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Business Status Monitoring – Conditions of Business
1.1. In these Conditions the following words shall have the following meanings.
1.2. Headings used in these Conditions are for convenience only and shall not affect their interpretation.
1.3. These Conditions shall come into force on the Effective Date and each Order shall be subject exclusively to the Conditions.
2.1. In consideration of you:
(a) agreeing to be bound by and observe the terms of these Conditions (including but in no way limited to those provisions contained herein concerning the limitation of our liability and that of any Third Party Supplier and your forbearance not to bring proceeding against us or the Third Party Supplier in certain circumstances as set out in clause 5 of these Conditions) and;
(b) paying the sum £1.00 to us (if demanded)
we will (subject to the terms of these Conditions) grant to you a non-exclusive non-transferable licence to use the Information that we supply to you as part of the Services on the terms set out below.
2.2. You agree to use the Information solely for your own internal business use. You agree not to use store copy sell redistribute or deal with the Information in any other manner or for any other purpose without our prior written consent. You shall indemnify us (including in respect of any legal fees) in respect of any loss, costs, expenses that we suffer as result of a breach by you of this Condition 2.2.
3.1. We will not be obliged to accept any Order and we may refuse to provide the Services without giving any reason.
3.2. Each Order shall constitute a separate and severable contract between you and us.
4.1. The Charges shall be based on the number of Subjects in respect of which you require the Services.
4.2. The Initial Consideration shall allow you (subject to these Conditions) to receive the Services for your Maximum Allowance of Subjects without further charge. If you request the Services for more than your Maximum Allowance of Subjects we shall be entitle to make Charges at our then current price list (ex VAT).
4.3. The Charges are exclusive of Value Added Tax and where applicable shall be payable at the rate prevailing from time to time. We reserve the right to vary the Charges on written notice to you at any time.
4.4. Unless we specify otherwise, you must pay the Charges in advance of receiving the Alerts without deduction or set off. If for any reason your payment fails, we may do one or more of the following, without prejudice to any other rights or remedies available to us:
(a) charge you interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; or
(b) suspend your Account.
5.1. Except as expressly provided in these Conditions all representations, conditions and warranties whether express or implied (by statute or otherwise) are excluded to the fullest extent permitted by law.
5.2. The Information may comprise Third Party Data. You agree to exercise your own judgment in the use of the Information and shall be solely liable for all opinions recommendations forecasts or comments made or actions taken in reliance on the Information.
5.3. The Information may in whole or part be compiled from or contain advice or opinions based on Third Party Data the accuracy or completeness of which we are unable to verify. Whilst we will use our reasonable endeavours to ensure that the Information is accurate and complete we do not warrant the accuracy or completeness of any Information supplied to you or the validity of any advice or opinion contained in the Information. Accordingly, we will not accept any liability for any error or omission in the Information.
5.4. Any times and dates quoted for delivery of the Services are approximate only and we will not be liable for any delay or failure by us or our officers employees or agents in delivering by whatever means the Services howsoever caused. Time of delivery shall not be of the essence.
5.5. We will not be liable for any loss of business, loss of profit, loss of contract, loss of goodwill or anticipated savings or any type of special indirect or consequential loss (including loss or damage you suffer as a result of a claim by a third party) even if such loss was reasonably foreseeable or you had advised us of the possibility of your incurring the same.
5.6. Nothing in these Conditions shall exclude or limit our liability for death or personal injury.
5.7. Subject to the above provisions, our liability to you in respect of any Order shall be limited to the Charges (excl. VAT) (if any) paid or payable by you in respect of the Order giving rise to your claim.
5.8. If no Charges have been made and only the Initial Consideration has been given by you in respect of the Services which we have provided then subject to the above provisions our liability to you shall be limited to the sum of £1.00.
5.9. If you want to make a claim against us in relation to the Information you must give us written notice of the claim within 3 months of becoming aware of the circumstances giving rise to the claim, or if earlier, 3 months from the time you ought reasonably to have become aware of such circumstances. If you do not then we shall not be liable for the claim.
5.10. Nothing in these Conditions shall exclude the statutory rights of a consumer.
5.11. You agree and undertake not to bring any proceeding or make any claim against us in respect of any matter for which we have lawfully excluded our liability as set out in the above provisions.
5.12. Equifax plc is the provider of the Information to us and may enforce the provisions, and is entitled to the benefit, of this Condition 5 in accordance with the Contracts (Rights of Third Parties) Act 1999.
6. COMPLIANCE WITH STATUTES
6.1. You shall at all time comply with the provisions of all relevant statutory enactments including but not limited to the Consumer Credit Act 1974 and the Data Protection Acts 1984 and 1998 (and the Data Protection Principals thereunder) and you shall indemnify us (including in respect of any legal fees) in respect of any loss, costs, expenses that we suffer as result of a breach by you of this Condition 6.1.
7.1. You acknowledge that all IPR subsisting in the Information and the Alerts including the manner in which the Information and the Alerts are respectively presented or displayed, whether or not capable of registration, are either our property or the property of a Third Party Supplier (as the case may be). You will not at any time challenge or dispute our ownership or the ownership of any Third Party Supplier (as the case may be) of any such rights.
8.1. You undertake to keep the Information confidential and limit access to those of your employees who either have a need to know or are engaged in their use and shall not disclose the Information in whole or part in any format or medium to any third party.
8.2. You shall keep the existence and terms of the Conditions confidential and shall not disclose the same to any third party except for your professional advisers or if you are required by law to do so.
9. FORCE MAJEURE
9.1. Neither Party shall be under any liability to the other in respect of any failure to carry out or delay in carrying out its obligations under these Conditions (except payment pursuant to Clause 4) attributable to any cause of whatever nature outside its reasonable control.
10.1. We may cancel an Order at any time on notice to you and our sole liability to you shall be to refund you the Charges (if possible) you have paid us in respect of the cancelled Order.
10.2. Our right to cancel an Order shall be without prejudice to any other right or remedy available to us for any breach of the Conditions by you and without prejudice to any right expressed to survive termination or expiry of the Condition.
10.3. You may cancel an Order at any time on giving us written notice but you shall not be entitled to a refund of the Charges payable in respect of the cancelled Order once we have accepted that Order.
11.1. Any notice to be served by us in accordance with the Conditions shall be in writing and delivered by first class prepaid post to your address notified to us by you from time to time. Any notice to be served by you to us in accordance with the Conditions shall be in writing and sent by first class prepaid post to our registered office.
11.2. Notices served in accordance with clause 10.1 above will be deemed to have been received by the recipient within 72 hours of posting.
12.1. We may assign or sub-contract our rights and obligations under the Conditions at any time on notice to you. You may not assign the benefit of or your obligations under the Conditions without our prior written consent.
13.1. These Conditions constitute the entire agreement between the parties in respect of the Services and supersede any earlier arrangements, understandings, promises or agreements made between the parties in respect of the Services.
13.2. You acknowledge that in instructing us to provide the Services, you do not do so on the basis of any representation, warranty or any provision not expressly contained within these Conditions.
13.3. Any failure by us to enforce a breach of the Conditions by you shall not be deemed to be a waiver of any subsequent breach of these Conditions that you may make.
13.4. If at any time any one or more of the Conditions are held to be unenforceable, illegal or otherwise invalid in any respect, such enforceability, illegality or invalidity shall not affect the remaining Conditions, which shall continue in full force and effect.
13.5. Nothing in the Conditions shall create or be deemed to create a partnership or joint venture between the parties or the relationship of principal and agent or employer and employee.
13.6. The Parties agree that no third party shall be afforded any rights under the Conditions.
13.7. We may amend the Conditions at any time by posting the change on the Website or by sending written notice of such changes to you.
13.8. No variation of or waiver of or amendment to the Conditions shall be binding on us unless agreed in writing by a Director on our behalf.
13.9. English law shall govern the Conditions and the parties agree to submit to the exclusive jurisdiction of the English Courts in all matters regarding the Conditions.