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TERMS & CONDITIONS
1. INTRODUCTION
These terms and conditions are binding upon all Customers of the Company. Where a particular condition relates to a particular service it shall apply to the Customer only if the Customer has subscribed for such Service and the Company has agreed to provide it. All Customers subscribing to the Information Service are reminded that it is essential that in using it they comply with all relevant provisions of the Data Protection Act 1998 and that any breach of it can have serious consequences for which the Customer will be held liable.
2. DEFINITIONS
In these conditions the following expressions shall have the following meaning:-
2.1 The Company - Creditreform (UK) Limited
2.2 Customer - Any Customer to whom any Service is supplied by
the Company.
2.3 Associate - Any Associate company or other party related to
the Company or to the Customer as applicable.
2.4 Database - Any database operated by an Associate of the
Company and to which access is made available to the Customer as part of
the Information Service.
2.5 Data - All information whatsoever whether printed written
oral or in any other medium available to the Customer subscribing to the
Information Service.
2.6 Software - Software provided by the Company or its Associate
in connection with the Information Service.
2.7 Hardware - Any computer hardware made available by the
Company or its Associate in connection with the Information Service.
2.8 Charge(s) - Any charge(s) whether by subscription commission
fixed fee or otherwise as are from time to time communicated by the
Company to the Customer in writing as being its charge for the provision of
any Service which the Company has agreed to provide.
2.9 Services - Any service which the Company from time to time
provides to the Customer including (without limitation) those referred to in
clauses 2.10-2.13 below.
2.10 Recovery Service - The commercial debt recovery service operated by
the Company.
2.11 Information Service - The credit reference service operated
by the Company including any database to which access is made available
to the Customer.
2.12 Search Service - The Company search service operated by the
Company.
2.13 Formation Service - The company formation service operated by the
Company.
3. PERIOD OF AGREEMENT
3.1 Where the agreement between the Company and the Customer is fixed
term in nature it shall commence and continue on such date and for such term as
they shall have agreed in writing and thereafter until terminated by either party giving
not less than two months notice in writing to the other but subject to the right of
prior termination in accordance with the provisions of section 14 below.
4. PAYMENT
4.1 Any Service and any Software or Hardware requested by the Customer and
supplied by the Company or its Associate under this agreement shall be subject to
such Charge as may have been agreed between them and thereafter as from time to
time notified by the Company to the Customer.
4.2 If the Customer does not make payment of any Charge by the due date the
Company may charge interest on any amount outstanding at the rate of 5% per
annum above Barclays Bank Plc's base rate from time to time from the date when
payment became due until payment is made.
4.3 All Charges are exclusive of Value Added Tax which is payable in addition
at the rate prevailing from time to time.
4.4 The Company may suspend any Service in respect of which any payment is
from time to time outstanding and shall not be required to resume the Service until
cleared funds have been received in respect of all sums due and in such case the
Company may as a pre-condition to the restoration of Service require payment of a
security deposit for an amount equating to such sum as the Company shall in its
discretion assess as being the Charges likely to be incurred by the Customer in
any period of three months.
5. THE SERVICES
The Company or its Associates shall provide to the Customer for the duration of the
agreement between them such Services for which the Customer has subscribed
and the Company has agreed to provide.
6. THE LICENSE
The Company shall grant or procure that its Associate shall for the duration of the
agreement between them provide a non-exclusive non-transferable licence to use
any Software provided (in object code form only) solely on such equipment and at
such locations as the Company shall authorise and upon the basis of these conditions.
7. USE OF SOFTWARE AND HARDWARE
7.1 The Customer undertakes:-
7.1.1 Not (save where such restriction contravenes any statute) to copy reproduce translate adapt vary or modify any Software nor to disclose communicate or make it available to any third party without the Company's prior consent and if the Customer becomes aware of any unauthorised copying disclosure it will immediately notify the Company.
7.1.2 To maintain accurate and up-to-date records of the number and location of all copies of Software.
7.1.3 To supervise and control the use of any Software and Hardware in accordance with these conditions and to protect it from and against theft destruction or damage.
7.1.4 Not to provide or make available Hardware or Software to any person other than employees of the Customer who need to have access in order to properly use the Services.
7.1.5 To ensure that any Hardware and Software is used in an operating environment and in accordance with other operating instructions as reasonably specified by the Company or its Associate.
7.1.6 To ensure that any equipment used in conjunction with the Hardware or the Software complies with any requirements specified by the Company or its Associate.
7.2 The Customer acknowledges that any hardware or software supplied is
licensed to the Customer for the sole purpose of it being able to receive and
operate the Information Service and it shall only be used for such purpose.
8. COPYRIGHT AND CONFIDENTIALITY
8.1 Title to and all intellectual property rights of whatsoever nature in all reports
and information and Data of any nature provided to the Customer shall at all times
remain vested in the Company or its Associate as applicable. The Customer shall
acquire no proprietary rights whatsoever in such information and the Customer may
only make such number of copies of any such information as is necessary for those
purposes permitted by condition 8.2 below.
8.2 The Customer undertakes that it shall use all Data and other information
provided solely for the internal purposes of its own business and
(save as is required by law) will:-
8.2.1 keep the Data strictly confidential
8.2.2 not publish all or any part of the Data
8.2.3 not divulge or disclose all or any part of the Data to any third party
other than for the sole purpose of obtaining trade credit insurance
8.2.4 permit access to the Data only to those of its officers or employees
who need to know or use the same and ensure that such officers or
employees comply with the provisions of this condition 8.
8.3 The Customer further underakes that it shall not use or permit the use of
Data for the purpose of providing credit reference and/or moveable asset enquiry
services to any third party. The expression "third party" shall not include any
Company which is a member of the Customer's Group and the expression "a
member of the Customer's Group" shall mean any subsidiary of the Customer or
any holding company (whether ultimate or intermediate) of the Customer or any
subsidiary (whether direct or indirect) of any such holding company (whilst in
each case they remain as such) as such expressions are defined in s.736
Companies Act 1985 and the Customer shall procure that any and all such
members of the Customer's Group shall be found by these conditions as relate
to the Information Service.
9. INFORMATION SERVICE: FURTHER LIMITATIONS OF SCOPE
9.1 Data obtained in connection with the Information Service is supplied in strict
confidence for the Customer's internal business use only.
9.2 The Customer is warned that all Data should only be used as a factor to
assist in the making of a business decision and should not be used as the sole
basis for any such decision.
9.3 The Customer warrants unreservedly not to transmit or otherwise reveal
such information to any person or persons not expressly employed in the
Customer's business.
9.4 The Customer will not:-
9.4.1 Ask for the Data knowingly for the use of others.
9.4.2 Wilfully or negligently permit such requests to be made by others.
9.4.3 Request or acquire except by first obtaining the Company's written consent and the Company shall have an absolute and unfettered discretion as to whether it gives such consent Data pertaining to any Associate of the Customer.
10. OWNERSHIP OF SOFTWARE AND HARDWARE
10.1 Ownership of all Software and Hardware (including any intellectual property
rights in either of them) shall remain with the Company or its Associate as
applicable.
10.2 Risk in any Software and Hardware shall pass to the Customer upon
delivery.
11. SECURITY
11.1 The Customer will comply fully with all rules from time to time reasonably
prescribed by the Company or its Associate in relation to the manner of the
provision of Services (or any of them) as the Company may require for the
purposes of ensuring the security of any Data and/or Software.
11.2 The Customer acknowledges and agrees that control and security of
identification codes and passwords supplied to the Customer in order to gain
access to any Service are its sole responsibility and that the Company and/or its
Associate shall have no liability whatsoever to the Customer for any losses
occasioned by use of such codes or passwords by unauthorised persons.
12. LIABILITY
12.1 The Customer agrees and acknowledges that Data made available to it by
the Company or its Associate should not be used as the sole basis for a business
decision of the Customer and accordingly that it is reasonable for the Company to
limit its liability in accordance with the provisions of this clause 12.
12.2 The Customer acknowledges that any Data made available to it will
represent or be based on information provided to the Company or its
Associate by third parties whose accuracy the Company cannot control and may
contain expressions of advice and opinion. Accordingly:-
12.2.1 The Company does not warrant the accuracy of Data or the validity of any advice given or opinion expressed on the basis of such Data and shall in no circumstances be liable for any loss of whatsoever nature suffered by the Customer as a result of its use of any Data (or its reliance upon any such advice or opinion) including without limitation any loss suffered as a result of any claim by the subject of any such data advice or opinion.
12.2.2 The Customer will indemnify and keep fully indemnified the Company and its Associate and their respective officers employees or other agents against any third party claim or action made or instituted against any of them in respect of any losses, damages, costs or other expenses in such connection which is either due to the Customer (by act or omission) rendering the Data inaccurate or incomplete or arises otherwise in connection with this agreement.
12.2.3 The provisions of sub-clause 12.2 above are subject to the Company in the provision of Services exercising reasonable skill and care provided that in any event it will not be liable for any indirect or consequential loss or loss of profit loss of sales increase in (or failure to reduce the level of) bad debts or loss of business arising out of the negligence of the Company or its Associate or their respective servants or agents for breach or contract or other tort or otherwise and any claim (for negligence breach of contract or otherwise) by the Customer in connection with the Services shall not exceed the charge paid for the particular Service upon which any claim against the Company is based or £1,000 whichever is greater.
12.2.4 The provisions of this clause 12 shall not apply to any claims in respect of death or personal injury arising out of the negligence of the Company its servants or agents.
12.2.5 Except as expressly provided in this clause 12 no representation warranty condition undertaking term or otherwise is given and all such representations warranties conditions undertakings and terms are excluded insofar as the law permits.
13. COOPERATION AND ASSISTANCE
The Customer shall during the continuance of this agreement at its cost cooperate with the Company and its Associate to such extent and provide to the Company such information and assistance as it shall reasonably require to assist it in performing the Services.
14. TERMINATION
14.1 This clause shall apply to any fixed term or ongoing agreement
between the parties relating to the Information Service or to the Recovery Service.
14.2 Either party shall be entitled by written notice to the other to terminate the
agreement either immediately or as from the date specified in such notice if:-
14.2.1 The other party is guilty of any material breach of the provisions of these conditions and such breach if capable of remedy is not remedied within 7 days of written notice to that effect or
14.2.2 If an order or a resolution is made or passed for the winding up of the party (otherwise than for the purposes of solvent reconstruction or amalgamation) or
14.2.3 If an administrator or administrative receiver is appointed in respect of the whole or any part of the other party’s assets or distress or execution is levied upon any of the assets of the other party and is not paid out within 14 days or
14.2.4 If the other party enters into any scheme or arrangement or composition with its creditors generally.
14.2.5 If circumstances shall arise constituting force majeure.
14.3 Termination of the agreement shall be without prejudice to any rights of
either party which may have accrued prior to termination or to any provision of
these conditions such as is intended to survive termination of the agreement
between the parties.
14.4 Upon termination of the agreement for whatsoever reason the Customer
shall immediately deliver up to the Company all Hardware and all Software and
any copies of Software and any documentation provided by the Company in
connection with the Services and all Hardware shall be returned in good
condition and in proper working order.
15. STATUTORY COMPLIANCE
15.1 The Customer undertakes that it will in using the Information Service
comply fully with all relevant statutory enactments (including without limitation
the Consumer Credit Act 1974 and the Data Protection Acts 1984 and 1998
(and the Data Protection Principles therein)) and all re-enactments and
amendments to any such Acts or regulations or requirements made by any
governmental authority or competent body.
15.2 The Company further undertakes and warrants that it holds all necessary
registrations and licenses and that prior to its use of Services it will obtain all such
consents as are necessary from individuals in order to lawfully gain access to and
make use of any Data including without limitation such consents as are necessary
to be obtained from individuals acting in the capacity of director, partner or sole
trader of a business in respect of which the Company or its Associate is conducting
a search on behalf of the Customer.
15.3 The Customer hereby indemnifies the Company in respect of any loss or
liability of whatsoever nature accuring to the Company occasioned by reason of the
use of the Information Service by the Customer in breach of any statutory or
regulatory provision.
16. ADDITIONAL PROVISIONS APPLICABLE TO RECOVERY SERVICE
16.1 The Recovery Service is available only in relation to overdue debts owing to
the Customer for which the Customer has all necessary supporting documents to
prove the existence of the debt. The Customer shall not request the Company to
undertake the Recovery Service in relation to any party other than one carrying on
a business in relation to which the debt had arisen at the date of placement with the
Company's collector.
16.2 The Company may make collection and shall be entitled to instruct any
lawyer and/or agent necessary to collect any debts. If the Customer does not
designate a lawyer and/or agent the Company is authorised by the Customer to
select any lawyers and/or agents and to forward such debts to them. The
Customer shall be entitled at all times to communicate with such lawyers and/or
agents and the Customer acknowledges that such lawyers and/or agents are not
employed by the Company but are the Customer's lawyers and/or agents. The
Company shall not be required to issue proceedings without the advance express
written instructions of the Customer.
16.3 The Company and any lawyers and/or agents appointed on behalf of the
Customer are authorised by the Customer to collect payments, issue receipts for
payments, and to deduct therefrom and retain and account for any Charges owing
and due to the Company or such agents and lawyers.
16.4 Debts paid after the expiration or termination of this agreement and paid
direct to the Customer from whatever source shall be subject to the Company's
Charge for any Services performed up to the time when the Company is advised in
writing that such payment has been made. Any goods or services accepted by the
Customer in lieu of payment shall be subject to the Company's Charge calculated
on the amount by which the debtor's account is credited for such goods services
or monies.
16.5 If the Customer receives direct payment or settlement of the debt or if the
Customer wishes to withdraw the debt then the Customer will forthwith notify the
Company in writing of such payment settlement or wish. If the Customer withdraws
a debt placed with the Company for collection prior to the Company recommending
termination of the Recovery Service in connection with that debt then the Company
may in its discretion levy a charge for the Services performed to the date of the
withdrawal.
16.6 If having placed a debt with the Company the Customer fails to respond to
communications from the Company for a period exceeding 28 days then the debt
shall be conclusively presumed to have been settled and the appropriate Charge
shall be due.
16.7 The Customer shall take all reasonable steps to ensure that information
supplied by it in relation to the Recovery Service is correct and shall ensure that
its officers and employees cooperate with the requirements of the Company
and/or agents or lawyers appointed in the provision or preparation of any
information or documents.
17. SEARCH SERVICE
17.1 The Company will exercise reasonable skill and care in the performance of
the Search Service but the Customer acknowledges that the Company is reliant
upon information made available to it by the Companies Registry and does not
accept liability for any error in such information.
17.2 Search requests should be communicated or confirmed in written form and
preferably including both the name and the number of the company against which
a search is to be conducted. If a search is conducted on the strength of oral
instructions alone or without the provision of the registered number then the
Company accepts no responsibility if the search should inadvertently be
conducted against the wrong company but in which case the relevant Charge shall
remain payable.
17.3 In any event the liability of the Company in the performance of the Search
Service is limited to reimbursement of the relevant Charge.
17.4 All charges incurred in connection with the Search Service shall be due
within 7 days of invoice.
18. FORMATION SERVICE
18.1 The Company shall exercise reasonable skill and care in the performance
of the Formation Service.
18.2 Instructions for company formation should be made or confirmed in
written form. If the Company agrees to commence the formation procedure on
the strength of oral instructions then it accepts no liability for any inaccuracy
thereby arising and the Customer shall be responsible for any additional fee
which may be incurred.
18.3 Following receipt of instructions the Company shall not be obliged to
divulge the company number or to release the company documentation until
the Charge has been paid in full and any relevant corporate documents
providing for the change of director secretary and registered office have been
lodged with the Company.
18.4 If the Customer fails to pursue a company formation following a
receipt of order then the Company's Charge shall in any event be payable in
full within 7 days of invoice.
19. NON-ASSIGNMENT
The Customer may not assign to any third party the benefit or burden of any
agreement between the Customer and the Company nor may it share with any
third party the provision of any Service.
20. WAIVER
No failure by either party to exercise any right or remedy available to it under
these conditions nor any delay to exercise such right or remedy shall operate
as a waiver of such matter.
21. NO ALTERATION
These conditions shall be conclusive in regulating the use and provision of
the Services to the exclusion of any standard other conditions which the
Customer may have communicated to the Company.
22. SEVERANCE
This agreement is severable in that if any provision of this agreement is
determined to be illegal or unenforceable by any court of competent
jurisdiction it shall be deleted to that extent and no further without affecting
the remaining provisions of this agreement.
23. LAW
This agreement shall be governed by the laws of England and to the
exclusive jurisdiction of whose courts the parties hereby submit.
24. NOTICES
Any notice to be given pursuant to these conditions may be given in writing
by recorded delivery post or facsimile to any address or facsimile number
communicated by either party to the other and shall be deemed received
(if sent by pre-paid post to the correct address) two working days after being
posted or (if sent by facsimile to the correct facsimile number) one hour after
transmission if sent during normal working hours or if outside working hours
then at commencement of business the next following working day.
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