STANDARD TERMS AND CONDITIONS FOR THE LICENSING OF DATA

1. LICENCE

1.1. We hereby grant to the Licensee a non-exclusive non-transferable Licence to use the Data strictly in accordance with these terms and conditions and any provisions set out in the Order Form solely for the purposes of Direct Marketing.
1.2. In consideration of the Licence granted herein the Licensee will pay the Licence Fee as set out in accordance with the Order Form.
1.3. The Licence Fee does not include delivery, packing and insurance which shall be payable in addition by the Licensee.
1.4. This Licence cannot be terminated once it has been accepted by the Licensee other than in accordance with these terms and conditions.
1.5. The Licence is personal to the Licensee and cannot be assigned by the Licensee in whole or in part without our prior written permission or allowed to become the subject of any charge, lien or encumbrance. We may sub-licence, assign, charge or otherwise transfer any of our rights or obligations hereunder upon written notice to you.

2. DELIVERY

2.1. We will use reasonable endeavours to have the Data ready for delivery by the agreed date for delivery, but we shall not be liable to the Licensee and it is agreed that the Licensee shall not have the right to terminate the Licence by reason of our failure to deliver by the agreed date for delivery.
2.2. Time for delivery is not of the essence and cannot be made of the essence unless it has been agreed by us in writing.
2.3. Unless otherwise agreed, the Data shall be delivered in one of the Available Formats (as agreed between us and the Licensee). The cost of importing the Data into alternative formats will be payable by the Licensee in addition to the Licence Fee.
2.4. Any cost of carriage, postage, package and insurance will also be payable by the Licensee and addition to the Licence Fee.

3. PAYMENT

3.1. The Licensee shall pay to us the Licence Fee and any other payments due under these terms and conditions no later than the 7th day following the date of the invoice sent to the Licensee by us. All sums payable under these terms and conditions are exclusive of VAT, which is payable in addition by the Licensee.
3.2. The time for payment of any sums payable under these terms and conditions shall be of the essence to these terms and conditions.
3.3. The Licensee will pay (on demand) interest on sums paid late at the rate of 6% above the base lending rate of Barclays Bank plc in force from time to time. Such interest shall accrue on a daily basis and shall be compounded quarterly. This right is without prejudice to any other remedy that we may have.
3.4. Without prejudice to any other rights that we may have, failing to make any payments on time by the Licensee will entitle us at our sole discretion to suspend the Licence with immediate effect, without incurring any liability to the Licensee for loss arising from such suspension.
3.5. Where the Data has been licensed for Single Use and the Licensee uses it more than once, the Licensee will be liable to pay the fee for the single use multiplied by the number of occasions the Data has been used.

4. QUANTITIES

4.1. We shall be entitled to deliver the Data by instalments of any size and in any order.
4.2. If we deliver more or less than the agreed quantity of Data the following provisions shall apply.
4.3. We shall have no liability to the Licensee in respect of the excess or shortfall unless the Licensee gives us notice of the excess or shortfall within 7 days of delivery of the Data.
4.4. In the case of short delivery we may at our own discretion either:
4.4.1. make good the shortfall by one or more further deliveries; or
4.4.2. reduce the Licence Fee by the same proportion bears to the agreed quantity.

5. INTELLECTUAL PROPERTY RIGHTS

5.1. Any intellectual property rights in the Data including copyright and database right shall remain our property and the property of our Data Supplier.
5.2. The Licensee acknowledges any existing intellectual property rights of our Data Supplier when information has been supplied to us and will not acquire any rights in relation to the information supplied by the Data Supplier including, but not limited to, data base right, copyright, trademarks other than expressly granted in this Licence. All rights not expressly granted to the Licensee under this Licence are expressly reserved to us.
5.3. Where the Licensee creates a work using the Data capable of attracting any intellectual property right, the Licensee acknowledges that it is only permitted to use such work under the terms of the Licence, and as a result not permitted to exploit such work whether commercially or otherwise.
5.4. The Licensee acknowledges and agrees that any goodwill generated by its use of the Data shall inure solely to our benefit.

6. CONFIDENTIALITY

6.1. All Data supplied to the Licensee under this Licence is supplied in strict confidence for the exclusive purposes of its internal business only, in addition the Licensee agrees to keep and treat as confidential any information relating to our business, affairs, finances or trade secrets and not to make use of such information for any purpose whatsoever. The Licensee warrants not to reveal such information to any person not employed in their own business (and then only to such employees who need to know for the purposes of this Licence).
6.2. The Licensee will not make any copies of the Data and agrees to store the Data separately from any other information in a secure environment. The Licensee will not permit employees or any other person to make a copy of the Data.
6.3. The Licensee undertakes to inform all employees with access to the Data of the restrictions and obligations under this Licence and ensure compliance by them. The Licensee will take all necessary steps at all times to ensue that no Third Party is able to reproduce the Data.
6.4. The Licensee will not disclose the Data to any customers or Third Parties except in accordance with this Licence or with our prior written consent.
6.5. Any information and documents supplied by us to the Licensee shall be and remain confidential and may not be disclosed to any Third Party without prior written authority from us.
6.6. The Licensee agrees to indemnify us on demand against all loss, damages, costs and expenses (including costs of enforcement) whatsoever caused by breach of this clause 6 by the Licensee.
6.7. The Licensee agrees to notify us immediately on becoming aware of any unauthorised use of the Data.
6.8. The obligations in this clause 6 shall not extend to any information which is: (i) in or comes into the public domain other than by breach of these terms and conditions; (ii) obtained from a Third Party without breach of this clause 6 or any other duty of confidence; or (iii) a disclosure which is required to be made by order of a court or regulatory authority of competent jurisdiction.
6.9. The obligations in this clause 6 shall continue notwithstanding the expiration or termination of the Licence.

7. USE OF DATA

7.1. The Licensee warrants that the purpose for which the Data is being used is only for Direct Marketing as stated in the Order Form. The Licensee may not use the Data other than as so specified nor remove any copyright or other proprietary notice on any of the Data.
7.2. If this is a Single Use Licence the Licensee agrees that once the Data has been used, the provisions of clause 11.3 shall apply.
7.3. It is agreed that, in the event of any use of the Data not authorised by us pursuant to these terms and conditions or any breach of this clause 7, the Licensee will compensate Knowledge Bank Solutions Ltd to the full value of the Data Order and such remedy will not limit any other remedy we may have.

8. RESTRICTIONS

8.1. The Licensee will ensure that the Data will not be used as part of any other product marketed by the Licensee that may compete with any product of ours or of our Data Supplier as determined by us, in our sole discretion. In particular, the Licensee will not use the Data or permit the use of the Data for purposes connected with the business of publishing business Directories or electronic media where the content includes classified advertising.
8.2. The Licensee agrees that the Data will only be used for Direct Marketing purposes and it will not be included in any product or service that is sold by the Licensee.
8.3. We may insert a number of dummy records (seeds) into the Data to allow us to monitor the number of uses of the Data and ensure that the conditions of this Licence are adhered to by the Licensee. It is agreed that these records will not be deleted by the Licensee.

9. WARRANTIES

9.1. We warrant that the Data conforms in all material respects to the agreed specification for a period of 90 days from the date of delivery and our services will be provided with reasonable skill and care. If Data has been provided on a disk, we warrant that the disk will be free from any material defect for a period of 7 days from delivery. If, within such periods, you notify us in writing of any defect or fault in conforming to such agreed specification, and such default does not result from you (or anyone acting with your authority) having amended the Data or used it outside the terms of the Licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by us, we shall (at our option) do one of the following: (i) repair the Data (or disk); (ii) replace the Data (or disk); or (iii) terminate this Licence immediately by notice in writing to you and refund any of the Licence Fee paid by you as at the date of termination (less a reasonable sum, to be determined by us, in respect of your use of the Data to the date of termination) on return (or destruction) of the Data PROVIDED THAT you provide all information as may be necessary to assist us in resolving the defect or fault.
9.2. We shall have no liability to remedy or otherwise where such liability arises as a result of: (i) the improper use, operation or neglect of either the Data or any media on which it is provided; (ii) the modification of the Data or its merger (in whole or in part) with any other software or data; (iii) failure by you to implement recommendations or instructions given by us; (iv) any repair or adjustment of the Data or the media on which it is provided by any person other than us without our prior written consent; (v) damage due to any intentional act of the Licensee or wear and tear; and (vi) use of the Data or the media on which it is provided for a purpose for which it was not licensed under this Licence.
9.3. We do not warrant that the use of the Data will be uninterrupted or error-free.
9.4. All other conditions, warranties, or other terms which may be implied or incorporated into these terms and conditions or any collateral contract, whether by statute, common law or otherwise are hereby excluded (including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care).

10. LIMITATION OF LIABILITY

10.1. We shall not be liable to you under, or in connection with, the Licence in contract, tort, negligence, pre-contract or other representations or otherwise for any loss of data, business, goodwill, contracts, revenue, profits or anticipated savings or for any special, indirect, consequential or economic loss whatsoever.
10.2. We attempt to ensure that all the Data supplied by us is correct and accurate, however, as we deal with an immense quantity of material compiling and providing Data and part of the Data may originate from a source outside of our control, we cannot guarantee the accuracy of the Data. It is agreed that we are not responsible for any errors in or omissions from the Data.
10.3. Our aggregate liability, whether under this Licence or any collateral contract and whether in contract tort or otherwise shall be limited to the Licence Fee paid by the Licensee.
10.4. Nothing in these terms and conditions shall exclude or limit liability for death or personal injury caused by negligence, fraud (including fraudulent misrepresentation) or any other liability which may not be excluded by law.

11. TERMINATION

11.1. We shall be entitled to (without prejudice to any other rights or remedies) immediately suspend or terminate this Licence:
11.1.1. if the Licensee commits any breach of this Licence and fails to remedy that breach (if it is capable of remedy) within 10 days from receiving written notice from us; or
11.1.2. if the Licensee comes to any arrangements with its creditors, becomes bankrupt or has appointed an administrative receiver or administrator over the whole or part of the property; or
11.1.3. if any resolution is passed or order is made for the winding up of the Licensee.
11.2. Termination in accordance with clause 11.1 shall be without prejudice to any of our other rights or remedies accrued prior to termination.
11.3. On termination for any reason or expiry of the Licence:
11.3.1. all rights granted to the Licensee under this Licence shall cease;
11.3.2. the Licensee shall cease all activities authorised by this Licence;
11.3.3. the Licensee shall immediately pay to us any sums due to us under this Licence; and
11.3.4. the Licensee shall immediately destroy or return to us (at our option) all Data and other information provided to it by us then in its possession, custody or control an, in the case of destruction, certify to us that it has done so.

12. FORCE MAJEURE

12.1. We shall not be liable to the Licensee or be deemed in breach of any of the terms of these terms and conditions for failure or delay to perform any of our obligations in relation to provision of our services if the failure or delay is caused by any event beyond our control (including any failure by our Data Supplier to provide us with Data).
12.2. If delivery is delayed by force majeure circumstances the following provisions will apply:
12.3. We shall, as soon as reasonably practicable, give the Licensee notice of the reasons for the delay, provided that we shall incur no liability for failure to give notice;
12.4. our duty to deliver shall be suspended for so long as the force majeure circumstances continue and the time for delivery shall be extended by an equivalent period;
12.5. We may at any time, and in our sole discretion give notice to the Licensee to terminate the Licence. In that case we shall incur no liability to the Licensee for any losses caused as a result of the termination.

13. E-MAIL

13.1. In the case where the Data includes an e-mail field the following provisions shall apply:
13.2. If it is the Licensee’s wish that certain criteria is excluded from our range we must be provided with a suppression file that clearly states the requested exclusions prior to the Order Date.
13.3. We are not responsible or liable for any e-mail addresses that prove to be undeliverable except in the case where the percentage of e-mails that prove to be undeliverable exceeds the Undeliverables Threshold. The Licensee must notify us with proof of the number of e-mails that have proven to be undeliverable within 20 days of delivery of the Data. We will endeavour to replace the e-mail Data to maintain the Undeliverables Threshold.
13.4. The Licensee my not exceed more than 12 emails to any one addressee in any 12 month period, this is subject to the restrictions, if any, included on the Order Form.
13.5. We reserve the right to require the Licensee to cease or modify its use of the e-mail Data if we believe that such use is, in our opinion, inappropriate or we have been misled as to the use of the e-mail Data.
13.6. Where the Licensee procures the use of e-mail Data to send e-mails, it must be ensured that there is a simple way for the recipient to opt out of receiving any further e-mails or other communications. Details of any recipients who choose to opt out must be sent to us.

14. COMPLIANCE AND AUTHORITY

14.1. The Licensee will ensure that its use of the Data complies with all applicable laws and regulations including, without limitation, the Data Protection Act 1998, the current regulations of the Post Office and the Universal Postal Union and any other applicable codes of practice.
14.2. The Licensee warrants to us that it has full right, power and authority to be granted the Licence on these terms and conditions and perform any acts required of it thereunder.

15. NOTICE

15.1. Either party may give notice to the other by sending it to the registered office by first class post or fax. Notice will be deemed received on the second business day after posting or transmission.

16. ENTIRE AGREEMENT

16.1. These terms and conditions comprise the entire agreement between the parties and any other understandings, promises or conditions, express or implied are superseded by these terms and conditions. In accepting the Licence, the Licensee acknowledges and agrees that it has not relied upon any representations, statements or warranties made or given by us other than those expressly set out in these terms and conditions and that it has no rights or remedies with respect to such subject matter other than as set out in these terms and conditions. Nothing in this clause 16.1 shall limit liability for fraud or fraudulent misrepresentation.
16.2. These terms and conditions may only be amended by the parties in the future in writing.
16.3. These terms and conditions are is in complete substitution for any other terms and conditions which either party uses in the course of their business.

17. GENERAL
17.1. Nothing in these terms and conditions shall be construed as creating a partnership or joint venture of any kind between us and you or as constituting either of us as the agent of the other for any purpose whatsoever.
17.2. No failure to exercise or delay in exercising any right or remedy in respect of or arising out of these terms and conditions shall constitute a waiver of that right or remedy by us, nor shall any single or partial exercise of a right or remedy prevent any other exercise of that right or remedy or any other right or remedy.
17.3. No provision of these terms and conditions shall be enforceable by any Third Party under the Contract (Rights of Third Parties) Act 1999 or otherwise.
17.4. If any provision of these terms and conditions is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

18. APPLICABLE LAW AND JURISDICTION

18.1. The formation, construction and performance of these terms and conditions shall be governed in all respects by English Law.
18.2. It is agreed that the English courts shall have the sole jurisdiction to decide any dispute arising out of or in connection with the formation, construction or performance of these terms and conditions.

19. INTERPRETATION

19.1 In these terms and conditions and any attached Order Form or Schedule:
“We”, “us” or “our” means Knowledge Bank Solutions Ltd. (registered number 5514660) whose registered office is at Centurion House, Centurion Way, Farington, Lancashire PR25 3GR.
“Licence” means the licence for the use of Data between the Licensee and us governed by these terms.
“Data” means information of any kind, however presented whether comprising words, numbers, graphs, maps, pictures or in any other form which is supplied by us under this Licence.
“Direct Marketing” means any form of telephone sales, telephone marketing, direct mail, e-mail marketing, market research or use of circulation list or fax marketing which is targeted an end user.
“Single Use” means use one occasion only for one specific Direct Marketing campaign.
“Third Party” means any individual, partnership or body corporate including, but not limited to, employees, ex-employees, principals, agents, clients or associated companies of either party.
“Data Supplier” means any party who has supplied all or part of the Data to us.
“Order Date” means the date the Licensee places the order for the Data.
“Available Formats” include: xls, xml spreadsheet, tab delimited, space delimited, comma delimited, Unicode, text, dBase II-IV and interchange format.
“Undeliverables Threshold” means 25% of the e-mail Data provided under this Licence.
“Licensee” or “you” means the person to whom the licence is granted pursuant to these terms and conditions.
“Order Form” means the attached order form to these terms and conditions.
“Licence Fee” means the fee payable by the Licensee to us pursuant to these terms and conditions, as set out in the Order Form.
19.2 The headings in these terms and conditions do not affect its interpretation. Save where the context otherwise requires: (i) references to clauses are to clauses of these terms and conditions; (ii) references to statutory provisions include such as amended or re-enacted; (iii) references to any gender include all genders; and (iv) words in the singular include the plural and vice versa.