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1 Definitions In this Licence, unless the context otherwise requires, the following expressions have the following meanings: 1.1 reference to a party is reference to a party to this agreement and includes his permitted assignees and the respective successors in title to substantially the whole of his undertaking; 1.2 reference to a person includes any person, individual, company, firm, corporation, government, state or agency of a state, or any undertaking whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists; 1.3 words denoting the singular include the plural and vice versa and words denoting any gender include all genders; and 1.4 reference to a numbered clause, paragraph or schedule is to that clause, paragraph or schedule of this agreement; 1.5 “Licence Period” means the period specified in Schedule 1. 1.6 “Working Days” means any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or a statutory Bank Holiday. 1.7 "Amendment" means the details of changes to a Record. 1.8 "Conditions" means these conditions of contract. 1.9 "Contract" means the contract concluded between the Licensee and the Licensor including these Conditions an Order and the Schedule. 1.10 "Count" means a count of a number of Records used in calculating the Licence Fee. 1.11 "report" means the rerports provided by the BETA Model 1.12 "Database" means the database licensed by the Licensor from which reports are extracted for the Licensee's use under the Contract. 1.15 "Field" means a section of a Record containing an identified attribute of or relating to a Data Subject from the range of standard attributes maintained by the Licensor from time to time and including by way of example and not by way of limitation the business name or address or telephone number or business classification. 1.16 “Licensor” or “our” and “we” means Beta Model Limited (Company No. 4374478) whose registered office is at 38 Ullet Road Liverpool L17 3BP 1.17 “Licensee” means You and your business 1.18 "Licence" means such licences to be granted to the Licensee to use Reports upon and subject to the provisions of Condition 8. 1.19 "Permitted Uses" means the uses to which the Licensee is permitted to use reports as described in Condition 8. 1.21 "Record" means an individual entry on the Database 1.23 "Selection Criteria" means an attribute of Data chosen by the Licensee and employed by the Licensor to search for reports on the Database. 1.24 "Services" means the services to be performed or procured, the work to be done or procured and the licences to be
granted pursuant to the Contract. 1.26 "Virus" means a computer virus that interferes or has the capacity to interfere with a computer's correct and proper functioning within the commonly understood meaning of the term "computer virus".
2 Grant of licence 2.1 Subject to the terms of the Agreement and in consideration of the agreement by the Licensee to the terms of this Agreement the Licensor grants to the Licensee a non-exclusive and non-transferable Licence (‘the Licence’) to access Reports only for the purposes permitted in this Licence during the Licence Period and subject to Condition 8. 2.2 the Licence shall not be deemed to extend to any programs or materials of the Licensor other than the Reports unless specifically agreed to in writing by the Licensor; 2.3 These Conditions are the standard conditions for the provision of the Services and shall take effect in substitution of all previous agreements and arrangements relating to the contents hereof whether written oral or implied between the Licensor and the Licensee. These Conditions shall prevail over any terms and conditions appearing in any Licensee order or other stationery of the Licensee. 2.4 The Licensee acknowledges and agrees that the allocation of risk contained in the Licence is reflected in absence of the payment of a licence fee. The Licensor does not warrant that the access to reports will be uninterrupted and error free.
3. Extent of Licence 3.1 The Licensee hereby acknowledges that it is licensed to use the Reports only in accordance with the express terms of this agreement and not further or otherwise. 3.2 The Licensee shall not transfer or distribute (whether by licence, loan, rental, sale or otherwise) all or any part of the Reprots to any third party
without the prior written consent of the Licensor 3.3 The licensee shall not be able to sell the reports or to sell analyses which make use of the results without the agreement of the Licensor
4. Payment 4.1 Any charges payable by the Licensee under this agreement together with or in addition to the Licence Fee shall be paid within 30 days after the receipt by the Licensee of the Licensor's invoice therefor. 4.2 The Licensor shall have the right to charge interest on overdue invoices at the rate of 5% per annum above the base rate
of HSBC Bank Plc, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment compounded monthly.
5. Obligations of the Licensor 5.1 The Licensor will advise the Licensee of the date(s) by which it anticipates enabling the Licensee to download Data on-line. The Licensor will make reasonable efforts to enable downloading within the agreed time but time shall not be deemed to be the essence of the Contract. 5.2.2 the Licensee must not discuss
the allegations or make any admissions to any third party without the Licensor's prior written consent; and 5.2.3 at the Licensor's request and expense, the Licensee must allow the Licensor to conduct any negotiations or litigation and/or settle any claim but, in these circumstances the Licensee must also give the Licensor all reasonable assistance. Any reasonable and proper costs that may be incurred or recovered in such negotiations or settlements shall be for the Licensor's account. 5.4 The Licensor reserves the right to withhold information that may be held on the Database where the Licensor consider this to be necessary. If the Licensor does withhold such information, any Records not released to the Licensee will not be included in the Count for the purposes of the Licence Fee. 5.5 The Licensor will provide to the Licensee a password to gain access to the Reports.
6. Obligations of the Licensee 6.1 No matter what other rights or remedies may be available to the Licensor, the Licensee must indemnify the Licensor against any loss or expense it sustains by reason of any breach of the Contract by the the Licensee. 6.2 The Licensee must strictly abide by the terms of the Licence to possess and use Reports
in accordance with the provisions of Condition 8. 6.4 The Licensee must ensure that its employees, the Licensee, anyone representing the Licensee or working on its behalf who may at any time have access to Reports is aware of these Conditions and complies with them. 6.6 If, in accordance with the Contract, the Licensee is permitted to employ the services of a Sub-licensee, the Licensee must ensure that the Licensee's warranties and undertakings to the Licensor are reflected in any contractual arrangement between the Licensee and the Sub-licensee. 6.7 The Licensee must not disclose its password to any third party or permit its password to be used by any third party. If the Licensee suspects or knows that its password is known or used by a third party it must notify the Licensor in writing at once.
7. Mutual obligations In order to minimise the risk that a computer file will contain a Virus the Licensee and the Licensor agree to and use good standards of housekeeping on their respective computer systems.
8. Grant of Licence 8.1 This Condition deals with the Licensee's rights to possess and use Reports. The Licensee's rights of possession and use are strictly limited to the provisions of this Condition. 8.2 The Licensor hereby gives the Licensee permission to possess and make use of Reports but only for the Permitted Uses described in
Condition 8.5. This permission constitutes the Licensee's Licence. 8.5 The Licensee hereby undertakes only to use Reports for lawful purposes within the Permitted Uses below which purposes are not likely to bring the Licensor into disrepute or to cause the Licensor embarrassment. The Permitted Uses are: 8.5.1 Statistical analysis of the Reports; 8.7.1
publish anything which states or implies that either the Licensor has approved the use the Licensee has made or will make of Reports; 8.8 The Licence is personal to the Licensee. The Licensee is not entitled to allow any third party to have possession or to make use of Reports in any way, at any time, or for any purpose, unless the Licensor has given the Licensee permission to grant a Sub-licence in accordance with Condition 9. The Licensee is not permitted to sell or dispose of a Licence in any way. 8.9 The Licence is not exclusive to the
Licensee and the Licensor is entitled to grant others the right to possess and use Reports.
9. Third Party Access to and use of the Data There may be circumstances where the Licensee may want to give a third party access to Reports. If this happens, or is likely to happen, the Licensee must advise the Licensor in writing and the Licensor will decide whether or not it gives the Licensee permission to allow this other party access to Reports. If the Licensor gives permission, the party concerned will be treated as a Sub-Licensee. That party's rights to possess and use Reports are no greater than the Licensee's under the
Licence.
10. Limitation of Liability 10.1 The Licensor does not exclude or restrict liability for death or personal injury resulting from its negligence in performing the Services. 10.2 The Licensor accepts a duty to exercise reasonable skill and care in performing the Services. However, except as expressly contained in these Conditions, the Licensor has no
obligation or liability to the Licensee in contract or in tort or otherwise beyond exercising such reasonable skill and care. 10.3 In no circumstances shall the Licensor accept liability in contract or in tort or otherwise for loss of profits, business, anticipated savings, or any indirect or consequential loss whatsoever. 10.4 The Licensor's liability in contract or in tort or otherwise arising by reason of or in connection with the Contract or howsoever otherwise shall be limited to £10. 10.5 The Licensee will normally be notified of the availability of Reports to be downloaded on-line. 10.8 Neither the Licensee nor the Licensor shall be liable to the other for any cost damage or expense howsoever arising as a result of any Virus irrespective of the source of that Virus. 10.9 Each provision of this Condition is to be
construed as a separate limitation applying and surviving even if for any reason one or other of the said provisions is held inapplicable or unreasonable in any circumstances.
11. Warranties 11.1 The Licensee and the Licensor warrant to each other that they are appropriately registered under the terms of the Data Protection Acts 1984 and 1998 to operate or to control the operation of the Database and if appropriate to receive hold and manipulate Reports. 11.2 Limited Warranties relating to Data: While the Licensor expends effort maintaining the Database, given the nature of the Data, all databases of this kind suffer from some inaccuracy. Consequently, there are a number of things the Licensor cannot guarantee. In particular the Licensor does not warrant that: 11.2.1 Data are free from errors or inaccuracies 11.2.2 Data are a complete
list of the category of persons things or Data Subjects described therein. 11.2.3 Data are suitable for the application nor fit for the purposes for which the Licensee is licensed to hold and use the Data. 11.2.4 a Field within a Record or an Amendment will contain data. 11.2.5 there is uniform accuracy in the Data across different years. 11.3 The Licensee hereby acknowledges that the nature of the Database is dynamic and is subject to a process of continual updating by the Licensor and Experian Limited.
12. Termination 12.1 The Contract will remain in force and effect until it is terminated pursuant to Condition 7 or earlier in accordance with one of the following provisions. 12.2 The Contract and the Licensee's Licence will terminate immediately if the Licensee: 12.2.1 is the subject of a receiving order in bankruptcy (or in Scotland is sequestrated or in Northern Ireland is adjudicated bankrupt) or becomes insolvent or makes any composition or arrangement with or assignment for the benefit of creditors or suffers execution distress any form of diligence or seizure to be levied or effected on or against the Licensee's premises assets or effects or being a company goes into liquidation, whether voluntary or compulsory or has a receiver or administrative receiver of any asset appointed; or 12.2.2 fails to observe or perform the provisions of these Conditions; 12.3 where a license to access Reports is provided without charge that license can be terminated at any time by the Licensor 12.4 The Licensor shall be entitled to terminate the Contract by giving not less than seven days notice to the Licensee if there is, at any time, a material change in the Licensee's ownership or control. The Licensee must give the Licensor notice of any material change in the Licensee's ownership or control. 12.5 The Licensor shall be entitled to terminate the Licence forthwith without further liability upon the part of the Licensor if it is no longer able to access information/data from Experian Limited. 12.6 Any termination of the Contract pursuant to this Condition 12 shall be without prejudice to any other rights or remedies the Licensor may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of the Licensor nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in
force on or after such termination.
13. Consequences upon Termination 13.1 If the Licensor terminates the Contract in accordance with Conditions 12.2 or 12.3, the Licensee shall remain liable for all charges and sums due or to become due or which would have been payable under the Contract.
14. Charges and Payment 14.1 If the Licensee fails to comply with any of the provisions of these Conditions it shall nevertheless continue to be liable for the charges and sums due and to become due. 14.2 In the event of any delay by the Licensee in making payments due in respect of the Contract the Licensor may postpone fulfilment of any of its obligations
to the Licensee relating to the Contract or to any other contract between the Licensee and the Licensor and settled on similar terms to the Contract until such payment is made.
15. Intellectual Property Rights 15.1 The Licensor licences all the Data from Yell Limited. The Contract and Licence only provides for the Licensee's possession and use of Data. 15.2 Nothing in these Conditions provides for any transfer of ownership in any Data. Nothing the Licensee may do to Data (such as updating, amending, changing, verifying,
validating, modifying or merging them) will cause a change in ownership. No action by nor input from the Licensee will cause a change in ownership. 15.3 Yell Limited owns the copyright and any design rights in: Data; Records; Amendments; the Database; the structure composition and compilation of the Database; and the Yellow Pages classification headings, and in all specifications, tabulations of data, drawings, diagrams, flowcharts, photographs, software listings and any work (of whatever description) relating to the Database.
16 Restrictions on alterations The Licensee undertakes to first consult the Licensor regarding any data the Licensee requires in order to achieve interoperability so that the Licensor may consider making the same available to the Licensee
17 Security and control The Licensee shall during the continuance of the Licence: 17.1 effect and maintain adequate security measures to safeguard the Reports from access or use by any unauthorised person; 17.2 retain all copies of Reports under the Licensee's effective control; 17.3 maintain a full and accurate record of the Licensee's copying and disclosure of the Reports and shall produce such record to the Licensor on request from time to time.
18 Proprietary rights 18.1 The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Reports by any person. 18.2 The Licensee will not acquire any title copyright or other proprietary rights in the Reports or any copies of them.
19 Intellectual property rights 19.1 If, in the Licensor’s reasonable opinion, the use of the Reports is or may become the subject of an Intellectual Property Claim (which means the use of the Data infringes the Intellectual Property Rights of a third party) then the Licensor shall immediately terminate this Agreement. 19.2 The Licensor
shall have no liability for any Intellectual Property Claim resulting from the use of the Reports in combination with any equipment or programs not supplied or approved by the Licensor or any modification of any item of the Reports by a party other than the Licensor or its authorised agent.
20 Confidential information 20.1 Both parties to this Agreement undertake, except as provided below, to treat as confidential and keep secret all information marked ‘confidential’ or which may reasonably be supposed to be confidential, including, without limitation, information contained or embodied in the Reports, and other information supplied by the Licensee or Licensor (in this Agreement collectively referred to as ‘the Information’) with the same degree of care as it employs with regard to its own confidential information of a like
nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause). 20.2 Both parties shall not without the prior written consent of the other party divulge any part of the Information to any person except: 20.2.1 to their own employees and then
only to those employees who need to know the same; 20.2.2 to either parties’ auditors, HM Inspector of Taxes, HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right duty or obligation to know the business of the other party and then only in pursuance of such right duty or obligation; 20.4 Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the
Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence. 20.5 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence.
21 Interpretation 21.1 In this Agreement unless the context otherwise requires: 21.1.1 words importing any gender include every gender; 21.1.2 words importing the
singular number include the plural number and vice versa; 21.1.3 words importing persons include firms, companies and corporations and vice versa; 21.1.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement; 21.1.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that
schedule; 21.1.6 the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation; 21.1.7 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; 21.1.8 any obligation on any party not to do or omit to do anything is to
include an obligation not to allow that thing to be done or omitted to be done; 21.1.9 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
22 Agency, partnership This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
23 Amendments This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties to this Agreement.
24 Announcements No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from the other party.
25 Entire agreement The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
26 Force majeure Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 2 months, either party may terminate this Agreement by written notice to the other party.
27 Notices 27.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by fax (confirmed by first class mail or air mail), to the address of the relevant party set out at the head of this Agreement or such other address as that party may from time to time notify to the other party in accordance with this Condition 31.1. 27.2 Notices sent as above shall be deemed to have been received three working days after the day of posting (in the case of inland first class mail), or seven working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of fax messages, but only if a transmission report is generated by the sender's fax machine recording a message from the recipient's fax machine, confirming that the fax was sent to the number indicated above and confirming that all pages were successfully transmitted). 27.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was
properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
29 Severance If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
30 Waiver No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
31 Time is of the essence Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.
32 Language This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of this Agreement in any other language, the English language version shall prevail.
33 Third Parties The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
SCHEDULE 1 Licence Period 12 months from the date of acceptance of this licence and thereafter for renewal at the discretion of the Licensor. |
