Standard Terms And Conditions For The Licencing Of Data

Privacy policy

This Licence govern all transactions that are carried out through the Website.

Please read the terms and conditions of this Licence carefully and ensure you understand them fully, before agreeing to be bound by them. The Company reserves the right to amend the Licence at any time, with any such amendments being displayed on the Website.

1. DEFINITIONS
1.1       In this Licence the following expressions shall have the following meanings unless the context otherwise requires:

“Agreement”	means the Order Form together with the License;
“Client”	means any and all clients or customers of the Licensee;
“Commencement Date”	means the date that the Order Form has been confirmed;
“Confidential Information”	means all such information concerning the Licensor and/or Licensor’s business or the Database including without limitation data, know-how, formulae, processes, designs, photographs, drawings, specifications, software programs, samples and any other material whatsoever bearing or incorporating any information relating to the Licensor and/or the Licensor’s business of whatever kind in written, oral or digital form including for the avoidance of doubt any and all papers, books, records, accounts, blueprints, plans, client lists, reports, processes, information packs and other papers, documents or technology to which access may be given to either party pursuant to this Licence;
“Database”	means a collection of data, information and materials recorded and stored electronically or otherwise of whatsoever kind including for the avoidance of doubt names, addresses, telephone numbers, email addresses, graphs, maps, picture, sketches( the list is non-exhaustive);
“Delivery”	Means the collection of the Database, Derivative Works and/or Materials by the licensee via E-Mail in accordance with the Order Form;
“Delivery Charges”	means the fee payable in relation to the cost of carrier delivery, packing and insurance for the Delivery of the Materials to the Licensee in accordance with the terms of this Licence;
“Derivative Works”	means any and all copies of the Database or any part thereof or any information whatsoever derived from the Database;
“Direct Marketing Campaign”	means a form of campaign targeted at Third Parties whereby Third Parties are contacted by the Licensee (whether by email, telephone, direct mail, fax or otherwise) for the purpose of the Licensee seeking to sell, promote or market certain products and/or services of the Licensee;
“Direct Marketing”	means any form of telesales, telemarketing, mail and email shots, market research, brochures, etc (the list is non-exhaustive);
“Dummy Data Records”	means records which do not relate to a genuine individual and/or business but used for the purpose of monitoring the used of the Database;
“Information”	means the entire content of the Website as amended from time to time;
“Intellectual Property Rights”	means any and all copyrights, database rights and all other intellectual property rights  whatsoever recorded in relation to the Database, Derivative Works and/or Materials including without limitation data, know-how, formulae, designs, photographs, drawings, graphs, software programs;
“Licence”	means the terms and conditions of this licence as set out below;
“Licence Fee”	means the licence fee payable by the Licensee to the Licensor in accordance with the Order Form;
“Licensor”	means List4email Limited;
“Multiple Use”	means me the use of the Database or any part thereof once a month for a period of 12 months;
“Order”	means an order placed by the Licensee with the Licensor, as specified on the Order Form, and confirmed in writing, which includes E-Mail, by the Licensor to the Licensee of its acceptance;
“Order Form”	means the order form setting out the details of the Licence and signed by the Licensor and the Licensee;
“Permitted Use”	means the use of the Database in connection with a Direct Marketing Campaign or Direct Marketing Campaigns relating to the business of the Licensee as specified on the Order Form;
“Price”	means the price for the Materials as specified in the Order;
“Services”	means the services of the supply of Database, Derivative Works and/or Materials in accordance with the Order;
“Single Use”	means the use of the Database, Derivative Works and/or Materials or any part thereof once anytime within a 3 month period from the commencement date;
“Territory”	means the United Kingdom;
“Term”	means the period of this Licence as set out in the Order Form;
“Third Party”	means any individual, partnership, company, unincorporated business or any other undertaking;
“VAT”	means value added tax as the same is chargeable from time to time;
"Virus"	a computer virus which interferes or has the capacity to interfere with a computer' s correct and proper functioning within the commonly understood meaning of the term; and
“Website”	means the site on the World Wide Web owned and operated by the Licensor.

1.2       The heading in this Licence are for convenience purposes only and shall not affect the construction or interpretation thereof.

1.3       Unless the context otherwise requires references to statutory provisions include those statutory provisions as amended or re-enacted and references to any gender include all genders.

1.4       Words in the singular include the plural and vice-versa.

1.5       The expression “subsidiary” and “holding company” shall have the meanings given to them in section 736 of the Companies Act 1989.

1.6       All trademark, product names, company names, domain names and logos appearing on the Website are the property of the Licensor and the Licensee acknowledges such ownership.

2. LICENCE

2.1       The Licensor hereby grants to the Licensee a non-exclusive licence for the Term to use the Database for the Permitted Use within the Territory in accordance with the terms of this Licence.

2.4       The Licensee agrees that:

2.4.1   it shall not use the Database, Materials and/or any Derivative Work or any part thereof for any use other than the Permitted Use; and

2.4.2   it shall not provide, lend, make available or allow the use of the Database, Materials and/or Derivative Works or any part thereof to or by any Third Party

2.5       The Licensee shall ensure that its employees, agents and/or Clients do not transfer and/or transmit the Database, Materials and/or any Derivative Work or any part thereof outside the Territory;

2.6       The Licensee shall not use the Database, Materials or Derivative Works or any part thereof in connection with the production or publication of any directory, whether local regional or national, in any format where the directory’s main content is classified as “white pages” listings, telephone directory or any other database product or services.

2.7       The Licensee acknowledges that the Licensor may include in the Database a reasonable number of Dummy Data Records, in accordance with reasonable industry standards, for the purposes of monitoring any unauthorised use of the Database.  The Licensee agrees not to alter, delete or seek to alter or delete such records from any Database, Materials and/or Derivative Works.

3. DURATION

3.1       This Licence shall commence on the Commencement Date and continue for the Term.

3.2       The Licensor reserves the right to treat any use by the Licensee of any of the Database, Materials or any Derivative Work which is outside or exceeds the scope of the Licence, or takes place otherwise than during the Term as an additional Order by the Licensee. The Licence Fee and/or Price of the additional Order shall be calculated as Single Use or Multiple Use accordingly and the Licence Fee and/or the Price shall be discharged by the Licensee in accordance the terms of this Licence.

4. LICENCE FEE AND PRICES

4.1       Subject to clauses 4.2 below, the Licence Fee and Price to be paid by the Licensee for the Licence and/or Materials are that displayed on the Website.

4.2       The Licensor reserves the right to vary the Licence Fee and/or Price without prior notice to the Licensee.

4.3       All Prices published on the Website and all payment made under this Licence are in pounds Sterling unless agreed in writing by the Licensor.

4.4       All sums payable under this Licence are deemed to be exclusive of VAT and the Licensee agrees to pay VAT or any substitution or replacement therefore at the rate prescribed by law.

5. PAYMENT TERMS

5.1       The Licensee shall pay to the Licensor the Licence Fee and/or Price and/or Delivery Charge at the time of placing an Order by credit or debit card [facility on the Website or] by telephone and/or by cheque, together with any other charges in accordance with the terms of this Licence.

5.2       No Order shall be accepted by the Licensor unless full payment has been made and the Licensor funds are cleared.

5.3       All sums payable under this Licence are deemed to be exclusive of VAT and the Licensee agrees to pay VAT or any substitution or replacement therefore at the rate prescribed by law.

5.4       Time of payment shall be of the essence and without prejudice to any other rights the Licensor may have.

5.5        The Licensor shall be entitled to charge interest at the rate of 3% above the Bank of England base rate from the date upon which the Licence Fee and/or the Royalty Fee was due to the date of actual payment.

5.6       Without prejudice to its other rights and remedies, the Licensor shall be entitled, by serving notice of suspension on the Licensee, suspend the licence granted to the Licensee hereunder until all such sums have been received by the Licensor in full.

6. DELIVERY AND CANCELATION

6.1.      The Database, Derivative Works and/or Materials shall be provided in the format specified in the Order Form

6.2.      The Database, Materials and/or Derivative Works shall be delivered at the times and dates set out in the Order Form

6.3       In the event that the Materials are damaged or lost during transit, the Licensor shall make available additional copies of the Materials to the Licensee.

6.4       Any damage or defects to the Database, Derivative Works and/or Materials or shortfalls must be notified to the Licensor within 14 days of the delivery. The Licensee acknowledges and agrees that if notice is not served within 14 days of the delivery shall not be able to consider and shall not be liable in respect of any claims relating thereto.

6.5       If the Licensee should cancel an Order in full or in part before Delivery of the Database, Materials and/or Derivative Works  then the Licensee shall remain liable for all the charges as detailed in the Order Form but the Licensor may at its sole discretion for any reason whatsoever reduce the amount owed.

7. INTELLECTUAL PROPERTY RIGHTS

7.1       The Licensee hereby acknowledges the Licensor’s ownership and proprietary rights in        the Intellectual Property Rights and agrees and acknowledges that:-

7.1.1   it will not obtain or be granted any rights whatsoever in the Intellectual Property Rights, except as expressly granted to it under this Licence;

7.1.2   it will not register or attempt to register any of the Intellectual Property Rights in any jurisdiction;

 

8. CONFIDENTIALITY

8.1.     The Licensor and the Licensee agree that all Confidential Information disclosed by either to the other under this Licence or in the course of negotiations leading up to this Licence shall be kept secret and confidential and shall not be disclosed and/or used for any purpose other than that required or permitted by this Licence.

8.2.     The Licensor and the Licensee agree to promptly notify the other if any Confidential Information is required to be disclosed by the operation of law and shall co-operate fully with the disclosing party regarding the manner of such disclosure.

8.3.     The obligation of confidentiality shall not apply to any information which is or becomes generally known to the public otherwise than as a result of a breach of the provisions of this Licence or which is already lawfully in or which becomes lawfully in to the receiving party’s possession or is independently developed by the receiving party. The Licensor and the Licensee agree that each shall promptly notify the other in the event that they become aware of any unauthorised use of Confidential Information.

9.         ADVERTISING STANDARDS AND DATA PROTECTION

9.1.     The Licensor and the Licensee will use all reasonable endeavours to comply with the Data Protection Act 1998, British Codes of Advertising and Sales Promotion, DMA UK Direct Marketing Code of Practice, DMA Email Marketing Best Practice Guidelines June 2007 and/or any other re-enactment or amendment thereof and such any other codes of advertising standards as may be published from time to time.

9.2.     Nothing in this Licence shall prevent either the Licensor or the Licensee from complying with their respective legal and regulatory obligations including without limitation the Consumer Credit Act 1974, Data Protection Act 1998 and/or any other statutory re-enactment or amendment thereof

9.3      The Licensee agrees to undertake and maintain all necessary notifications required to enable it to use the Database, Derivative Works and/or Materials as required by the Data Protection Act 1998 or any statutory re-enactment or modification thereof.

9.4      The Licensee agrees not to use the Database or Derivative Works in connection with the delivery of any communication of any defamatory malicious illegal or threatening contents.

10. WARRANTIES

10.1.   The Licensor warrants that:

10.1.1      it has the full power and authority to enter into and perform this Licence;

10.1.2      it shall perform the Services with reasonable diligence, care and skill and at least to that degree of care and skill expected of a skilled professional competent in the field covering the Services and in accordance with the Licence;

10.1.5      all information, data and materials provided to the Licensee will be, to the best of its knowledge, accurate, complete in all material respects and fit for the purpose;

10.1.6      the Database, Materials and/or Derivative Works shall have been compiled in accordance with standards normally applied to the industry;

10.1.9      it has obtained and will maintain in force all necessary licenses consents and permissions for the use of the Database and the Derivative Works.

11. E-MAIL

11.1    Where the Database includes e-mail addresses or e-mail data, the following provisions shall apply in respect of that Database:

11.2    If the Licensee wishes the Licensor to exclude certain criteria from the range of criteria the Licensee must provide a suppression file to the Licensor that clearly states the request, prior and as part of the Order.

11.3    If the Licensee wishes to exclude general e-mail addresses from the e-mail Database field the Licensee must request this prior to and as part of the Order.

11.4    E-mail addresses are prone to frequent change, as well as being unreachable for a number of technical and other reasons(such as, but not limited to, account disabled, mailbox full, limit on message size, anti-spam policy, firewall). The Licensor shall not be responsible or liable for any and all e-mail addresses that prove to be undeliverable save that where the number of undeliverable addresses exceeds [10% of the Database supplied] and subject to the Licensee providing evidence of non-delivery within 30 days of the Commencement Date. The Licensor shall use reasonable endeavour to provide additional e-mail addresses in order to ensure that the percentage of undeliverable e-mails does not exceed the percentage stated above.

11.5    The Licensor’s warranty stated in clause 11.4 above shall not apply where the Licensee uses a method of delivery that has not been approved in writing by the Licensor.

11.6    The Licensor reserves the right to require the Licensee to cease or modify use of the e-mail Database where the Licensor discovers that the content of the e-mails sent by the Licensee is in the Licensor absolute opinion inappropriate or misleading.

11.7    Where the Licensee procures the use of the e-mail Database to send e-mails, the Licensee must ensure that the recipient is given a simple means to opt-out of receiving further communications and the Licensee must forward to the Licensor the details of any and all recipients who do exercise their right to opt-out including any and all comments that may be made by such recipients in an excel or comma separated format.

11.8    The Licensee agrees that it shall keep the Licensor indemnified in respect of any claim for costs, damages or expenses as a result of any breach of its obligations under this Licence or as a result of a breach of the law, Term 9 of this agreement or any statutory re-enactment or amendment thereof.

12. AUDIT

12.1.   During the Term of this Licence and for a period of 3 months thereafter the Licensee will allow its data processing facilities procedures and documentation to be inspected by the auditors of the Licensor in order to ascertain compliance with the relevant laws of the United Kingdom and the terms of this Licence provided that such audit shall (a) be conducted within the Licensees normal business hours; (b) cause minimum disruption to the Licensees business; and (c) is subject to the Licensor agreeing to comply with any obligations of confidentiality owed by the Licensee to any Third Party, provided always that the Licensee has prematurely notified the Licensor of such obligations.

13. LIMITATION OF LIABILITY          

13.1    Except in respect of death or personal injury by the Licensor’s negligence, the Licensor shall not be liable to the Licensee by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever whether caused by the negligence of the Licensor, its employees or agents or otherwise) which arise out of or in connection with the supply of Service by the Licensor, and the entire liability save for the terms of this Licence be excluded to the fullest extent permitted by law.

13.1    The Licensor shall not be liable to the Licensee or any other party for any cost, damage or expense howsoever arising as a result of any Virus irrespective of the source of that Virus.

14. LICENSEE COMMUNICATIONS

14.1    The Licensee warrants that any communications posted on or sent to the Website do not infringe any patent, trademark, trade secret, confidentiality, copyright or other rights of any third party.

14.2    The Licensee’s details shall be recorded by the Licensor in accordance with the Licensor’s privacy policy and used for internal purpose only.

14.3    The Licensor warrants that all Licensee’s details shall remain confidential information and the Licensor shall only disclose such information to a third party, other than Licensor’s of the Licensor, with the prior written consent of the Licensee or as required by Law,
                       

15. INFORMATION AND DOWNTIME

15.1    None of the Information may be copied, stored in a retrieval system, reproduced, transcribed, changed or altered in any way or re-transmitted in any form or by any means without the prior written consent of the Licensor.

15.2    The Licensor reserves the right in its absolute discretion without prior notice to the Licensee, to alter, amend, delete or remove some or all of the Information on the Website.

15.3 You acknowledge that the internet or our systems, servers and equipment may from time to time be inoperative in full or in part as a consequence of but not limited to mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connection problems or any function beyond the Licensor’s control. The Licensee also acknowledge that access to the site may be terminated, interrupted or restricted at any time for any reason. The Licensor shall not be liable for any failure of the internet or any inability to provide continuous, error free, uninterrupted services under any circumstances.

16. COPYRIGHT

16.1    The copyright relating to the Information belongs to the Licensor and may not be copied, distributed, published, licensed or reproduced in any way whatsoever without the prior written consent of the Licensor.

17. USE BY MINORS

17.1    The Licensor cannot prevent users under the age of 18 years from visiting the Website. The Licensor requires the Licensee to be over the age of 18 and the placing of an Order will be deemed to be a representation that the Licensee is over 18 years of age.

18. ERRORS

18.1    The Information on the Website, Customer Order, Database, Derivative Works and/or Materials may contain technical inaccuracies, typographical or other errors. Any and all liability of the Licensor howsoever arising form such inaccuracies or errors is hereby expressly excluded to the fullest extent permitted by law and the Licensor shall not be bound by any such inaccuracies or errors howsoever arising.

18.2 The Licensor have used reasonable endeavours to ensure that the Information is as accurate as possible and any use of or access to the Website by Licensee is entirely at their own risk.

19. LINKS TO OTHER WEBSITES

19.1    The Website contains links to other websites owned and operated by third parties and those links are for the convenience of Licensees and the Licensor makes no representations regarding the operation or content of such websites and the Licensor accepts no responsibility for any loss, costs, damages orexpenses whatsoever resulting from Licensees accessing those websites.

20. INDEMNITY

20.1    The Licensee agrees to indemnify and hold harmless the Licensor, its officers, directors, employees, agents or subcontractors against any and all claims, actions or demands whatsoever resulting from the use or alleged use of the Information or the Website.

21. TERMINATION

21.1       Either party may terminate this Licence at any time on written notice to the other if the other:

21.1.1   is in material or persistent breach of any of the terms of this Licence and either that breach is incapable of remedy, or the other party fails to remedy that breach within 14 days after receiving written notice requiring it to remedy that breach; or

21.1.2   is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

21.2       Termination by either party in accordance with this clause 21 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.

21.3       Upon termination for any reason:-

21.3.1  all rights granted to the Licensee under this Licence shall cease save for the rights granted to the Licensee under the Sub-licence;

21.3.2  the Licensee shall cease all activities authorised by this Licence;

21.4.3  the Licensee shall immediately destroy or return to the Licensor (at the Licensor’s option) any and all copies of the Database and/or Derivative Works in whatever form then in its possession, custody or control and, in the case of destruction, certify to the Licensor that it has done so.

21.4       The Licensor may terminate this Licence forthwith without notice if there is any change in the  Law, which may affect the lawfulness of providing Database in accordance with the Licence terms and/or any change or amendments to the Data Protection Act 1998, British Codes of Advertising and Sale Promotion, DMA UK Direct Marketing Code of Practice, DMA Email Marketing Best Practice Guidelines June 2007 and/or any other re-enactment or amendment thereof and such any other codes of advertising standards as may be published from time to time.

22. FORCE MAJEURE

22.1    For the purposes of this clause a Force Majeure event means any circumstance or event not reasonably foreseeable at the date of this Licence including but without limitation strikes, computer viruses, civil commotion, riot, war, act of terrorism, fire, explosion, storm, flood, earthquake or other natural disaster.

22.2    If and to the extent that either party to this Licence is prevented or delayed by a Force Majeure event from performing its obligation or any of them under this Licence it shall promptly notify the other party specifying the nature of the Force Majeure event and specifying the period for which it is estimated that the prevention or delay will continue.  The Licensor and the Licensee agree that each shall use its reasonable endeavours to assist the other in resuming full performance of the obligations under the Licence but during the period of notice the affected party shall be relieved of its obligation to perform the terms of this Licence without the other party having any right to claim compensation as a result therefore and without any payment being due under the Licence Fee.

22.3    If the Force Majeure event continues for a period of 30 days or more following notification either party may serve upon the other 10 working days notice of termination of the Licence and at the end of the period of 10 working days the Licence will be deemed to be terminated but without prejudice to any subsisting rights or remedies under the Licence.  Neither party shall be entitled to claim against the other for any costs claims liabilities or demands in respect of a Force Majeure event whether in respect of obligations under this Licence or otherwise.

 23. NOTICES

23.1.    A notice to be given hereunder shall be in writing and may be delivered personally or by sending it by pre-paid first class post to the intended recipient’s address given herein or to any other address supplied with reference to and in accordance with this clause to the other party hereto at their address for the purposes of service under this Licence. A notice delivered personally shall be deemed to have been served on delivery. A notice sent by post shall be deemed to have been served at an address within the United Kingdom at the expiry of 48 hours from the date of posting and at an address outside the United Kingdom at the expiry of 72 hours from the date of posting.

24. WAIVER

24.1    No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

25. SEVERABILITY

25.1    If any provision of this Licence is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

26. GENERAL

26.1    If any term or provision of this Licence is held invalid illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed from this Licence and the remainder of the provisions hereof shall continue in full force and effect as if this Licence had been agreed with the invalid illegal or unenforceable provision eliminated.

26.2    The Licensor may without the consent of the Licensee sublicense its rights or obligations or any part of this Licence.

27. ENTIRE AGREEMENT

27.1    This Licence (together with any terms set out in the Order) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

28. THIRD PARTIES

28.1    No third parties shall have any rights or benefits whatsoever under this Licence.

29. LAW

29.1    The Website is owned and controlled by the Licensor from its base in the United Kingdom. The Licensee must ensure their compliance with any local laws or regulations relevant to their particular locality. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby agree to submit to the exclusive jurisdiction of the English courts.