Croner-i Ltd, a company registered in England and Wales with company registration number 10878116 having its registered office at The Peninsula, Victoria Place Manchester M4 4FB (“the Supplier”) is the provider of looseleafs, bound books, CDs, newsletters, magazines, books that the Supplier, in its sole discretion, chooses to provide from time to time whether as one off purchases or through subscriptions (“the Goods”). The Supplier is the provider of a variety of services including Digital Content, Advice Lines Services, update services that the Supplier, in its sole discretion, chooses to provide from time to time (“the Services”).
The customer (as more fully identified on any documentation including the Order Form and/or the invoice) (“the Customer”) wishes to purchase the Goods and/or the Services that the Supplier is willing to supply strictly subject to the Terms and Conditions set forth below.
Herein and after each referred to as a “Party” and collectively as “Parties”
In these Terms and Conditions, unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vice versa;
- words importing persons include firms, companies and corporations and vice versa;
- references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
- reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
- 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;
- the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
- 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;
- where the word ‘including’ is used in this Agreement, it shall be understood as meaning ‘including without limitation’;
- a reference to a party includes its successors or permitted assigns;
- a reference to writing or written includes faxes and e-mails.
In these Terms and Conditions the following words and expressions shall have the following meanings:-
“Agreement” comprises some or all of:
- these Terms and Conditions;
- Order Form;
- Schedule 1 and 2 to these Terms and Conditions and;
- any other addenda or additional documents agreed by the parties in writing from time to time, to be part of the agreement between them.
In the event of conflict between the provisions of the above documents, the order of precedence shall be as expressed above, unless expressly agreed to the contrary.
“Advice Lines Services” shall mean telephone advisory services on a variety of areas of business management and practice that operates during office hours, between 8.00 am and 6.00 pm Monday to Friday excluding bank holidays (9.00 am to 5.00 pm in respect of tax queries); and which are provided subject to the Conditions and Restrictions on use in Schedule 2;
“Authorised Users” shall mean the Customer’s current personnel who are permitted to access the Digital Content in accordance with the provisions of this Agreement or as otherwise notified to the Customer by the Supplier.
“Commencement Date” shall mean the date at which the Supplier accepts the Customer’s Order Form or carries out actions consistent which this Agreement coming into force, whichever occurs first.
“Confidential Information” shall mean information in any form (whether oral, written, graphic, electronic, computerised or otherwise) which is disclosed by or on behalf of the Disclosing Party to the Recipient on or after the date of this Agreement which is conspicuously marked 'confidential' (or similar) at the time of its disclosure, or is disclosed on a confidential basis, or which in the reasonable appreciation of the Recipient by reference to the Disclosing Party’s’ operations, inventions, systems, processes, methodologies, plans, know-how, trade secrets, commercial or financial affairs or other business, is deemed confidential.
“Data Controller” means the organisation responsible for determining the purposes for which Personal Data (as defined in the Data Protection Act 1998) is processed.
“Data Processor” means in relation to Personal Data, any person (other than an employee of the Data Controller) who processes data on behalf of a Data Controller).
“Digital Content” shall include but not be limited to online information, e-books, e-newsletters and e-magazines.
“Disclosing Party” shall mean the Party to this Agreement that discloses Confidential Information directly or indirectly to the other Party.
“DP Legislation“ means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any legislation implementing the Data Protection Directive 95/46/EC of 24 October 1995 or the Privacy and Electronic Communications Directive 2002/58/EC of 12 July 2002.
"Force Majeure” shall mean any cause affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the generality of such terms) government regulations, fire, flood or any disaster.
"IPR" shall mean intellectual property rights comprising all patents, copyright, trademarks, service marks, design rights, domain names, (whether registered or unregistered), trade secrets, rights in know-how, database rights, proprietary information rights and all other intellectual property rights as may exist anywhere in the world including: i) all registrations and pending registrations relating to any such rights and the benefit of any pending applications for any such registrations; and ii) all extensions and renewals of any such rights.
Order Form” shall mean the Supplier’s standard document which may include a Quotation and which the Customer sends to the Supplier reflecting the Customer’s offer to purchase the Goods and/or the Services for the price indicated therein.
“Quotation” shall mean a non-binding document issued by the Supplier to the Customer to provide an indication of the price payable for the Goods and/or the Services.
“Recipient” shall mean the Party to this Agreement that receives Confidential Information directly or indirectly from the other Party.
3 Subscriptions Goods and/or Services
3.1 New sales: The subscription period begins on the Commencement Date and unless otherwise agreed in writing between the Parties, shall last for a minimum of 12 (twelve) months.
3.2 Renewal sales: The subscription shall continue automatically for successive periods of 12 (twelve) months unless terminated by the Customer giving the Supplier written notice of its intention to terminate the subscription no less than 6 (six) calendar months before each anniversary of the Commencement Date.
3.3 New sales multi-year: The subscription period begins on the Commencement Date and shall last for the minimum period of years indicated on the Order Form. Except where the Customer elects to settle the subscription in full, the Supplier’s invoices shall be raised for consecutive periods of maximum 12 (twelve) months at a time, until the expiry of the minimum period of years indicated on the Order Form. The Customer understands that such payment mechanism is not intended to change the nature of the multi-year subscription offered by the Supplier such that it is interpreted or construed to become an annual subscription by reference to the instalment period and notwithstanding any termination prior to the expiry of the minimum period of years indicated on the Order Form (save where such is effected by the Supplier in accordance with clause 3.6) the Customer shall remain liable to settle any outstanding subscription price to the end of that subscription period ending on the expiry of the minimum period of years indicated on the Order Form.
3.4. Renewal sales multi-year: Upon expiry of the minimum period of years indicated on the Order Form, and in the absence of the Supplier having received from the Customer written notice of its intention to terminate the subscription no less than 6 (six) calendar months before the expiry of the minimum period of years indicated on the Order Form, the subscription shall continue automatically for the same period of years as the initial minimum period unless another period has been agreed between the Parties prior to such expiry date.
3.5 The Supplier will notify the Customer in writing before each anniversary of the Commencement Date of the price payable for the forthcoming subscription period and, where the subscription relates to Digital Content, of any change to the licence terms and conditions applicable to that Digital Content.
3.6 The Supplier shall have the right to terminate this Agreement, at any time, by providing the Customer with 45 (forty five) days prior written notice of its intention to do so.
4 Subscription Goods Payment
4.1 The price payable shall be the total price specified in the Supplier’s price list as at the Commencement Date, less any discounts agreed in advance by the Supplier. All amounts stated are exclusive of VAT (Value Added Tax) at the rate in force at the date any payment is required from the Customer. The cost of packaging, postage and delivery shall be charged in addition and shall be itemised separately on any invoice.
4.2 The price payable for subscription Goods following the first and any other subsequent anniversary of the Commencement Date shall be the Supplier’s renewal price as at that anniversary of the Commencement Date unless otherwise agreed by the Supplier in writing. The renewal price shall include any reasonable increase in price that the Supplier has in its sole discretion determined shall apply.
4.3 The Supplier shall invoice the Customer on the Commencement Date and on each subsequent anniversary of the Commencement Date and the Customer shall pay the subscription price identified on the invoice within 30 (thirty) days of the invoice date, and thereafter within 30 (thirty) days of that year’s invoice date.
4.4 Where payment is not made in accordance with this clause 4 and provided that the invoice (or part thereof) is not subject of a genuine dispute between the Parties, the Supplier shall be entitled to charge interest accruing daily on the outstanding amount at the rate of 4% per annum above the National Bank of England base rate for the time being in force, from the due date until the outstanding amount is paid in full. The Supplier reserves the right not to make any delivery until payment is received.
4.5 The Customer shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
4.6 The Supplier may accept payment made in instalments from the Customer, provided that such payment mechanism has been agreed between the Parties in writing in advance of the Commencement Date. For the avoidance of doubt, such acceptance by the Supplier shall remain in its sole discretion and shall not be binding on the Supplier for any subsequent anniversary of the Commencement Date with the exception of the period for which the acceptance relates to.
4.7 The Parties agree that clause 4.6 is not intended to change the nature of the annual subscription offered by the Supplier such that it is interpreted or construed to become a monthly or quarterly subscription by reference to the instalment period and notwithstanding any termination prior to the anniversary of the Commencement Date (save where such is effected by the Supplier in accordance with clause 3.6) the Customer shall remain liable to settle any outstanding subscription price to the end of that subscription period ending on the relevant anniversary of the Commencement Date.
4.8 In circumstances where the Customer fails to make payment in respect of any instalment as agreed with the Supplier, the Supplier reserves the right to accelerate the payment provision and demand the settlement of all outstanding subscription price to the end of that subscription period in addition to it exercising its rights under clause 4.4.
4.9 The Supplier reserves the right, in its absolute discretion to remove, insert, change or alter in whole or in part and at any time the contents of its Goods portfolio available under any subscription without prior notification to the Customer.
5 One off purchases of Goods
5.1 The Supplier shall deliver the Goods to the Customer to the address set out in the Order Form or such other address as may be agreed in writing between the Parties.
5.2 For the avoidance of doubt, the delivery date or other date given under this Agreement is no more than an estimate and time shall not be of the essence.
5.3 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shall include the date of the order, type and quantity of Goods, book titles and/or ISBN and if the order is being delivered by instalments the outstanding balance of Goods remaining to be delivered.
5.4 Delivery of the Goods shall be completed on the Goods’ arrival at the delivery address.
5.5 The risk in the Goods shall pass to the Customer on the delivery date.
5.6 Title in the Goods shall not pass to the Customer until the Supplier has received full payment in respect of the Goods, whether or not delivery has been made.
5.7 The Supplier shall invoice the Customer on the Commencement Date and the Customer shall pay the price identified on the invoice within 30 (thirty) days of the invoice date. All amounts stated are exclusive of VAT (Value Added Tax) at the rate in force at the date any payment is required from the Customer. The cost of packaging, postage and delivery, if applicable, shall be charged in addition and shall be itemised separately on any invoice.
5.8 Where payment is not made in accordance with this clause 5 and provided that the invoice (or part thereof) is not subject of a genuine dispute between the Parties, the Supplier shall be entitled to charge interest on the outstanding amount at the rate of 4% per annum above the National Bank of England base rate for the time being in force, from the due date until the outstanding amount is paid in full.
5.9 Until title to the Goods has passed to the Customer, the Customer shall: i) hold the Goods on a fiduciary basis as the Supplier's bailee; ii) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property; iii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; iv) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the delivery date; v) notify the Supplier immediately if it becomes subject to any of the events listed in clause 11; and vi) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
5.10 The Customer shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
5.11 The Customer acknowledges and agrees: i) that the Supplier has given the Customer a reasonable opportunity to inspect the Goods; ii) that the Customer has inspected the Goods; iii) that the Customer has satisfied itself as to the condition of the Goods; iv) that the Supplier has not given any warranty or condition as to the quality of or fitness for any purpose of the Goods; v) that all conditions or warranties, express or implied (whether by statute or otherwise) are expressly excluded; vi) that delivery of the Goods to the Customer shall be conclusive evidence that the Customer has examined the Goods and that the Goods are in conformity with the contract description, in good order and condition, of satisfactory quality and fit for any purpose for which they may be required.
5.12 The Supplier will, at its option, either make good by repair or by the supply of a replacement, defects that, under proper use appear in the Goods within a period of 14 (fourteen) days after the Goods have been delivered, provided that: i) the Customer notifies the Supplier in writing of the claimed defects immediately on their appearance; and ii) the Supplier is satisfied that the defects arise solely from faulty design (other than a design made, furnished or specified by the Supplier for which the Supplier has disclaimed liability in writing), materials or workmanship; and iii) the Goods claimed to be defective are returned to the Supplier at the Customer’s expense; iv) the repaired or replacement Goods will be delivered to the Customer at the original place of delivery, but otherwise subject to the provisions of this Agreement. The remedy provided in this clause 5.12 is without prejudice to the other provisions of this Agreement, including, without limitation, clauses 5.13, 5.14 and 5.15
5.13 The Supplier shall not incur or accept any liability concerning any representation made by the Supplier (or made on the Supplier’s behalf) to the Customer (or any person acting on behalf of the Customer) prior to the making of this Agreement where such representation was made or given in relation to: i) the correspondence of the Goods with any description; and/or ii) the quality of the Goods; and/or iii) the fitness of the Goods for any purpose(s) whatsoever (whether made known to the Supplier or not).
5.14 The Supplier shall not accept any liability to the Customer concerning any express term or provision of this Agreement where such term relates to 5.13i, 5.13ii, 5.13iii.
5.15 All terms, conditions or warranties implied by statutory or common law relating to 5.13i, 5.13ii, 5.13iii are excluded from the Agreement to the fullest extent permitted by law.
6 Digital Content Grant of Licence
6.1 The Customer is granted a personal, non-exclusive, non-transferable and time limited licence to access and use the Digital Content for the Customer’s core, primary, established and usual business activities.
6.2 The licence is granted strictly subject to the terms and conditions set out in Schedule 1 (as may be amended by the Supplier from time to time in its sole discretion) and otherwise subject to the terms and conditions of this Agreement will terminate automatically on the termination of this Agreement for any reason.
6.3 Access to the Digital Content shall be permitted strictly for the number of Authorised Users as set out in the Order Form, or as otherwise notified to the Customer by the Supplier. Unless otherwise stated, usage levels refer to the totality of different users who are required to access the service in the customer organisation.
6.4 Selected information packages include Digital Content versions of all/part of the service, service as an integral part of the overall service. The Customer will be provided with Digital Content containing the work and software and/or online access instructions as required enabling access and use through a computer or other electronic device as may be specified in the Order Form. Digital Content provided through any other digital delivery mechanism is supplied subject to the licence terms and/or in accordance with the provisions of this Agreement.
6.5 The Customer agrees to accept these terms prior to accessing and using Digital Content. Any such access and use of the Digital Content shall be treated as the Customer’s acceptance of the terms and conditions in this Agreement.
6.6 The Customer understands that for some Digital Content there are minimum system requirements which the Customer must meet prior to it being able to access or use the Digital Content in question and that the Customer will be responsible for ensuring that its systems are able to meet such requirements before purchasing the Goods and/or the Services.
6.7 The Customer shall issue passwords and other access information only to its Authorised Users and shall ensure that Authorised Users do not divulge their passwords or other access information to any third party.
6.8 The Customer shall ensure that in the event that an Authorised User leaves its employ their password and other access information is immediately revoked.
6.9 The Customer shall remain at all times in control of its access information and it shall remain responsible for any unauthorised access or other irregularity in respect of its account including those of its users whether currently or previously Authorised Users.
6.10 The Customer shall keep full and up-to-date records of all of its Authorised Users and shall provide the Supplier with details of these upon request. The Customer shall safeguard the IPR, Confidential Information and any other proprietary rights of Supplier or the Supplier’s licensors.
6.11 The Customer shall observe and use its best endeavours to ensure compliance with the Supplier's policies in relation to bribery, privacy and acceptable use as amended from time to time by Supplier.
7.1 In consideration of the Services to be provided by the Supplier to the Customer, the Customer shall pay the subscription service fee as set out on the invoice, to the Supplier in accordance with the terms and conditions of this Agreement.
7.2 The Supplier shall invoice the Customer on the Commencement Date and the Customer shall pay the subscription service fee identified on the invoice within 30 (thirty) days of the invoice date. All amounts stated are exclusive of VAT (Value Added Tax) and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Customer.
7.3 Where payment is not made in accordance with this clause 7 and provided that the invoice (or part thereof) is not subject of a genuine dispute between the Parties, the Supplier shall be entitled to charge interest on the outstanding amount at the rate of 4% per annum above the National Bank of England base rate for the time being in force, from the due date until the outstanding amount is paid in full.
7.4 The Customer shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.5 The Supplier reserves the right, in its absolute discretion to remove, insert, change or alter in whole or in part and at any time the contents of its Digital Content portfolio available under any subscription without prior notification to the Customer.
7.6 The Supplier expressly does not warrant that any result or objective whether stated in this Agreement or not shall be achieved, be achievable or be attained at all or by a given date or any other date. For the avoidance of doubt time shall not be of the essence in this Agreement.
7.7 Except in the case of death or personal injury caused by the Supplier’s negligence, the Supplier’s liability under or in connection with the Services under this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the annual subscription service fee paid to the Supplier under this Agreement.
7.8 Subject to clause 7.7 the Supplier shall not be liable to the Customer whether in contract, tort, negligence, breach of statutory duty, misrepresentation or otherwise, under or in connection with this Agreement for any : (i) loss of contracts, loss of profits, loss or reduction to goodwill, loss of opportunity, loss of revenue and/or anticipated savings, loss of business opportunity, destruction of data, punitive damages or losses suffered by any third parties irrespective of whether or not such loss is direct, indirect, special or consequential; (ii) indirect, consequential or special loss whether or not the Supplier was aware of circumstances giving rise to any such loss.
7.9 The Customer shall indemnify and hold harmless the Supplier from and against all Claims and Losses arising from loss, damage, liability, injury to the Supplier’s and/or its employees, consultants, or other representatives and third parties, infringement of third party intellectual property rights or third party losses by reason or arising out of the Customer or its Authorised Users access and use of Digital Content outside of that expressly permitted by this Agreement, or any information or other materials supplied to the Supplier by the Customer within or outside the scope of this Agreement. “Claims” shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise) and “Losses” shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
7.10 Each of the Parties acknowledges that in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
7.11 Nothing in this Agreement excludes liability for fraud or fraudulent misrepresentation.
8 Intellectual Property Rights
8.1 The Customer acknowledges that all IPR in the Goods and/or the Services are vested into and shall remain vested in the Supplier or its licensors at all times. The Customer warrants that it shall not engage in any unauthorized use, copying, renting or distribution or other act restricted by copyright in respect of any Goods and/or Services, or part thereof, in which copyright subsists under this Agreement.
8.2 The Customer warrants that it and all of its Authorised Users shall observe the obligations under this Agreement and ensure that its actions do not infringe the IPR of the Supplier (and any relevant third parties) in the Digital Content or otherwise breach the license granted to it under this Agreement.
8.3 The Customer and its Authorised Users shall ensure that any infringement or suspected infringement of the Supplier’s IPR by third parties shall be notified to the Supplier immediately. The Customer warrants that it and its Authorised Users shall maintain observance of this Agreement and that any unauthorised use of the Digital Content and/or failure to comply with the terms and conditions specified in this Agreement by it or any of its Authorised Users shall be notified to the Supplier immediately and that the Customer shall ensure that such activity ceases immediately and any recurrence prevented.
8.4 The Customer shall not make any admission as to liability or compromise or agree to any settlement of any claim or alleged claim against the Supplier in relation to IPR infringement without the prior written consent of the Supplier.
9 Technical Assistance and Support
9.1 The Supplier shall, throughout the duration of this Agreement, provide the Customer with the technical advice and support necessary to access the Digital Content provided by the Supplier (the “Assistance”). The Supplier shall ensure that appropriately qualified members of staff shall be available during normal working hours on working days to deal with, process and act upon enquiries.
9.2 Although the Supplier will use its reasonable endeavours to provide the Assistance no warranty or representation is made regarding the availability of the Assistance.
10.1 The Recipient shall keep the Confidential Information of the Disclosing Party confidential and secret, whether disclosed to directly or indirectly received by the Recipient. The Recipient shall only use the Confidential Information of the Disclosing Party for the purpose of performing the Recipient’s obligations under this Agreement. The Recipient shall inform its officers, employees and agents of the Recipient’s obligations under the provisions of this clause 10, and ensure that the Recipient’s officers, employees and agents meet the obligations.
10.2 The obligations of clause 10.1 shall not apply to any information which: i) was known or was in the possession of the Recipient before it was provided to the Recipient by the Disclosing Party; ii) is, or becomes, publicly available through no fault of the Recipient; iii) is provided to the Recipient without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure; iv) was independently developed by the Recipient (or on its behalf) who had no direct access to, or use or knowledge of the Confidential Information supplied by the Disclosing Party; or v) is required to be disclosed by law, a court order of competent jurisdiction or any governmental or regulatory authority.
10.3 Neither Party shall disclose to any third party Confidential Information belonging to the other Party without prior written consent of the other Party (save that disclosure shall be permitted within the Supplier’s group of companies or to its professional advisers, agents and sub-contractors on a need to know basis).
10.4 This Clause 10 shall survive the termination of this Agreement for a period of 5 (five) years.
11.1 Either Party may (without prejudice to its own rights) terminate this Agreement at any time forthwith by notice in writing to the other, if: i) a voluntary agreement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of the other Party's assets or undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order; or ii) the other Party defaults in due performance or observance of any of its obligations hereunder and (in the case of a remediable breach) fails to remedy the breach within 30 (thirty) days of receipt of a notice to do so.
11.2 The Customer may terminate this Agreement by giving the Supplier written notice of its intention to terminate the subscription no less than 6 (six) calendar months before: (i) each anniversary of the Commencement Date; or (ii) the expiry of the minimum period of years indicated on the Order Form. The notice shall take effect to terminate the Agreement on: (i) the next immediate anniversary of the Commencement Date; or (ii) the expiry of the minimum period of years indicated on the Order Form.
11.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
11.4 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
12 Data Protection
12.1 Each party acknowledges that the Customer operates as a Data Controller and the Supplier as the Data Processor in respect of the Personal Data of the Authorised Users.
12.2 Each party shall at all times comply with the DP Legislation and any other applicable data protection legislation and, in particular, the Supplier agrees to: (i) maintain technical and organisational security measures sufficient to comply with the obligations imposed on the Customer as Data Controllers under the DP Legislation and to maintain a designated point of contact for the term of this Agreement; (ii) only process the Personal Data for and on behalf of the Customer for the purpose of performing its obligations hereunder and in accordance with any other instructions issued by the Customer in writing from time to time; and (iii) notify the Customer of any security breach to allow for appropriate and timely action.
12.3 The Customer represents and warrants that it has obtained all necessary consents and permissions to enter into and perform its obligations under this Agreement. To the extent required by any applicable law, rule, regulation, or contract, the Customer shall obtain all necessary permissions from its Authorised Users or its own employees, agents, or contractors (as applicable) that will allow the Supplier, in performing its obligations under this Agreement, to store, transmit, use, and otherwise process any Personal Data delivered to the Supplier under this Agreement.
13.1 Entire Agreement — This Agreement contains the whole agreement between the Parties in respect of the subject matter thereof and supersedes and replaces any prior written or oral agreements, representations or undertakings between them. 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.
13.2 Variation — This Agreement shall be capable of being varied only by a written instrument signed by a duly authorised officer or other representatives of the Parties.
13.3 Severability — This Agreement is severable in that if any provision (or part provision) is determined to be illegal, void or unenforceable by any court of competent jurisdiction such provision (or part provision) shall be deemed 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 or the validity or enforcement of this Agreement.
13.4 Waiver — Unless otherwise agreed in writing, no failure or delay by the Supplier to exercise any right, power, privilege or remedy available to it hereunder, shall impair the same or operate as a waiver of it nor shall any single or partial exercise of any right, power, privilege or remedy preclude any other or further exercise thereof or the exercise of any other right, power, privilege or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
13.5 Third party rights — For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
13.6 Partnership, Agency, Employment Relationship — This Agreement does not create or imply any relationship in the nature of partnership, agency, joint venture, fiduciary relationship, employment or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
13.7 Force Majeure - Neither Party shall have any liability under this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If any such circumstances continue for a continuous period of more than 3 (three) months, either Party may terminate this Agreement by written notice to the other Party.
13.8 Assignment - Subject to the foregoing, the Customer may not assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all or its rights and obligations under this Agreement without the prior written consent of the Supplier. The Customer may however assign and transfer all of its business provided that the assignee undertakes in writing to the Supplier to be bound by the obligations of the assignor under this Agreement. The Supplier shall be permitted to sub-contract the provision of the Services or any part thereof without the prior written consent of the Customer.
13.9 Notices -Written notice for the Supplier shall be sent to: Customer Services Manager:145 London Road, Kingston upon Thames KT2 6SR. Written notice to the Customer shall be sent to the invoice address that is used for the Customer.
13.10 Governing law and jurisdiction — This Agreement shall be governed and construed in accordance with the laws of England and Wales. The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
SCHEDULE 1 - LICENCE CONDITIONS AND RESTRICTIONS ON USE FOR THE DIGITAL CONTENT
1. The Customer shall immediately inform the Supplier of any unauthorised access to the Digital Content of which the Customer becomes aware.
2. The Customer's use of the Digital Content carries no rights to IPR therein. For the avoidance of doubt all IPR in the Digital Content belongs to the Supplier and/or other specified copyright owners.
3. No commercial exploitation of the Digital Content is permitted by the Supplier beyond that stated in this Agreement and the Customer warrants that it shall not engage in any commercial exploitation of the Digital Content, unless expressly permitted by the Supplier in writing.
4. The Digital Content is provided on an ‘as is’, ‘as available’ basis and the Customer understands that the Digital Content does not purport to be a substitute for professional advice in specific circumstances or at all.
5. The Customer shall not remove or alter any copyright notices or any trademarks or other identifying marks of the Supplier (or those of any third parties having IPR in the Digital Content). The Customer shall not remove or alter any disclaimer or other notice as it appears on any part of the Digital Content. The Customer shall not introduce any virus or other harmful code, programme or file.
Below is an example of a copyright notice that may be used by the Supplier:
Crown Copyright legislation and other Crown Copyright material is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO or with the permission of the Controller of Her Majesty's Stationery Office.
European Communities copyright material is reproduced with permission.
The copyrighted material of other parties is reproduced with permission.
6. The downloading, storage and/or emailing of any content from/under the Digital Content portfolio is permitted by the Supplier strictly subject to the limitations imposed and/or notified (including by electronic means) from time to time by the Supplier.
7. The Customer may take copies of and store the Digital Content but only to the reasonable level required for the purposes of its own business and subject to any limit on the number and extent of copying as may be imposed by the Supplier from time to time.
8. The Customer may not use the Digital Content in any way that infringes the copyrights or proprietary interests therein.
SCHEDULE 2 - CONDITIONS AND RESTRICTIONS ON USE FOR THE ADVICE LINES SERVICES
1. The Customer shall be entitled to access the Advice Lines Services where the Customer is permitted to do so under the terms of this Agreement.
2. The Customer shall be provided with the appropriate access information which amongst others shall act as the means of identifying itself and/or its Authorised Users when accessing and/or using the Advice Lines Services.
3. Advice Lines Services are operated on standard tariff call charges. The Customer understands that the Supplier provides the Advice Lines Services on the condition that the Customer agrees for its telephone calls to be monitored / recorded for data retention in accordance with general policies (as amended from time to time) including without limitation for training and quality assurance purposes.
4. Advice Lines Services are provided to a standard at least as that expected of providers of similar services.
5. Advice is given on the understanding that neither the Supplier, nor the Supplier’s sub-contractors, representatives nor appointed agents are in business as a law firm, lawyer, legal consultant, accountant or tax consultant. The advice is provided in good faith and is given in accordance with the understanding of the call handler of the circumstances described by the Customer.
6. The Customer understands that the advice provided in connection with the Advice Lines Services is given in good faith and is based upon the information supplied by the Customer or its Authorised Users during the telephone call. The Supplier, its sub-contractors and/or its appointed representatives cannot be held liable for any loss suffered howsoever arising if inaccurate, incomplete or unclear information is given. The call handler may ask questions to elicit information to assist them in answering the Customer’s questions, but the call handler is not obliged to do so and a failure or omission to ask questions that may have altered the advice in connection with the Advice Lines Services will not cause the Supplier, its sub-contractors and/or its representatives to incur any liability whatsoever, howsoever arising.
7. The Customer understands that the advice given in connection with the Advice Lines Services is specific to the subject matter raised during the call in question and is not intended to be applied to other situations. In the event that the Customer chooses to apply the advice received to other situations, the Customer agrees that such shall be solely at its own risk and to the extent that it does so, the Supplier, its sub-contractors and/or its representatives shall not incur any liability whatsoever in respect of the same. The Customer understands that the Supplier, its sub-contractors and/or its representatives accept no liability whatsoever howsoever arising where inaccurate, incomplete or unclear information is provided to the call handler in respect of the Advice Lines Services
8. The Supplier reserve its right to decline to advise on complex matters where it is not feasible to advise by means of the Advice Lines Services. Advice Lines Services are not intended to cover written advice whether as a follow up to a call or otherwise. In such circumstances, the Supplier shall endeavour to provide an appropriate form of consultancy (which may be subject to additional fees) in order to assist the Customer; but the Supplier shall not be obliged to do so.
9. The Advice Lines Services may only be used by the Customer to obtain guidance, assistance, recommendations or other advice relating to their own organisation. Advice Lines Services are not to be made available by the Customer to organisations or consultants acting as advisers to third parties. The Customer agrees not to commercially exploit or resell the Advice Lines Services nor make unreasonable or excessive use of the same, nor act in an abusive, derogatory or intimidating manner towards the Supplier’s employees, consultants and/or other representatives. The Supplier reserves the right to refuse to provide Advice Lines Services to any Customer who, in the reasonable opinion of the Supplier, is abusive, aggressive or offensive. In such circumstances the Customer will not be entitled to a refund.
10. The Customer understands that the Supplier’s resources are not unlimited and further agrees that where in the reasonable opinion of the Supplier, the Customer’s usage of the Advice Lines Services is excessive, based upon call volumes, duration or type, the Supplier will notify the Customer of any such and where the Customer’s usage continues to be excessive then the Supplier reserves its right to limit access to the Advice Lines Services, to prioritise the Advice Lines Services to other clients of the Supplier and to increase the Customer’s subscription fees for continued access to the Advice Lines Services at any time during the Agreement.