Terms and Conditions of Business for Intelligent Data Group
In these terms and conditions (the “Terms”) the following words and expressions shall have the following meanings:
“Additional Charges” means any such fees as may be agreed by the Company and customer in respect of any Additional Terms;
“Additional Terms” means any such special or additional terms beyond those specified in the Order as may be agreed in writing by the Company and customer;
“Agreement” means the Order, these Terms and any Additional Terms;
“Charges” means i) the fees payable in terms of the Order; ii) any Additional Charges; iii) any Penalty Charges and iv) the *Standard Rates as may be payable in accordance with Clause 3.3;
“Company” means IDS Data Services Limited, a company incorporated in Scotland under the Companies Acts (Company Number SC290233) and having its registered office at 144 West George Street, Glasgow, G2 2HG;
“Customer” means the person, firm or incorporated body set out in the Order, their successors and assignees;
“Hard Bounces” means an indication that an email address is invalid;
“Intellectual Property Rights” means any and all patents, copyrights, database rights, design rights, trademarks, service marks, trade and business names (whether or not any of these are registered and including applications for registration of any of the foregoing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world;
“Licensed Data” means each and/or all of the compiled listings of data including a combination of names, addresses, telephone numbers, email addresses and/or other information supplied by the Company to the Customer pursuant to this Agreement (and the Company reserves the right to include within the Licensed Data seed addresses and any other data required to secure compliance with these Terms);
“Licence Period” means the period specified in the Order, or if no licence period is specified in the Order, 12 months commencing the date of the Order;
“Multi-Use Licence” means a non-exclusive licence to use the Licensed Data for a Permitted Use on the number of occasions stated in the Order, within the Licence Period;
“Order” means an order form for the supply of Licensed Data;
“Penalty Charges” means such charges as are payable in terms of Clauses 4.2 or 8;
“Permitted Sub-Contractors” means such broadcasting houses or other marketing agents as the Company may expressly consent to in writing and the Company reserves the right to request a written undertaking from such parties;
“Permitted Uses” means mailing, telemarketing or email marketing by the Customer or their Permitted Sub-Contractors;
“Single Use Licence” means a non-exclusive licence to use the Licenced Data once for a Permitted Use within the Licence Period;
“Soft Bounces” means an indication that an email has been rejected because there is a fault in the recipient’s system;
“Standard Rates” means such scale of fees as are published by the Company from time to time;
“Unlimited Licence” means a non-exclusive licence to use the Licensed Data for any Permitted Uses without restrictions as to the number of uses;
“Website” means www.intelligentdatagroup.co.uk and/or www.intelligentdataservices.co.uk and/or www.intelligentds.co.uk and/or such other websites operated by the Company from time to time; and
“Working Day” means any day which the Banks in the UK are open for business other than a Saturday and Sunday and public holidays.
The Company hereby grants a Single Use Licence, Multi-Use Licence or Unlimited Licence as determined in the Order for the use of the Licenced Data by the Customer for the Permitted Uses only
3.1. The Customer hereby warrants that the terms of the Order supplied by the Company and any Additional Terms are accurate. The Company accepts no responsibility for any errors, omissions or other defects in the Order or Additional Terms.
3.2. Additional Charges shall be payable in respect of any Additional Terms.
3.3. In the event that the Company provides goods or carries out any services for which Charges are not agreed in advance, the Company may charge the *Standard Rates.
4.1. No Order may be cancelled after the Company has delivered the Licensed Data or any part of thereof to the Customer.
4.2. If the Customer wishes to cancel an Order, it must send written notice of cancellation by post or fax to the Company (at the address or number given on the Website) before the Licensed Data has been delivered and there shall be a cancellation charge of 75% of the Charges to the Company payable within 7 days of the written notice of cancellation.
5.1. The Customer shall pay the Charges and any other sums payable to the Company under this Agreement in accordance with these Terms.
5.2. The Charges are exclusive of Value Added Tax and governmental or other charges, which shall be added to such payments if applicable and shall be included and itemised separately on invoices, where appropriate.
5.3. All Charges or any part thereof and any other sum payable to the Company in terms of this Agreement shall be made free from any deduction, withholding or set-off.
5.4. Payment of all Charges shall be due within 7 days of the date of invoice or on the dates set out in the Order.
5.5. Time of payment shall be a material condition of the Agreement and unless otherwise agreed in writing between the Company and the Customer, interest at the rate of four per cent per annum above the base rate for the time being of the Bank of Scotland will be payable by the Customer on all sums remaining unpaid after the due date for payment as provided for in this Agreement.
5.6. If the Customer fails to pay the Charges or any part thereof, or any other amount due to the Company under this Agreement then the Company has the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.7. The Customer hereby undertakes to and indemnifies the Company against all costs, charges, expenses and other sums expended, paid, incurred in relation to the recovery of any Charges or part thereof or interest thereon or any other sums payable under this Agreement by the Customer.
5.8. Where the Customer is an incorporated body, the directors or members of the Customer shall be jointly and severally liable for any sums payable to the Company in terms of this Agreement.
6. Replacement Data
6.1. If Licensed Data has been supplied from the Company’s own in-house database and not from a third party or brokered database bought in especially for the Customer, then subject to Clause 6.2, the Company will provide replacement data under the following circumstances:
6.1.1. where more than 2% of postal addresses in the Licensed Data can be shown to be inaccurate; or
6.1.2. where more than 2% of telephone numbers in the Licensed Data can be shown to be inaccurate; or
6.1.3. where more than 5% of the email addresses within the Licensed Data generate Hard Bounces; and
for the avoidance of doubt, where the Company provides extra data among the Licensed Data free of charge, such data shall not be subject to the replacement obligations set out in Clause 6.1.
6.2. Where Licensed Data has been purchased or brokered from a third party on behalf of the Customer, replacement data can only be sought, when more than a 10% of mailing addresses can be shown to be inaccurate or where over 10% of telephone numbers can be illustrated as non-contactable. However replacement data will be at the discretion of the third party supplier and the Company shall not be held accountable if no replacement data is made available.
6.3. A claim for replacement data from a Customer must be made in writing and the Customer must:
6.3.1. demonstrate that they have tried to contact a minimum of 20% or 500 (whichever is the greater) of the recipients in the Licensed Data in question within a period of 30 days from delivery of the Licensed Data; and
6.3.2. provide a full report detailing the accuracy or inaccuracy of each individual record in the Licensed Data and in relation to email addresses, identify whether any bounces were Hard Bounces or Soft Bounces in report format from a verified email broadcasting tool.
6.4. On receipt of the reports in terms of Clause 6.3, the Company shall have 10 working days to investigate any inaccuracies and if they are satisfied that they are above the levels set out in Clause 6.1 then replacement data for the appropriate number of inaccurate record will be supplied as soon as reasonably practicable or where the Licence Data is being delivered in batches to the Customer, along with the last batch of Licensed Data.
6.5. All email databases shall contain no more than 30% generic emails unless personal emails only are requested. If the supplied data contains more than 30% generic emails then the customer (unless otherwise agreed prior to signing the order form) will be entitles to have these replaced to ensure that the supplied data falls within the 30% generic split.
7. IntellectualProperty Rights
7.1. The Customer acknowledges the Intellectual Property Rights of the Company in relation to the Licenced Data and shall not acquire or be deemed to acquire under this Agreement any rights in relation thereto or any other property or rights belonging to the Company (including without limitation, copyright, logos, trademarks, service marks or get-up) other than as expressly granted and licensed hereunder.
7.2. The Customer shall not during or at any time after the expiry or termination of this Agreement in any way question or dispute the ownership by the Company of any rights in the Licenced Data.
7.3. The Customer hereby undertakes to keep secure and confidential the Licenced Data and only to allow those employees access to the Licenced Data as is necessary for the performance of the Permitted Uses. The Customer shall not to disclose, sell or lend the Licenced Data to any third parties.
7.4. The Customer hereby indemnifies and shall keep indemnified the Company for any and all loss, costs, liabilities and expenses as may be incurred by the Company directly or indirectly because of a breach of this Clause by the Customer.
7.5. The Customer hereby indemnifies and shall keep indemnified the Company for any and all loss, costs, liabilities and expenses as may be incurred by the Company directly or indirectly because of any misuse of the Licensed Data or any part thereof or any other derivative work in which the Company has Intellectual Property Rights, by any Permitted Sub-contractors.
In the event that the Customer is in breach of the terms of a Single Use Licence or Multi-Use Licence, the Company shall be entitled to apply their *Standard Rates to any uses of the Licensed Data or any other material or derivative work in which the Company has Intellectual Property Rights and invoice the Customer accordingly.
9. Limitation of Liability
9.1. Nothing in this Agreement shall exclude or in any way limit the Company’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this but including any liability arising under any indemnity under this Agreement:
9.1.1. the Company’s maximum aggregate liability under or in connection with this Agreement, whether in contractor delict (including negligence) or otherwise, will in, no circumstances, exceed the Charges; and
9.1.2. the Company will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by delict or tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
9.2. These Terms state the full extent of the Company’s obligations and liabilities in respect of the performance under the Agreement. The parties agree that any condition, warranty representation or other term concerning the performance under the Agreement which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.
9.3. The Company shall not be liable in contract or otherwise for any economic, indirect or consequential loss or damage sustained by the Customer or others directly or indirectly making use of the Licenced Data including but not limited to any economic, indirect or consequential loss or damage resulting as a consequence of any defects or inaccuracies or errors in the Licensed Data.
9.4. Where the Licensed Data is deliverable in batches, the Company shall use its reasonable endeavours to remind the Customer of any Licensed Data which has not been requested for delivery within a Licence Period, however ultimate responsibility for delivery within the Licence Period will remain with the Customer and no refund shall be made in the event that the Customer fails to take delivery of the Licensed Data or any part thereof.
9.5. The Company will not give any refund to the Customer in the event that the Customer has under used the Licensed Data in accordance with the Customer’s Single Use Licence or Multi-Use Licence.
9.6. If the customer requires the records detailed in their order/agreement to be output and supplied in multiple batches, then the minimum output will be 25% of the total order volume and such volume has to be exported as one single output. Each order shall therefore be subject to a maximum of 4 outputs per order/agreement.
10. Legislation and Guidelines
10.1. The Customer undertakes to the Company that it will use the Licenced Data in compliance with all UK legislation, government guidelines and regulations, including but not limited to the Data Protection Act1998.
10.2. The Company recommends that the Customer adheres to the DMA Guidelines.
11.1. Either party may terminate this Agreement forthwith by notice in writing to the other if the other party:
11.1.1. is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
11.1.2. passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
11.1.3. being a partnership or other unincorporated association is dissolved or being a natural person dies; or
11.1.4. becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with or grants a trust deed in favour of its creditors or is sequestrated; or
11.1.5. has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
11.1.6. ceases, or threatens to cease, to carry on business.
11.2. The termination of this Agreement howsoever arising will be without prejudice to the rights and obligations of either party accrued prior to termination and the Customer shall forthwith upon termination pay to the Company any Charges or other sums payable under this Agreement whether or not already invoiced on the date of termination.
12. Force Majeure
The Company shall not be liable for any delay or failure to fulfil its obligations under any Order which is due wholly or partially to any strike, lock-out or other industrial action, electrical failure, server failure, third party acts or omissions or any other event or act beyond the reasonable control of the Company including without limitation, acts of God, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm.
14.1. Unless agreed in writing by a Director of the Company no variation of this Agreement will be binding.
14.2. The Company shall be permitted to assign the benefit and/or burden of the Agreement without the prior written consent of the Customer. The Customer shall not be permitted to assign the benefit and/or burden of the Agreement without prior written consent from the Company.
14.3. A person who is not a party to this Agreement shall have no right or entitlement to enforce any term of this Agreement.
14.4. The failure of the Company to enforce or to exercise at any time or for any period any right pursuant to this Agreement shall not be construed as a waiver of any such right and shall in no way affect the Company’s right later to enforce or exercise it.
14.5. The relationship between the parties is as set out in the Agreement and no employment, joint venture, partnership or agency relationship shall be deemed to subsist between the parties.
14.6. If any provision of these Terms or the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Terms and the Agreement and the remainder of such provision shall continue in full force and effect.
14.7. The formation, existence, construction, performance, validity and all aspects of this Agreement shall be governed by Scots law and the parties submit to the exclusive jurisdiction of the Scottish courts.
* Standard Rates – Rate Card
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