Terms and Conditions

Appendix: Standard Terms & Conditions

•1. Definitions

1.1 The following words shall have the following meanings:

Access Services the making available of Deliverables by the Company to the Client;

Additional Term any period of 12 months commencing on an anniversary of the Date;

Aggregation Services the collection, formatting, processing and enhancement by the Company (whether for the benefit of the Client or a third party) of Data;

Agreement this Agreement (including the Proposal);

Company Spikes Cavell Analytic Limited;

Confidential Information all Deliverables and any other deliverables which the Company may from time to time provide to the Client under this Agreement;

Data all information, data, specifications and documentation to be provided by the Client to the Company in connection with this Agreement;

Date the date of this Agreement as specified on the Proposal;

Deliverables all information, software, data, drawings, specifications, documentation and any other deliverables (whether or not resulting from the performance of Aggregation Services by the Company) which is to be the subject of the Access Services;

Delivery Date any date specified on the Proposal for the performance of a Service;

Fee the fee to be paid by the Client for a Service as specified on the Proposal;

Initial Term the period of 12 months from the Date;

Proposal the document, which forms part of this Agreement, describing the services to be delivered by the Company to the Client;

Password the password to be notified from time to time by the Company to the Client with which one nominated representative of the Client may access the Company's website;

Services the Aggregation Services and/or Access Services, as specified on the Proposal;

Supplemental Services services requested by the Client which are supplemental to the Services, including diagnosis and rectification or correction of lost, corrupted or inaccurate data arising for any reason other than the Company's own negligence;

Territory the United Kingdom.

1.2 Words denoting persons shall include corporations, companies, firms or other bodies as the case may be and vice versa. Words denoting the masculine shall include the feminine and neuter or vice versa. The singular shall include the plural and vice versa.
1.3 "Copy" means a copy in any format whatsoever and includes a partial copy.

•2. General

2.1 The Company and the Client agree to be bound by the terms and conditions of this Agreement.
2.2 The Company will provide the Services to the Client. As agreed from time to time, the Company shall perform Supplemental Services, in respect of which the Client shall pay an additional Fee. All Delivery Dates are estimates only.
2.3 The Client will pay all Fees within 30 days of receipt of invoice, in sterling, exclusive of VAT and any other applicable taxes fees or deductions, to the Company's nominated bank account. In the event of non-payment of any Fees (whether in whole or in part) the Company reserves the right to:
2.3.1 charge interest on all outstanding sums at 8% above the Bank of England's base rate from time to time, compounded daily; and
2.3.2 refuse to provide (or suspend the provision of) any or all Services (in whole or in part) until payment of all outstanding sums is made in full.

In the event of the client reasonably disputing any fees, no interest shall be charged on late payments for such fees until such time as the dispute has been satisfactorily resolved.

2.4 The Company shall notify the Client of the Fees:
2.4.1 in respect of the Initial Term, on the Proposal;
2.4.2 in respect of any subsequent Additional Term, in writing, not less than 60 days prior to the commencement of that Additional Term.

•3. This Clause 3 only applies where Aggregation Services are specified on the Proposal

3.1 The Company will within 21 days of the Date, specify the Data in writing to the Client and the Client will give all reasonable assistance to the Company to enable it to identify the Data. Within 21 days of such specification, the Client will provide the Company with 1 full copy (in a format to be specified by the Company) of the Data.
3.2 The Company will perform the Aggregation Services on the Data within the timescale specified on the Proposal.
3.3 The Client hereby warrants and represents to the Company that it has the right to supply the Data to the Company for the purposes of the Aggregation Services.
3.4 The Client hereby grants the Company a non-exclusive, perpetual, world-wide, royalty-free licence (which the Company may freely assign and/or sub licence) to use the Data for any normal business purpose of the Company including but not limited to the Services.

•4. This Clause 4 applies only where Access Services are specified on the Proposal

4.1 The Company will discuss with the Client the data which is to be included in the Deliverables.
4.2 The Company will, within the timescale specified on the Proposal, provide the Access Services and provide the Client with a Password for each of the Client's nominated representatives. Each such Password may only be used by the respective nominated representative (in accordance with this Agreement) to access the Deliverables and no other use may be made of that Password.
4.3 The Company hereby grants the Client a non-exclusive licence to use the Deliverables, and to make copies of the Deliverables, for its own internal purposes, within the Territory for the Term. The Client will reproduce and include the Company's copyright notice on all and any copies of the Deliverables and in relation to any other use of the Deliverables.
4.4 The Client warrants and represents to the Company that it will not:
4.4.1 copy, sell, lease, licence, sub‑ licence or otherwise disclose the Deliverables, in whole or in part, or any copies to any third party;
4.4.2 without prior written consent from the Company, provide or otherwise make available the Deliverables, in whole or in part, in any format, to any person other than the Client's employees;
4.4.3 use the Deliverables for or on behalf of any third party.
4.5 The Company hereby warrants and represents to the Client that it has the right to make the Deliverables available to the Client for the purposes of the Access Services.
4.6 The Client will supervise and control use of the Deliverables in accordance with the terms of this Agreement.
4.7 The Company may cancel or suspend the Password and the Client's right to use the Deliverables:
4.7.1 if the Client breaches the terms of this Agreement or in the event of termination for any other reason as set out in this Agreement. This right shall be in addition to any rights expressed or implied under the terms of this Agreement; or
4.7.2 if the Company ceases to have sufficient rights to enable it to grant the licence referred to in clause4.3.
4.8 The Client may not transfer, sub licence or charge (whether in whole or in part) the licence granted in clause 4.3.

•5. The Company's Warranty

5.1 The Company will ensure that it and its employees and representatives use all reasonable skill and diligence in the performance of the Services.
5.2 The Company gives no warranty as to the accuracy or composition of the whole or any part of the Data or the Deliverables although the company has the responsibility to use reasonable skill and diligence in the performance of its duties.
5.3 The Company shall not be liable to the Client for any loss or damage whatsoever or howsoever caused, whether direct, indirect or economic loss (including loss of profit, business, revenue, goodwill or anticipated savings or other economic loss or damage) arising from:
5.3.1 any inaccuracy of the whole or any part of the Data or the Deliverables or any use of or reliance upon any of them, in whole or in part; or
5.3.2 late or non-performance of the Services or Supplemental Services.

or otherwise, except to the extent to which it is unlawful to exclude any such liability under any applicable law.

5.4 In the event that any exclusion or limitation of liability contained in this Agreement shall be held to be invalid for any reason and the Company becomes liable to the Client for loss or damage that may lawfully be limited, such liability shall be limited to the level of the Fees paid by the Client in the preceding 12 months.
5.5 Notwithstanding any other provision within this Agreement, the Company does not exclude or limit in any way its liability for death or personal injury caused as a result of the negligence of the Company or its employees, agents or authorised representatives.

•6. Client warranty

6.1 The Client warrants, represents and undertakes to the Company that it shall keep the Deliverables confidential and use them only as permitted by clause 4 and that it shall take all necessary precautions to ensure that no unauthorised use is made of (and that no unauthorised person gains access to) them, in whole or in part save where there is a statutory obligation to disclose.
6.2 The Client acknowledges that any and all of the copyright, database right, trade marks, trade names, and other intellectual property rights subsisting in or used in connection with the Deliverables shall be and remain the sole property of the Company.

•7. Indemnity

7.1 The Company agrees to indemnify and save harmless and defend at its own expense the Client from and against any and all claims of infringement of third party rights arising from the provision of Services or Supplemental Services under this Agreement except to the extent that such claims arise as a result of:
7.1.1 the accuracy or the contents of the Data and/or the Deliverables (whether in part or in whole);
7.1.2 late or non-performance of the Services or Supplemental Services; or
7.1.3 anything the Client shall have done or omitted to do (including acts or omissions of third parties allowed by the Client).
7.2 In the event that any such infringement occurs or may occur, the Company may at its sole option and expense procure for the Client the right to continue using any and all Deliverables or repay to the Client the Fee relating to the whole or the infringing part of the Deliverables.
7.3 The Client undertakes to notify the Company promptly of any claim specified in clause 7.1 that is made against the Client and the Company shall have the right to defend any such claims and make settlements at its own discretion. The Client shall give such assistance as the Company may reasonably require to settle or oppose any such claims.
7.4 The Client shall indemnify the Company against all losses, claims for damages and expenses (including reasonable costs) that may be awarded against the Company to any third party or suffered by the Company as a result of the Client's failure to abide by the terms or conditions of this Agreement.

•8. Confidential Information

8.1 The Client agrees that the Confidential Information is confidential and proprietary to the Company and agrees that it shall use the Confidential Information solely as specified in this Agreement. The Client shall not at any time during or after expiry or termination of this Agreement disclose any Confidential Information, whether directly or indirectly, to any third party without the Company's prior written consent.
8.2 Clause 8.1 shall not prevent the disclosure or use by the Client of any information which is or may become, through no fault of the Client, public knowledge, or to the extent permitted or required by law.
8.3 The Client shall ensure that this Clause 8 is observed by itself and by its employees.

•9. Force Majeure

9.1 Neither the Client nor the Company shall be under any liability to the other in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of circumstances beyond its reasonable control which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, terrorism, war, accident, embargo, labour disputes, riot, civil commotion, acts of local government and parliamentary authority.

10. Term and Termination

10.1 In respect of each Service specified on the Proposal, this Agreement shall continue in force for the Initial Term and shall automatically renew for consecutive Additional Terms, unless terminated in accordance with the provisions of this clause 10.
10.2 The Company may, by immediate notice in writing to the Client, terminate this Agreement if any of the following events shall occur:
10.2.1 any outstanding Fees are not paid within 45 days of the invoice;
10.2.2 the Client is in breach of any other obligation under this Agreement and where such breach is capable of remedy, fails to remedy it within 30 days of written notice of the breach from the Company;
10.2.3 the Client, being a body corporate, convenes a meeting of its creditors or to pass a resolution for voluntary winding up; presents a petition or has a petition presented by a creditor for its winding up; ceases or threatens to cease to carry on business; goes into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation);has an administrative receiver or receiver and manager or administrator appointed for it or its assets; enters into a voluntary arrangement with its creditors; suffers any similar insolvency process or process which affords it protection from its creditors; or is deemed by relevant statutory provisions to be unable to pay its debts;
10.2.4 the Client shall at any time, in any way question or dispute the ownership by the Company of the Company's rights described in clause 6.2.
10.2.5 The Client may, by not less than 30 days' notice in writing to the Company, terminate this Agreement on the expiry of the Initial Term or the Additional Term.
10.3 Upon termination, the Company may immediately cancel the Password and the provision of all Services and the Client shall immediately:
10.3.1 pay all outstanding sums due to the Company, under this Agreement or otherwise; and
10.3.2 cease all further use of the Deliverables or any copies.
10.4 Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Company may have under this Agreement or in law.

•11. Miscellaneous

11.1 The Company may assign the benefit of this Agreement to a third party with the consent of the Client (such consent not to be unreasonably withheld or delayed). The Client shall not (and shall not purport to) assign or charge its rights or obligations, in whole or in part, under this Agreement to any third party.
11.2 No relaxation forbearance delay or indulgence by either party in enforcing any of the terms and conditions of this Agreement, or the granting of time by either party, shall prejudice affect or restrict the rights and powers of that party under this Agreement nor shall any waiver by either party of any breach of this Agreement operate as a waiver of or in relation to any subsequent or any continuing breach of this Agreement.
11.3 No amendment or other variation to this Agreement shall be effective unless it is in writing is dated and is signed by a duly authorised representative of each party.
11.4 In the event that any of the terms, conditions or provisions contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
11.5 Any notice to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall be deemed served on a party if given personally, left at or sent by prepaid recorded delivery or faxed or emailed to that party at the addresses or numbers set out in the Proposal, or such others as may be notified from time to time.
11.6 No term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
11.7 This Agreement shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the courts of England.

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