
Services, as described in the Services Tariff or more specifically in any
Online Order Confirmation.
Intellectual Property Rights: patents, rights to inventions, copyright and
related rights, trade marks, trade names, domain names, rights in get-up,
rights in goodwill or to sue for passing off, unfair competition rights, rights
in designs, rights in computer software, database rights, topography 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.
Online Order: means a purchase order for the Services placed by the Customer via
the Web-site or such other order specifically agreed in writing by Data8.
Online Order Confirmation: means Data8's confirmatory response to the Customer
in relation the Online Order in which Data8 confirms the Services to be
provided to the Customer.
Services: the online processing services including the Customer Data Audit as
described by Data8 via the Web-site or more specifically in any Services
Specification or Online Order Confirmation and as are to be provided by Data8
under the Contract.
Services Specification: means the set-up screen on the Web-site and/or Online
Order that the Customer uses to determine the processing requirements and
parameters for each Service requested in relation to the Customer Data as
agreed by Data8.
Services Tariff: means the breakdown of the Fees components in respect of each
of the Service elements supplied to the Customer as such tariff is made
available by Data8 on the Web-Site and as may be amended by Data8 from time to
Data8: means Data8 Limited (a company incorporated in England and Wales with
company number 04773536) whose registered office is at Talwrn Lodge, Talwrn
Road, Wrexham, LL14 4ES.
VAT: value added tax chargeable under English law for the time being and any
similar additional tax.
Web-site: means Data8's website made available at www.data-8.co.uk.
1.2 Headings do not affect the interpretation of these terms and conditions.
2. APPLICATION OF TERMS AND CONDITIONS
2.1 These terms and conditions (including the Schedules and third party terms
linked to in Clause 11) shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred
to in, the Customer's Online Order, own purchase order, confirmation of order,
or services specification, or implied by law, trade custom, practice or course
2.2 Any variation of the Contract or to the Services shall either be made via
the Web-site and accepted by the Customer in the purchase of any subsequent
services or made in writing and signed by or on behalf of the parties.
3. CUSTOMER DATA QUALITY EVALUATION AUDIT
3.1 Upon Customer providing sample Customer Data in the required format via the
Web-site, Data8 shall perform the Customer Data Audit in accordance with the
description of this service set out on the Web-site.
3.2 Once Data8 has completed the Customer Data Audit it shall return an online
report to the Customer for the Customer to further evaluate the Services
available from Data8 in relation to the Customer Data. Data8 grants the
Customer a limited, non-exclusive, non-transferable licence to use such report
and the content thereof for the purposes of evaluating the Services only.
3.3 Unless otherwise agreed between the parties, the Customer Data Audit shall
be provided to the Customer by Data8 without charge.
4. REGISTRATION AND EFFECT OF AN ONLINE ORDER
4.1 Without prejudice to the other Clauses in this Agreement, Customer agrees
(a) provide true, accurate, current and complete information of its details when
completing the online registration process and Online Order ("User
(b) notify Data8 immediately of any changes to the User Information.
4.2 Customer may be required to select a username and password during the
registration process on the Web-site and the Customer shall be responsible for
maintaining the confidentiality of the username and password and will be fully
responsible for all activities which occur under them including, but not
limited to, allowing third party access to the Services. Customer shall notify
Data8 immediately of any unauthorised use of its username and password or any
breach of security of which the Customer becomes aware.
4.3 Data8 reserves the right to suspend, disconnect or terminate the Customer
Account (including any username and password) if any User Information is
untrue, inaccurate, out-of-date of incomplete or if it becomes aware of any
breach by the Customer of the terms of the Contract.
4.4 The Customer may offer to purchase Services via the Web-site by submitting
an Online Order.
4.5 The Online Order constitutes an offer by the Customer to purchase the
Services specified in it upon these terms and conditions (including for the
avoidance of doubt the third party terms linked to in Clause 11 (where
applicable)); accordingly, the online execution and return of the Online Order
Confirmation by Data8, or Data8's commencement or execution of work pursuant to
the Online Order, shall establish a contract for the supply and purchase of
those Services upon the terms and conditions of the Contract.
4.6 By submitting an Online Order Customer acknowledges that the Services of
Data8 have been designed and refined in relation to consumer data and have not
been specifically developed or offered via the Web-site in relation to business
5. PROVISION OF THE SERVICES
5.1 Any Services ordered by the Customer shall be provided by Data8 in
accordance with the then current Services Tariff and paid for by the Customer
in accordance with the provisions of Clause 9 and/or the Online Order
5.2 Data8 grants to the Customer a non-exclusive, non-transferable limited
licence to access the Web-site and associated Data8 services for the Customer's
own business purposes only and upon the terms of the Contract.
5.3 Following the provision of the Customer Data to Data8 in accordance with the
provisions of Clause 7.2, Data8 shall perform the Services in accordance with
the Contract and any agreed Services Specification. The Customer acknowledges
that not all of the Customer Data will be matched or accurately matched using
5.4 Once the Cleansed Data has been delivered to the Customer by Data8, the
Customer shall be responsible for all such Cleansed Data and Data8 shall have
no further responsibly thereto. The Customer shall check such data for
compliance with the terms of the Contract within 2 working days and immediately
communicate in writing any problems in relation to such data to Data8.
5.5 Any advice, recommendation or representation given by Data8 to the Customer
or its employees or agents which is not confirmed in writing by an authorised
representative of Data8 is followed or acted upon at the Customer's own risk
and Data8 shall not be liable for any such advice, recommendation or
representation provided that nothing in this Clause shall operate to limit or
exclude any liability for fraud or fraudulent misrepresentation.
6. DATA8'S OBLIGATIONS
6.1 Data8 warrants to the Customer that the Services will be provided using
reasonable skill and care.
6.2 Other than is set out in the Contract, the Customer Data Audit and other
Services shall be provided by Data8 "as-is" and "as available" without warranty
or condition of any kind. Data8 does not warrant that the Services will be
uninterrupted or error free or that Data8 will correct any defects in the
6.3 Data8 shall use reasonable endeavours to complete the Services and provide
the Cleansed Data to the Customer, in accordance in all material respects with
the Online Order Confirmation and/or any agreed Services Specification. In the
event of any conflict between the Online Order or the Services Specification
and the Online Order Confirmation the terms of Online Order Confirmation shall
6.4 Data8 shall use reasonable endeavours to meet the performance dates and
timelines specified in the Online Order Confirmation, but any such dates shall
be estimates only and time shall not be of the essence of the Contract.
6.5 In the event of interaction between Data8 and the Customer other than via
the Web-site, Data8 shall appoint a Data8 project manager who shall have
authority to contractually bind Data8 on all matters relating to the Services.
Data8 shall use reasonable endeavours to ensure that the same person acts as
Data8's project manager throughout the provision of the Services, but may
replace him from time to time where reasonably necessary in the interests of
7. CUSTOMER'S OBLIGATIONS
7.1 The Customer shall ensure that it complies with the terms of the Contract,
the Cleansed Data Use Conditions and/or any reasonable instructions given by
Data8 in relation to the Services at all times. Further Customer warrants that
it has obtained and shall maintain all necessary relevant licences and consents
that may be required to use the Services, Customer Data or Cleansed Data.
7.2 The Customer shall at its own expense supply Data8 via the Web-site with all
necessary Customer Data in the required format as is required in relation to
the Services and within sufficient time to enable Data8 to provide the Services
in accordance with the agreed Services Specification. The Customer shall ensure
the accuracy of all such Customer Data and Data8 shall not be held responsible
or liable whether in accordance with the Contract or otherwise in the event the
Cleansed Data or Services are inaccurate as result of any failure, act or
omission by the Customer in accordance with this Clause 7.2.
7.3 The Customer shall retain duplicate copies of all Customer Data sent to
Data8 and Data8 shall not be liable or responsible for any damage, corruption
or loss however caused.
7.4 The Customer agrees that flagging of records for "deceased or gone away"
purposes are charged at a higher rate than deceased or gone away for
"suppressions". The Customer agrees to declare to Data8 within 21 days if flags
are attached to its database and agrees to accept an invoice from Data8 for the
differential charge. If it is found that deceased or gone away flags have been
attached and not declared to Data8, the Customer will be liable to pay the
costs of any independent investigations (if any) and repay all undisclosed
royalty costs plus interest charges.
7.5 The Customer shall not:
(a) attempt to duplicate, modify or distribute any portion of the Web-site or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise
reduce to human-perceivable form any of the software relating to the Web-site
or technical elements of the Services, except as may be allowed by any
applicable law which is incapable of exclusion by agreement between the
(c) use, transfer, sell, lease, charge or in any way make available the Web-site
or Services to provide services to third parties; or
(d) transfer, temporarily or permanently, any of its rights under the Contract,
(e) attempt to obtain, or assist others in obtaining, access to the Web-site or
Services, other than as permitted by the Contract or expressly by Data8 in
writing from time to time.
7.6 The Customer agrees that, subject to it being given reasonable prior written
notice, it shall permit Data8 or its licensors and its authorised independent
auditors to have reasonable access during the Customer's normal business hours
to the Customer's relevant premises and relevant operations for the sole
purpose of conducting an audit to ensure that the Customer is complying with
its obligations under the Contract. The Customer shall provide all reasonable
assistance in this regard.
7.7 In the event of any breach, act or omission by the Customer any of its
obligations under the Contract it shall indemnify Data8 for any loss and damage
which Data8 suffers as a result of the Customer's breach, act or omission
including in relation to any loss, damage or claims from any third party
supplier or owner of data (including the Customer Data) or third party terms
passed on to the Customer by virtue of the Contract.
7.8 The Customer shall not, without the prior written consent of Data8, at any
time from the date of the Contract to the expiry of six months after the
completion of the most recent Services ordered by the Customer, solicit or
entice away from Data8 or employ or attempt to employ any person who is, or has
been, engaged as an employee or sub-contractor of Data8. Any consent given by
Data8 in accordance with this Clause shall be subject to the Customer paying to
Data8 a sum equivalent to 20% of the then current annual remuneration of
Data8's employee or sub-contractor or, if higher, 20% of the annual
remuneration to be paid by the Customer to such employee or sub-contractor.
8. CHANGES IN RELATION TO THE SERVICES
8.1 Data8 may at any time without notifying the Customer make any changes to the
Services which are:
(a) necessary to comply with any applicable law, statutory or regulatory
(b) due to circumstances beyond its reasonable control
Data8 shall use reasonable endeavours to post information relating to such
changes on the Web-site.
9. FEES AND PAYMENT
9.1 The Fees and any additional sums which are agreed between Data8 and the
Customer for the provision of the Services shall be payable by the Customer in
accordance with this Clause 9 and the terms of the Online Order Confirmation.
9.2 At its sole discretion, Data8 may either:
(a) require the Customer to pay the applicable Fees by credit card prior to
delivery by Data8 of the Services; or
(b) invoice the Customer following the delivery of Cleansed Data or relevant
Services, or at other times agreed in writing with the Customer
the applicable Fees will be either pre-charged or invoiced by Data8 at the then
prevailing Services Tariff for the requested Services (or as otherwise agreed
by Data8 in an Online Order Confirmation). Time for payment shall be of the
essence of the Contract.
9.3 In the event Data8 invoices the Customer in accordance with Clause 9.2(b),
the Customer shall pay the Fees in full, and in cleared funds, within 14 days
of the date of invoice. Each invoice shall be paid to Data8 (without deduction
9.4 All stated Fees and Services Tariff exclude VAT which Data8 shall add to its
invoices or online payment transactions at the appropriate rate.
9.5 Without prejudice to any other right or remedy that Data8 may have, if the
Customer fails to pay Data8 on the due date Data8 may:
(a) charge interest on such sum from the due date for payment at the annual rate
of 4% above the base lending rate from time to time of Barclays Bank Plc
accruing on a daily basis and being compounded quarterly until payment is made,
whether before or after any judgment. Data8 may claim interest under the Late
Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services or future services until payment has been made in full.
9.6 All payments payable to Data8 under the Contract shall become due
immediately on termination of the Contract, despite any other provision. This
Clause is without prejudice to any right to claim for interest under the law,
or any such right under the Contract.
9.7 Data8 may, without prejudice to any other rights it may have, set off any
liability of the Customer to Data8 against any liability of Data8 to the
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Nothing in the Contract shall act to transfer or assign to the Customer
rights of title or ownership in the Intellectual Property Rights or database
rights in the Web-site and the software and technical solution used by Data8 in
the provision of the Services ("Solution"), or any data or data sources or
reports used by Data8 for the provision of the Services ("Solution Data") and
all such rights in the Solution and Solution Data are and shall remain the
exclusive property of Data8 and/or the third party owner of such rights.
10.2 The Customer shall immediately notify Data8 of any infringement or
suspected infringement by any third party of the Intellectual Property Rights
or database rights in the Solution, Solution Data and/or Services of which the
Customer becomes aware and shall assist Data8 to take such action as Data8
deems appropriate to protect such rights at Data8's request and expense.
10.3 As between the parties, all Intellectual Property Rights and all other
rights in the Customer Data shall be owned by the Customer. The Customer hereby
licenses all such rights to Data8 free of charge and on a non-exclusive basis
to such extent as is necessary to enable Data8 provide the Services and comply
with the terms of the Contract or as is envisaged by the parties.
10.4 The Customer warrants that any Customer Data and Cleansed Data and its use
by Data8 for the purpose of providing the Services will not infringe any rights
of confidentiality or any Intellectual Property Rights of any third party and
the Customer shall indemnify and hold harmless Data8 against any loss, damages,
costs, expenses or other claims arising from any such infringement.
10.5 Any disclaimer, copyright or other proprietary notices in the Cleansed Data
any related reports, or any online reports in relation to the Evaluation Report
Services shall not be deleted or altered by the Customer.
11. THIRD PARTY SUPPLIERS TO DATA8
11.1 Services supplied to the Customer during the term of the Contract and the
Customer's use of the Services and the Cleansed Data are subject to, the terms
and conditions of the Contract and, the relevant end-user terms imposed upon
Data8 by its third party suppliers some of which are set out at the links in
this Clause 11.1. Where the Cleansed Data contains data derived from data
licensed to Data8 by a third party supplier to Data8 then the Customer shall
comply with all such applicable terms and conditions, some of which are set out
at the links below:
(a) LINK 1 - Equifax PLC;
(b) LINK 2 - Acxiom Limited; and
(c) LINK 3 - Royal Mail
(d) LINK 4 - BT
and where there is conflict between such terms and conditions and the other
terms and conditions in the Contract, save for Clauses 13 and 15, those third
party terms and conditions shall prevail.
11.2 The Customer acknowledges and understands that the Services involve the use
of a variety of Data8 and third party data which is often based upon and
comprises data provided to Data8 by third parties or is otherwise publicly
available and as such Data8 is unable to control or verify the accuracy and/or
completeness of such data.
11.3 The Customer acknowledges that the warranty and assurances that Data8
provides to the Customer in relation to those elements of the Services sourced
by Data8 from third party providers and suppliers is limited to the level of
warranty and assurances provided to Data8 and the Customer by such third party
suppliers or service providers which may provide their own additional
warranties and assurances or impose their own conditions some of which are set
out at the links in Clause 11.1. Data8 offers no warranties of any kind
whatsoever for the accuracy of data, products and services licensed from, or
provided to Data8, by third parties.
11.4 Prior to, or at any time during the provision of the Services, upon the
reasonable request of Data8, the Customer shall execute any other agreement,
condition or otherwise which is considered necessary by the third party
providers of services or data to Data8 or which Data8 in turn are obligated to
impose upon the Customer in relation to the provision of the Services. In the
event the Customer is not willing to execute any such agreement or condition,
provided that no Fees are outstanding to Data8, the Customer may terminate the
Contract upon 14 days notice in writing to Data8.
12.1 Data8 shall keep in strict confidence all Customer Data and Cleansed Data.
12.2 The Customer shall keep in strict confidence all business information,
technical or commercial know-how, specifications, processes or initiatives
which are of a confidential nature and have been disclosed to the Customer by
Data8 or its agents, and any other confidential information concerning Data8's
business or its products which the Customer may obtain. The Customer shall
restrict disclosure of such confidential information to such of its employees,
agents or sub-contractors as need to know it.
12.3 The provisions of this Clause 12 shall not apply to any information,
documents or other materials which are public knowledge at the time when they
are so provided by either party, and shall cease to apply if at any future time
they become public knowledge through no fault of the other party or are already
in the possession of the relevant party in addition they shall survive
termination of the Contract, however arising.
13. LIMITATION OF LIABILITY
13.1 The following provisions set out the entire financial liability of Data8
(including any liability for the acts or omissions of its employees, agents and
sub-contractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Cleansed Data or any part
of them; and
(c) any representation, statement or tortious act or omission (including
negligence) arising under or in connection with the Contract.
13.2 All warranties, conditions and other terms implied by statute or common law
are, to the fullest extent permitted by law, excluded from the Contract.
13.3 Nothing in these Clauses excludes the liability of Data8:
(a) for death or personal injury caused by Data8's negligence; or
(b) for fraud or fraudulent misrepresentation.
13.4 Subject to Clause 13.2 and Clause 13.3:
(a) Data8 shall not be liable for any loss of profits, loss of business,
depletion of goodwill or similar losses or pure economic loss or for any
special, indirect or consequential loss costs, damages, charges or expenses
(b) Data8's total liability in contract, tort (including negligence or breach of
statutory duty), misrepresentation, restitution or otherwise, arising in
connection with the performance or contemplated performance of the Contract
shall be limited to £2,000 OR the price paid for the Services by the Customer
during the past 12 months whichever is the greater.
13.5 Subject to Clause 13.2 and Clause 13.3, if the Customer has any claims in
relation to any breach of breach by Data8 of the Contract such claim must be
made in writing to Data8 within 30 days of the event which gives rise to the
claim. Data8 may at its option resupply the Service(s) free of charge or credit
the amount paid or payable by the Customer in respect of the Service in full
and final settlement of any and all liability to the Customer if Data8
considers in its sole opinion that the Customer's claim has merit.
13.6 Subject to Clause 13.2 and Clause 13.3, Data8 shall have no liability to
the Customer for any loss, damage, costs, expenses or other claims for
compensation arising from any Customer Data or Cleansed Data or instructions
supplied by the Customer which are incomplete, incorrect, inaccurate,
illegible, out of sequence or in the wrong form, or arising from their late
arrival or non-arrival, or any other fault of the Customer.
13.7 Subject to Clause 13.2 and Clause 13.3, Data8 shall have no liability to
the Customer for any loss, damage, costs, expenses or other claims for
compensation arising from any data which are incomplete, incorrect, inaccurate,
illegible, out of sequence or in the wrong form when such data is sourced by
Data8 from third parties and used in the provision of the Services.
14.1 Either party may terminate the Contract at any time upon not less than 30
days notice to the other in writing.
14.2 Without prejudice to any other rights or remedies to which the parties may
be entitled, Data8 may terminate the Contract or any element of the Services
without liability to the Customer immediately on written notice to the Customer
if for any reason the agreement Data8 has with any third party provider or
supplier of data services to Data8 is terminated or suspended and Data8 is
unable to continue the performance of the Services in accordance with the terms
of the Contract. In this event Data8 shall, unless the Customer has Fees
outstanding to Data8 in which case Data8 may offset any such monies held
against such Fees (if any), make a refund to the Customer of the amount of any
Fees held by Data8 which have been pre-paid to the Customer Account in relation
to the Services.
14.3 Without prejudice to any other rights or remedies to which the parties may
be entitled, either party may terminate the Contract without liability to the
(a) the other party commits a material breach of the Contract and (if such a
breach is remediable) fails to remedy that breach within 30 days of that party
being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other
party, or circumstances arise which entitle a court of competent jurisdiction
to make a winding-up order of the other party; or
(c) an order is made for the appointment of an administrator to manage the
affairs, business and property of the other party, or documents are filed with
a court of competent jurisdiction for the appointment of an administrator of
the other party, or notice of intention to appoint an administrator is given by
the other party or its directors or by a qualifying floating charge holder (as
defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party's assets or undertaking,
or if circumstances arise which entitle a court of competent jurisdiction or a
creditor to appoint a receiver or manager of the other party, or if any other
person takes possession of or sells the other party's assets; or
(e) the other party makes any arrangement or composition with its creditors, or
makes an application to a court of competent jurisdiction for the protection of
its creditors in any way, or becomes bankrupt; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any
jurisdiction in consequence of debt.
14.4 Termination of the Contract, however arising, shall not affect or prejudice
the accrued rights of the parties as at termination or the continuation of any
provision expressly stated to survive, or implicitly surviving, termination.
The following Clauses shall survive the termination of the Contract for
whatever reason: Clauses 1, 2, 5.3, 5.4, 7, 9.5, 10, 11, 12, 13, 15, 18, 19, 22
15. DATA PROTECTION
15.1 Each party warrants that it shall at all times comply with and be bound by
the provisions of the Applicable Regulations and each confirms that it has (and
that it shall maintain) adequate notifications under the DPA in relation to the
use and provision of the Services (as applicable).
15.2 Data8 will hold any personal data contained within the Customer Data only
on behalf of the Customer and to the Customer's order and at all times in
accordance with the 7th principle of the DPA.
15.3 Each of Data8 and Customer will indemnify the other in relation to any loss
and damage suffered as a result of a breach by the other of Clause 15.1 or any
provisions of the Applicable Regulations.
16. FORCE MAJEURE
Data8 shall have no liability to the Customer under the Contract if it is
prevented from, or delayed in, performing its obligations under the Contract or
from carrying on its business by acts, events, omissions or accidents beyond
its reasonable control, including, without limitation, strikes, lock-outs or
other industrial disputes (whether involving the workforce of Data8 or any
other party), any inability to access the Internet (whether as a result of a
failure by the relevant Internet service provider to supply access or
otherwise), failure of a utility service or transport network, act of God, war,
riot, civil commotion, malicious damage, compliance with any law or
governmental order, rule, regulation or direction, accident, breakdown of plant
or machinery, fire, flood, storm or default of suppliers or sub-contractors.
17.1 A waiver of any right under the Contract is only effective if it is in
writing and it applies only to the party to whom the waiver is addressed and
the circumstances for which it is given. Unless specifically provided
otherwise, rights arising under the Contract are cumulative and do not exclude
rights provided by law.
18.1 If any provision of the Contract is found by any court or administrative
body of competent jurisdiction to be invalid, unenforceable or illegal, the
other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid,
enforceable or legal if some part of it were deleted, the provision shall apply
with whatever modification is necessary to give effect to the commercial
intention of the parties.
19. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that in entering into the Contract
it does not rely on any undertaking, promise, assurance, statement,
representation, warranty or understanding (whether in writing or not) of any
person (whether party to this agreement or not) relating to the subject matter
of this agreement other than as expressly set out in the Contract.
20. ASSIGNMENT AND SUBCONTRACTING
20.1 The Customer shall not, without the prior written consent of Data8, assign,
transfer, charge, sub-contract or deal in any other manner with all or any of
its rights or obligations under the Contract.
20.2 Data8 may at any time assign, transfer, charge, sub-contract or deal in any
other manner with all or any of its rights or obligations under the Contract.
21. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or shall operate to create a partnership
between the parties, or to authorise either party to act as agent for the
other, and neither party shall have authority to act in the name or on behalf
of or otherwise to bind the other in any way (including but not limited to the
making of any representation or warranty, the assumption of any obligation or
liability and the exercise of any right or power).
22. THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and (where applicable)
their successors and permitted assigns, and save where it is specifically
provided for in any third party terms referenced or link to in Clause 11, is
not intended to benefit, or be enforceable by, anyone else.
Any notice under the Contract shall be in writing and shall be delivered by hand
or sent by pre-paid first-class post or recorded delivery post to the other
party at its address as set out in the Contract, or such other address as may
have been notified by that party for such purposes, or sent by fax to the other
party's fax number as set out in the Contract. A notice delivered by hand shall
be deemed to have been received when delivered (or if delivery is not during
business hours, at 9.00 am on the first business day following delivery). A
correctly addressed notice sent by pre-paid first-class post or recorded
delivery post shall be deemed to have been received at the time at which it
would have been delivered in the normal course of post. A notice sent by fax
shall be deemed to have been received at the time of transmission (as shown by
the timed printout obtained by the sender).
24. GOVERNING LAW AND JURISDICTION
24.1 The Contract and any disputes or claims arising out of or in connection
with its subject matter are governed by and construed in accordance with the
law of England.
24.2 The parties irrevocably agree that the courts of England have exclusive
jurisdiction to settle any dispute or claim that arises out of or in connection
with the Contract.
Schedule 1 - Cleansed Data Use Conditions
1. In using any Cleansed Data the Customer shall comply at all times with the
then current version of the DMA Code of Practice published by The Direct
Marketing Association (UK) Limited, whether or not it is a member of that
Association as if it were a member.
2. Save where Data8 has directly provided such a screening service to the
Customer, in the instances where any Cleansed Data contains telephone or fax
number information or other (information that is subject to suppression
obligations) and such information will be used for sales and marketing
purposes, it is the responsibility of the Customer to ensure that any such
numbers or information used are screened against the relevant preference
service lists and any other applicable suppression databases.
3. The Customer shall not use the Services and Cleansed Data in order to provide
any form of credit referencing, debt collection, identity authentication or
fraud prevention or other similar purpose on behalf of any third party.
4. The following organisations, and types of organisation, are prohibited from
using, or registering to use those elements of the Services which are provided
from files and information made available to Data8 by the Royal Mail "National
Change of Address" (NCOA) service:
- HM Customs & Excise;
- Inland Revenue;
- Employment Service;
- Department for Work and Pensions;
- Home Office;
- Child Support Agency;
- A Local Authority (Housing, Council Tax, Student Grants etc);
- NCIS (National Criminal Intelligence Service);
- Ministry of Defence;
- A debt collection agency;
- Fraud Investigators;
- National Health Service.
Accordingly, the Data8 may not use or register to use or resell the Royal Mail
"National Change of Address" service if it is sought by any of the above
organisations or types of organisation. In submitting an Online Order the
Customer warrants that it is not such an organisation.
5. The Customer shall not resupply any Cleansed Data to a third party (including
for the avoidance of doubt within its own group of companies or affiliates)
without first obtaining Data8's written consent.
6. The Customer agrees the files sent to Data8 for deceased and gone away
suppressions will be used for suppressing direct mail and will not be used for
other purposes, such as credit screening or fraud prevention. In addition the
deceased records that have been suppressed will not be used to directly target
households that have suffered bereavement. The Customer undertakes that such
records shall solely be used as a direct mail suppression product and under no
circumstances will any deceased suppressions supplied in Cleansed Data be used
to flag any of the Customer's database.
7. If the Cleansed Data contains flags for 'goneaways' derived from the REaD
Group PLC goneaway files or 'deceased' persons derived from the Bereavement
Register, the Customer agrees to ensure that the end user of the data ensures
that these flags are not retained on databases unless the permission of REaD
Group PLC has been obtained.
8. If the Cleansed Data contains flags for 'deceased' persons derived from the
Mortascreen files provided to Data8 by Millennium ADMP Plc the Customer agrees
to ensure that the end user of the data ensures that permanent deletions or
suppressions to databases are not made unless the permission of Millennium ADMP
Plc has been obtained.
3rd Party terms for inclusion at the relevant Hyperlinks 1, 2 3, and 4:
LINK 1 - END USER AGREEMENT - EQUIFAX DISCONNECT
In relation to any elements of the Services that are provided by Data8 in
relation to services Data8 has subcontracted to Equifax PLC or where Data8 uses
data, information or files from Equifax PLC, the Customer ("End-User" for the
purposes of these third party terms) agrees that the following terms form part
of the Contract and that it agrees to the following with Data8 ("Re-Supplier"
for the purposes of these third party terms):
1. Definitions and interpretation
1.1 "Applicable Regulations" means the Consumer Credit Act 1974, the Data
Protection Act 1998, the DMA Guidelines, the Representation of the Peoples
(England and Wales) Regulations 2001, the Money Laundering Regulations 2003,
the Financial Services and Markets Act 2000 (Money Laundering Regulations
2001), regulations made by the Steering Committee on Reciprocity and any other
applicable law, regulation or code;.
1.2 "disConnect Suppressions" the Suppressions comprising:
- A 6 year history of Equifax goneaways
- Equifax Deceased names dating from April 2003
- The current Equifax Complaints file provided by Re-Supplier to the End User in
the course of providing the Services;
1.3 "Equifax" means Equifax plc, a company incorporated in England and Wales
with registered number 2425920, whose registered office is Capital House, 25
Chapel Street, London NW1 5DS;
1.4 "Services" means the services of providing the disconnect Suppressions or
flagging of records by processing input data against a suppression database
branded as 'disConnect', including monthly updates of each component
2. The End User shall not use any of the Services or any disConnect Suppressions
or information derived from any disConnect Suppressions for any purpose other
than for the suppression or flagging of records for a direct mail application
or campaign for its own purposes and, in particular, it is a condition of this
Agreement that the End User shall not conduct or participate in any business
involving the re-supply to third parties of the Services, disConnect
Suppressions or any other information derived from the disConnect Suppressions.
3 The End User shall not use the disConnect Suppressions to suppress and/or flag
data in databases or lists other than by submitting such databases and lists to
the Re-Supplier for processing using the Services.
4. The End User will comply with all Applicable Regulations (including
maintaining all applicable licences and registrations and having in place all
necessary consents for processing and/or using any customer data).
5. The End User shall comply at all times with the then current version of the
DMA Code of Practice published by The Direct Marketing Association (UK)
Limited, whether or not it is a member of that Association as if it were a
6. If the End User has any right to make a claim against Equifax in respect of
the Services or any disConnect Suppressions (whether in contract, negligence or
any other tort, under statute or otherwise at all), Equifax's liability to the
End User shall be limited in accordance with this Agreement. Equifax is
entitled to enforce this provision against the End User in accordance with the
Contracts (Rights of Third Parties) Act 1999.
7. Equifax is the source of the disConnect Suppressions. As a condition of
Equifax allowing the Re-Supplier to provide the disConnect Suppressions to End
User, End User agrees to the following terms and conditions:
7.1 Most of the disConnect Suppressions is provided to Equifax by third parties
and as such Equifax does not control the disConnect Suppressions' accuracy or
completeness. Due to the volume and nature of the information on Equifax's
databases it is impracticable for Equifax to verify such information.
Accordingly, Equifax shall only be liable to End User for any loss or damage
caused by its negligence or wilful default and Equifax shall not in any other
circumstances be liable for any inaccuracies, faults, or omissions in the
7.2 The End User shall not rely upon any disConnect Suppressions as the only
factor or source of information in making any decision. Further advice and
information from appropriate experts and professionals should be obtained
before making any decision.
7.3 Equifax shall not in any circumstances (whether for breach of contract,
negligence or any other tort, under statute or otherwise at all) be liable for
any indirect or consequential loss or damage at all, or any loss of business,
data, capital, profit, reputation or goodwill.
7.4 Nothing in these terms shall limit or exclude Equifax's liability for death
or personal injury arising from its negligence.
7.5 Equifax's entire liability in respect of all causes of action arising by
reason of or in connection with these terms (whether for breach of contract,
negligence, special losses or any other tort, under statute or otherwise at
all) shall be limited to the amount paid by End User to the Re-Supplier for the
reConnect Service during the 12 months preceding the event giving rise to the
claim (excluding VAT); or one thousand pounds (£1,000), (whichever is lesser).
7.6 Subject always to the provisions and limits of liability set out in Clause
7.5 above, Equifax shall indemnify End User against any damages (including
reasonable costs) that may be awarded against it in respect of any use of the
disConnect Suppressions in accordance with this Agreement that infringes any
Intellectual Property Right in the United Kingdom, provided that it: (a)
promptly notifies Equifax of any relevant claim; (b) forthwith gives Equifax
the sole conduct of the defence and settlement of any such claim and at no time
admits liability without Equifax' prior written consent; and (c) act in
accordance with Equifax' reasonable instructions and give all such assistance
as Equifax may reasonably require to defend or settle such claim.
7.7 If End User wishes to make a claim against Equifax in relation to the
disConnect Suppressions, it must give Equifax written notice of the claim
within 3 months of becoming aware of the circumstances giving rise to the claim
or, if earlier, 3 months from the time it ought reasonably to have become aware
of such circumstances. If it fails to do so, Equifax shall not be liable for
LINK 2 - END USER AGREEMENT - ACXIOM PURITY
In relation to any elements of the Services that are provided by Data8 in
relation to services Data8 has subcontracted to Acxiom Limited or where Data8
uses data, information or files from Acxiom Limited, Data8 is required to
ensure that Customer complies with Acxiom's terms and conditions as if it were
a party thereto and therefore Customer hereby agrees to comply with the
following terms and conditions and Customer (or "Client" for the purposes of
these third party terms) agrees that the following terms form part of the
Contract and that it agrees to the following with Data8 and/or Acxiom ("Acxiom"
for the purposes of these third party terms):
the "Act" means the Data Protection Act 1998, as may be amended from time to
"Acxiom" means Acxiom Limited with a registered office at Counting House, 53
Tooley Street, London SE1 2QN.
"Acxiom Purity" means a data file of names and addresses of individuals who have
been classed as goneaways.
"Client" means the person, company or other legal entity placing an order with
Acxiom as set out in the Order Confirmation.
"Deliverables" means the supply of Acxiom Purity as ordered by the Client and
set out in the Order Confirmation or the supply of a Suppression File after the
provision of the Services to the Client.
"Effective Date" is the earlier of the date set out on the Order Confirmation or
the date the Order Confirmation is signed by the Client.
"End User" has the meaning set forth in clause 21.
Every reference to "includes" also means includes (without limitation).
"Order Confirmation" means the order confirmation or order form issued by Acxiom
and accepted by the Client setting out, without limitation, the details of the
Deliverables to be supplied by Acxiom and the fees payable by the Client.
"Services" means the creation of a Suppression File by Acxiom as ordered by the
Client and set out in the Order Confirmation.
"Suppression File" means the creation of a data file or the tagging of a data
file showing the names and addresses of individuals who have been classed as
goneaways by matching the data of Acxiom Purity against the Client's existing
or prospective customer database.
"Terms and Conditions" means these Acxiom Purity Terms and Conditions.
"Term" means the period during which the Client is licensed to use the
particular Deliverables ordered, commencing on the Effective Date or delivery
date (as specified) and continuing for the applicable period set out in clause
2 or earlier termination in accordance with clause 3.
2. Formation of Contract and Licence
2.1 The Deliverables supplied by Acxiom are licensed subject to these Terms and
Conditions which, together with the Order Confirmation, form the Client's
contract with Acxiom. Any terms and conditions on the Client's order form or
other similar document shall not be binding on Acxiom and are rejected. Each
Order Confirmation, in conjunction with these Terms and Conditions, forms a
separate agreement with the Client. The Client acknowledges that it has not
relied upon any agreement, undertaking, arrangement, warranty, representation
or term which is not set out in these Terms and Conditions or in an Order
2.2 The Deliverables may be supplied either (i) to the Client, (ii) to a third
party processor acting on behalf of a Client or (iii) to a Client acting on
behalf of End User(s).
2.3 Subject to these Terms and Conditions, Acxiom grants to the Client the
following licence(s) as applicable (a) standard use: a personal,
non-transferable and non-exclusive licence to use the Deliverables in
accordance with these Terms and Conditions for a Term of six (6) months from
the Effective Date, unless otherwise set out in the Order Confirmation; (b)
evaluation: a personal, non-transferable licence to use the Deliverables in
accordance with these Terms and Conditions for a Term of one (1) month from the
Effective Date, unless otherwise set out in the Order Confirmation.
3.1 Either party may terminate these Terms and Conditions immediately in the
event (i) the other party is in material breach under these Terms and
Conditions and fails to remedy such breach within thirty (30) days of written
notice specifying the nature of such breach or (ii) upon an order being made
for the purposes of liquidation or bankruptcy of the other party (save for the
purposes of voluntary reconstruction or amalgamation).
3.2 Acxiom may terminate these Terms and Conditions immediately in the event
that there is a change of ownership of the Client.
3.3 Unless otherwise specified in these Terms and Conditions or the Order
Confirmation, the Client agrees that as soon as reasonably practicable
following the termination of the Term, but in no event later than thirty (30)
days following termination of the Term: (i) destroy all copies of the
Deliverables; (ii) provide all copies of the Deliverables to Acxiom; or (iii)
instruct others to dispose of the Deliverables in a manner acceptable to
Acxiom. Such disposal shall include Deliverables supplied to Client's third
party processor and/or End User and used in conjunction with any models.
3.4 On Acxiom's request, Client shall certify in writing to Acxiom that it has
destroyed the Deliverables and/or returned all copies of the Deliverables
within 7 days of the same.
4.1 Client acknowledges that Acxiom Purity shall at all times remain the
proprietary or copyrighted property of Acxiom and the Client has no rights
whatsoever in Acxiom Purity other than as permitted in these Terms and
Conditions. The Client undertakes to follow all such reasonable instructions of
Acxiom given from time to time with regard to use of trade marks and other
indications of the property and rights of Acxiom in Acxiom Purity. The
Deliverables shall not be disseminated, sublet, resold, or republished in any
manner whatsoever. Furthermore, the Deliverables shall not be used in the
development of any service or product.
5 Suppression Services (where appropriate)
5.1 Acxiom warrants that, for any data supplied to it by the Client for
processing, Acxiom will only use the Client's data to enable it to provide the
Service and for no other purpose; and within ninety (90) days from the date of
supply of the Suppression File to the Client, arrange for all copies of the
Client's data to be deleted from its systems.
5.2 Where Acxiom agrees to tag Acxiom Purity to data supplied by or on behalf of
the Client, the following terms will additionally apply:
(i) The Client is responsible for the accuracy of its data supplied to Acxiom
and must also ensure that it is provided in a form acceptable to Acxiom. Acxiom
reserves the right to charge a reasonable additional fee for any preparatory
work necessary to use the data.
(ii) The Client warrants to Acxiom that the data it supplies to Acxiom has been
obtained as required under all appropriate data protection legislation, does
not and will not infringe any intellectual property rights of any third party
nor is it in any other respect unlawful. The Client shall indemnify Acxiom
against all costs, claims, damages and expenses arising directly or indirectly,
from any breach of this warranty.
(iii) Notwithstanding the provisions of clause 6 below, the Client acknowledges
that Acxiom may, at its discretion, utilise the services of a respectable data
bureau to assist in the provision of the data tagging. Acxiom shall in such
circumstances require any such bureau to maintain the confidentiality of any
information or data supplied to it in connection with these Terms and
Conditions and shall be responsible for the actions of such bureau in
accordance with and subject to these Terms and Conditions.
(iv) It is acknowledged by the Client that not all of the data records will be
successfully matched with Acxiom Purity.
5.3 Where Acxiom provides the Service, Acxiom will retain a historical file
consisting of those records that were provided to Client within the Suppression
File ("Previous Usage") for a period not to exceed fourteen (14) months. The
Previous Usage files are for the sole use of the Client, or End User if Client
is an agency only and Acxiom shall not disclose or use the Previous Usage file
in any way for a third party without the prior written consent of the Client;
except that Acxiom may disclose the Previous Usage to a data subject in order
to comply with the Act and use the Previous Usage file for its own internal
6.1 The Deliverables provided to Client by Acxiom, customer files provided to
Acxiom by Client, and any other proprietary or confidential information
provided hereunder by one party ("Disclosing Party") to the other ("Receiving
Party") relating to the other or the other's business shall be held in strict
confidence by the Receiving Party and shall not be disclosed or used for any
purpose other than as specifically authorised by the Disclosing Party or as
expressly provided in these Terms and Conditions without the prior written
consent of the Disclosing Party. The Receiving Party shall exercise no less
degree of care with which it protects its own confidential or proprietary
information, such protection the Receiving Party warrants is adequate for the
purpose. This provision shall not, however, apply to information or material
(i) which is or becomes public knowledge other than by a breach of this clause,
(ii) that is required to be disclosed by any applicable law or by any
recognised stock exchange, (iii) obtained from a third party without breach of
an obligation of confidentiality and (iv) information which can be shown to
have been independently developed by the Receiving Party by means other than
through its access to the confidential information or material.
7. Scope of Use
7.1 The Deliverables are for the Client's, or End User's if Client is an agency,
own suppression of goneaway customers in its own direct marketing programs and
for no other purpose. Where the Deliverables are supplied for evaluation
purposes, the Deliverables are to be used for the Client's, or End User's if
Client is an agency, own internal analysis and evaluation purposes only and not
for direct marketing programs.
7.2 The Deliverables shall not be used for or on behalf of any third party other
than (i) the End User in accordance with clause 21 or (ii) the Client's third
party processor in accordance with clause 20.
7.3 Where an agent or a third party processor is acting on behalf of an End
User, the Deliverables shall be held by the agent or third party processor and
shall not be distributed to any third party including the End User.
8. Consumer Care
8.1 Client shall be responsible for accepting and responding to any
communication initiated by a consumer arising out of Client's use of the
Deliverables. Client agrees it has in place a `consumer care' system required
by section 11 of the Act to suppress consumer information, upon request by a
consumer, from future direct marketing solicitations. Client must not refer to
Acxiom in any response without first confirming that Acxiom supplied the data
giving rise to the query. Any reference that Client makes to Acxiom must be in
accordance with Acxiom' instructions. Client must notify Acxiom of any consumer
inquiry that involves the accuracy of the Deliverables.
9. Use Restrictions
9.1 Client agrees to comply with any future requirements imposed upon Acxiom by
industry regulations or rules, legislation and/or best practice guidelines and
made known to Client.
9.2 Client agrees to use reasonable endeavours to issue appropriate instructions
to all its employees, agents and third parties that are provided access to the
Deliverables concerning the restrictions described herein.
9.3 The Client may not sell or otherwise dispose of any data as enhanced by or
in any other way analysed by Acxiom or incorporating the Deliverables.
10. Data Protection
10.1 Words and expressions in this clause shall have the same meanings as
defined in the Act. Each party represents, warrants and undertakes to the other
that throughout the Term it shall comply with the Act and assist the other to
comply with its obligations under the Act where, and if necessary.
10.2 Without prejudice to the generality of the foregoing, where a party
operates as a data processor under these Terms and Conditions, then that party
acknowledges and agrees that it shall;
(i) not transfer any personal data received in connection with these Terms and
Conditions outside the European Economic Area without the prior written
agreement of the other party;
(ii) carry out the processing of personal data solely for the purpose of
fulfilling their obligations under these Terms and Conditions;
(iii) take reasonable steps to ensure the reliability of their respective
employees who have access to personal data; and
(iv) take appropriate technical and organisational measures against unauthorised
or unlawful processing of personal data or accidental loss or destruction of,
or damage to personal data. When considering what measures are appropriate, the
parties shall have regard to the state of technological development and the
cost of implementing any measures to ensure a level of security appropriate to
the harm that may result from such unauthorised or unlawful processing or
accidental loss or destruction, and to the nature of the data.
10.3 Without prejudice to the generality of the foregoing, where a party is
acting as a data controller under these Terms and Conditions, that party
represents, warrants and undertakes that throughout the Term it has the right
to disclose the personal data to the other for the purposes set out in these
Terms and Conditions.
10.4 The Client shall not make any copies of the Deliverables or any parts
thereof without the express written consent of Acxiom other than a reasonable
number of copies for back-up and/or archival purposes only.
10.5 Deliverables shall only be held at the Client's offices or the third party
processor's offices unless otherwise set out in the Order Confirmation.
11.1 The Deliverables may be seeded to detect any unauthorised use or
duplication thereof, and the seeds may not be removed from the Deliverables. If
Acxiom discovers unauthorised use or duplication by Client, Acxiom shall, among
other things, invoice Client for the full multiple use charge and be entitled
to liquidated damages of an amount equal to treble the amount of the value of
these Terms and Conditions. The Client agrees and accepts that such liquidated
damages are a reasonable forecast of losses that Acxiom will incur as a result
of such unauthorised use.
12. Examination of Deliverables
12.1 The Deliverables shall be examined upon delivery and if Client experiences
any errors with the Deliverables it shall notify Acxiom in writing within 30
days of delivery, failing which the Client shall be deemed to have accepted the
13. Cancellations or Amended Orders
13.1 Cancellations or amended orders prior to full processing will be evidenced
by a new Order Confirmation executed by the parties and will be subject to
additional work-in-process charges.
13.2 Orders cancelled after processing but before the order is despatched shall
be subject to full format and run charges plus the sum of £7.50/1,000.
CANCELLATIONS AFTER DESPATCH DATE WILL INCUR A 75% CANCELLATION FEE.
13.3 Changes in specifications, schedules or materials are subject to additional
charges as determined by Acxiom and will be added to the invoice.
14. Fees and Payment
14.1 Client agrees to pay the fees set forth on an Order Confirmation within 30
days of receipt of invoice. ANY AMOUNTS DUE AND NOT PAID WITHIN THIRTY (30)
DAYS OF THE DUE DATE ARE SUBJECT TO A MONTHLY SERVICE CHARGE OF 1.5% per month
of the fees set out in the Order Confirmation.
14.2 The fees are exclusive of VAT, which shall be levied upon Acxiom's invoice
15. Force Majeure
15.1 Acxiom shall not be responsible for, or incur any liability, as the result
of delays or failures in the delivery of the Deliverables or in performing any
of the services described herein in the event of Act of God, strikes, riots,
civil commotion, act of terrorism, war, act or failure to act of any
governmental authority, delays in or failure to deliver any products or
materials by the postal service or other public or private transport, equipment
breakdown or failure, fires, floods, windstorm or any other act or occurrence
beyond Acxiom's reasonable control.
16. Warranty Disclaimer
16.1 Except as set forth in clause 10, Acxiom make no warranties, express or
implied, hereunder with respect to the Deliverables or the media on which
Deliverables are provided, including but not limited to warranties of accuracy,
completeness, currentness, satisfactory quality or fitness for a particular
17. Limitation of Liability
17.1 No party excludes liability for personal injury or death resulting from
negligence or for fraud.
17.2 In no event shall Acxiom be liable to the Client for any of the following:
(i) special, indirect or consequential loss; (ii) loss of revenue; (iii) loss
of profits; (iv) loss of business or goodwill; (v) loss of data; or (vi) loss
of anticipated savings, howsoever caused and even if such loss was reasonably
foreseeable or Acxiom had been advised of the possibility of the Client
suffering such loss. Acxiom's aggregate liability to Client whether for
negligence, breach of warranty, misrepresentation or any other cause of action
shall be limited, to the maximum extent permitted by law, to the sum of one
thousand pounds (£1,000) or the fees paid by the Client in the twelve month
period (calculated from the Effective Date) in which a default arises,
whichever shall be the greater.
17.3 Any cause of action arising under these Terms and Conditions shall be
asserted within two (2) years of the date upon which such cause of action
accrued, or the date upon which the complaining party should have reasonably
discovered the existence of such cause of action, whichever is later.
18.1 Subject to clause 12.1 of these Terms and Conditions, Acxiom's sole
obligation and Client's exclusive remedy for any claim of defective
Deliverables or Services provided by Acxiom or any of its affiliates shall be
to replace the defective Deliverables or re-perform the Services in question
without charge or, at Client's option, to refund the price paid by Client for
such defective Deliverables or Service.
18.2 The provisions as to confidentiality, liability and intellectual property
rights shall continue in full force and effect despite termination of these
Terms and Conditions for whatever reason.
19.1 Client shall defend, indemnify and hold harmless Acxiom, its officers,
directors and employees from and against any and all liabilities, damages,
losses, expenses, demands, claims, suits or judgments, including all
solicitors' fees, costs and expenses arising from Client's, the End User's or
the third party processor's misuse or unauthorised use of the Deliverables or
breach of the Act.
20. Third Party Processor
20.1 If the Client wishes to provide the Deliverables to a third party
processor, such third party processor must be expressly identified in the Order
Confirmation or the Client must subsequently obtain Acxiom's prior written
consent upon providing details of the third party processor to Acxiom.
20.2 In accordance with clause 20.1, the Deliverables may be used by the third
party processor solely on behalf of the Client provided that the third party
processor does not use the Deliverables on behalf of any other party. Client
shall take all steps necessary to ensure that any third party processor
complies with these Terms and Conditions as if it were a party hereto and
hereby indemnifies Acxiom against any claim arising from these Terms and
Conditions as a result of any act or omission on the part of the third party
20.3 Without limiting the foregoing, prior to delivery of the Deliverables to
the third party processor, Client shall obtain the third party processor's
written agreement to act solely as a data processor and to comply with all
relevant provisions of the Act, including but not limited to the Seventh
Principle in relation to the security and integrity of the Deliverables.
21 AGENCIES/END USERS
21.1 If the Client wishes to use the Deliverables on behalf of a third party
("the End User"), the End User must be expressly identified in the Order
Confirmation or the Client must subsequently provide details of the End User to
Acxiom in advance.
21.2 In accordance with clause 21.1 above, the Deliverables may be used by the
Client solely on behalf of End Users provided that Acxiom Purity is not
released to End Users or any other third party. The Client shall take all steps
necessary to ensure that the End User complies with these Terms and Conditions
as if it were a party hereto and hereby indemnifies Acxiom against any claim
arising from these Terms and Conditions as a result of any act or omission on
the part of the End User.
21.3 Where the Client is acting on behalf of an End User, the Client shall
provide a monthly usage/matching report in Acxiom's standard form by the 12th
day of each month in relation to the previous calendar month.
22.1 During the Term and for a period of one (1) year thereafter, upon
reasonable prior written notice, Client shall allow Acxiom or its
representative to examine, inspect, audit, review and copy or make extracts
from all such books, computers, databases, records and any source documents
relating to its use of the Deliverables.
23. Entire Agreement
23.1 These Terms and Conditions, together with the Order Confirmation and any
attachments thereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes any and all written or oral
prior agreements and understandings between the parties with respect to the
subject matter hereof.
24. Law and Jurisdiction
24.1 These Terms and Conditions shall be governed by and construed in accordance
with the laws of England and Wales and shall be subject to the exclusive
jurisdiction of the courts of England and Wales.
25.1 Neither party may assign its rights and obligations hereunder without the
prior written consent of the other party; provided, however, that no consent
shall be required for assignment by Acxiom, upon written notice to the Client,
to an affiliated, subsidiary or holding group or company as defined in the
Companies Act 1985.
26.1 Acxiom may use Client on its customer list in presentations made to its
shareholders, customers and stock analysts, provided no representation is made
as to the Client's opinion of the Deliverables or services.
27. Contracts (Rights of Third Parties) Act 1999
27.1Where Acxiom Limited is not the Acxiom company named in the Order
Confirmation, then it shall nonetheless be entitled to enforce these Terms and
Conditions in accordance with the Contracts (Rights of Third Parties) Act 1999.
Subject to the above, these Terms and Conditions do not create any rights under
the Contracts (Rights of Third Parties) Act 1999 which are enforceable by any
person who is not a party to it. Save for Acxiom Limited, no other third party
who is not a party to these Terms and Conditions may enforce any of its terms
or rely on any exclusion or limitation contained in it.
28. General Provisions
28.1All notices shall be given in writing as follows: (i) for the Client, to the
address and the person as specified in the Order Confirmation and (ii) for
Acxiom, to the attention of Group Finance Leader, Park House, Station Road,
Teddington, Middlesex TW11 9AD, fax 0208 213 5588, unless otherwise agreed.
Notice sent by post shall be deemed to be delivered forty-eight hours after
28.2Any waiver, concession or indulgence made by either party shall not be
considered to be a continuing waiver of its rights.
28.3 If any term of these Terms and Conditions shall be held to be invalid,
illegal or unenforceable, the remaining terms or provisions shall remain in
full force and effect and such invalid, illegal or unenforceable terms and
provisions shall be deemed not to have been part of these Terms and Conditions.
28.4All headings used in these Terms and Conditions are for convenience only and
shall be disregarded for the purpose of any interpretation of these Terms and
28.5 In the event that there is any conflict between these Terms and Conditions
and the Order Confirmation, the terms of these Terms and Conditions shall
LINK 3 - END USER AGREEMENT - ROYAL MAIL
In relation to any elements of the Services that are provided by Data8 in
relation to services Data8 has subcontracted to the Royal Mail or where Data8
uses data, information or files from the Royal Mail, Data8 is required to
ensure that Customer complies with the Royal Mail's specific end-users licences
and terms and therefore Customer hereby agrees to comply with the following
terms and conditions and Customer (or "End-User" for the purposes of these
Royal Mail end-user terms) agrees that the following terms form part of the
Contract and that it agrees to the following with Data8 ("the Licensee" for the
purposes of these Royal Mail end-user terms).
For the avoidance of doubt, in the Royal Mail end user licences "Data" shall
mean (as the case may be) the Royal Mail databases known as the "Business
Changes File", the "National Change of Address File", the "Universal
Suppression File" and such other Royal Mail data sources as Data8 shall notify
to the Customer when providing the Services from time to time.
In addition the Customer acknowledges that the Royal Mail shall be entitled to
enforce the provisions of the Royal Mail end user licences against the Customer
pursuant to the Contracts (Rights of Third Parties) Act 1999.
LINK 4 - END USER AGREEMENT - BRITISH TELECOM
1. OBLIGATIONS OF THE END-USER
1.1 The End-User shall:
1.1.1 in all its dealings with or relating to information derived from BT’s OSIS database (“Information”) comply with .all applicable laws and codes of practice including the Data Protection Act 1998 and the Code of Practice on Telecommunications Directory Information Covering the Fair Processing of Personal Data (21 December 1998);
1.1.2 use all reasonable endeavours in relation to the security and confidentiality of the Information in its custody or control to prevent any unauthorised disclosure of any part of it;
1.1.3 if any complaint is made which relates to the End-user’s use of the Information then the End-user shall assist BT and the Licensee in investigating the complaint and shall take such steps as are reasonably necessary to remedy the complaint as soon as practicable;
1.1.4 only use or process any of the Information for their own internal purposes or, in the alternative, for a single use for a single specific person who is the End-user’s customer.
1.2 The End-User shall not:
1.2.1 distribute, publish or display any material amount of the information by any means, except so that a single specific person can use it as permitted by paragraph 1.1.4 above.
1.2.2 export or permit the export of any material amount of the Information to a country which is not within the European Economic Area without the express consent of BT.
2.1 The End-user shall not have any rights to use the BT Marks and shall not make reference to BT or any BT product or service in any promotional or marketing advertising, communications, literature, or packaging.
2.2 The End-user shall not alter any copyright or other intellectual property right acknowledgement or confidentiality marking incorporated into or applied to BT’s OSIS data or documentation owned by BT.