1. Definitions
The following terms shall have the following meanings:
"Agreement" means the agreement between Simunix and the User pursuant to clause 2.
"Commencement Date" means the date of acceptance by Simunix of the Customer Order duly confirmed and accepted without reservation by the Customer.
"Data" means the list rental data more particularly set out in the Customer Order.
"Data Subject" means any person or firm included in the Data.
"Latest Delivery Date" means either 28 days after the Payment Date or where extended delivery has been agreed the agreed delivery dates as stated in the Customer Order or as agreed by both parties under clause 5.5
"Credits" means User credits.
"Improper Use" means any use of the Data in an unlawful or disreputable or threatening manner or using the Data in such a manner so as to contravene any rules or regulations from time to time promulgated by any body regulating the conduct of the User's business or the use of the Data.
"Payment Date" means the date for payment for the Data as set out in the Customer Order.
"the Period" means a period of 6 months from and including the Commencement Date.
"Price List" means the list of prices to be charged for the supply of the
"User" means the person ordering the Data and where the User is an organisation for the avoidance of doubt does not include any subsidiary or holding company of the User as defined in section 736 of the Companies Act 1985.
"Stated Use" means the use to which the User will put the Data
"Supplier" means Simunix Ltd whose principal place of business is at The IT Centre, York Science Park, York YO10 5DG
"Virus" means a computer virus which interferes or has the capacity to interfere with a computer's correct and proper functioning within the commonly understood meaning of the term "computer virus".
2. Agreement
In consideration of the payment by the User to Simunix of the charges set out in the Price List Simunix has agreed to supply the User with the Data, upon the terms set out in these Standard Terms and Conditions.
3. Supply of Data and/or Credits
Simunix agrees to supply to the User the Data and/or Credits in accordance with and subject to these Standard Terms and Conditions.
Data
3.1 The User warrants that it will use the Data within 3 months from the Commencement Date notwithstanding the Data may have been supplied at a later date.
3.2 The User warrants that it will not sell lease hire loan pledge gift or otherwise make available dispose of or part with possession of the Data in any manner or on any medium in whole or in part or allow any other person to use or copy the Data in whole or in part.
3.3 the User warrants that it will only use the Data once and that it will not use the Data for any Improper Use.
3.4 For the avoidance of doubt one use of the Data shall be:-
3.4.1 where only the address is supplied then the once only use of each address for a mail campaign only;
3.4.2 where only the telephone number is supplied then the once only use of each telephone number in a tele-marketing campaign;
3.4.3 where the telephone number and the address is supplied then the once only use of the address in a mailing campaign and the once only use of the telephone number in a tele-marketing campaign.
3.5 The User warrants that the Data will only be used by the User for the User's own business use pursuant to the terms hereunder and the User will not transmit or otherwise reveal the Data to any person or persons not employed in the User's business.
3.6 If Simunix has expressly agreed in writing that the Data is supplied by Simunix to the User on an exclusive basis, Simunix undertakes to use all reasonable endeavours to ensure that it will not itself during the Period supply the Data to any other party which is in the same or similar business as the User. Notwithstanding the foregoing and even if Simunix has agreed that the Data is supplied to the User on an exclusive basis:
3.6.1 Simunix may supply the Data freely during the Period to any other party which is in the same or similar business where the Data Subject has specifically requested in writing to receive information on that particular subject matter;
3.6.2 Simunix may supply the Data freely to any other party after the Period has elapsed; and
3.6.3 nothing in this clause shall prevent elements of the Data being utilised for the purposes of other list printed data developed for the purposes of addressing different subject matters or target groups from the Data
3.7 Simunix does not warrant nor give any undertaking that the Data shall be free from errors or inaccuracies nor that it is a complete list of the category of persons or things described therein.
3.8 Simunix does not undertake to provide replacement names where the Data is inaccurate or contains errors subject to:-
3.8.1 where satisfactory evidence is provided by the User to Simunix within 3 months of the Commencement Date of fundamental discrepancies or errors in the Data then Simunix may replace names at its absolute discretion.
3.8.2 where satisfactory evidence is provided by the User to Simunix within 3 months of the Commencement Date that the person included in the Data no longer resides at the address or is not connected to the telephone number then Simunix warrants to provide replacement names free of charge. Simunix shall have discharged its obligations under this clause if it has supplied replacement names and it shall be under no obligation whatsoever to replace those names if those names are themselves inaccurate or contain errors.
3.9 For the purposes of clause 3.8 the meaning of satisfactory evidence shall be:
3.9.1 production of dispatch marked "not known at this address" by the Post Office or words to similar effect; or
3.9.2 a written report from the User listing the errors or presenting evidence (acceptable to Simunix) of the errors in sufficient detail; or
3.9.3 some other evidence that Simunix may at its sole discretion accept as satisfactory.
3.10 Simunix neither warrants nor guarantees nor is it a condition of this Agreement that the Data supplied is likely to be successful in the stated use.
3.11 Without prejudice to any other terms in this Agreement the aggregate liability of Simunix in respect of claims of whatsoever nature arising out of or in respect of any breach by Simunix of any obligations or duty relating to the Data or its sale supply or use (including without limitation any liability of Supplier for negligence or breach of copyright) under the terms of this Agreement or otherwise shall not in any circumstances exceed the total sum payable by the User to Simunix under this Agreement.
3.12 Simunix shall not be liable to the User for any indirect or consequential losses including but not limited to loss of profits, loss of earnings, loss of business or goodwill or business interruption or damages in respect of any breach of the terms of this Agreement.
3.13 Simunix shall itself be entitled to contact any persons whose names are contained in the Data without the prior consent of or notification to the User.
3.14 Simunix may inform the User from time to time by e-mail fax or telephone of Simunix's products and services. If the User does not wish to receive this service or part of this service the User should inform Simunix in writing at Simunix's address.
3.15 Neither Simunix's supplier nor the Data will be identified by the User as a source of reference except where required by law in relation to Data Protection legislation or the DMA Code of Practice or with prior written permission from Simunix and Simunix shall have the right to refuse such permission.
3.16 The User acknowledges and agrees that Simunix shall have the right to include a number of check names in the Data in order to ensure that the Data is used in an authorised manner and in accordance with the terms and conditions of this Agreement.
Credits
3.17 The User warrants that it will not sell lease hire loan pledge gift or otherwise make available dispose of or part with possession of the Credits in any manner or on any medium in whole or in part or allow any other person to use the Credits in whole or in part.
3.18 Unless otherwise stated in the Customer Order the User warrants that it will only use the Credits once and that it will not use the Credits for any Improper Use.
3.19 The User warrants that the Credits will only be used by the User for the User's own business use pursuant to the terms hereunder and the User will not transmit or otherwise reveal the Credits to any other person.
3.20 Without prejudice to any other terms in this Agreement the aggregate liability of Simunix in respect of claims of whatsoever nature arising out of or in respect of any breach by Simunix of any obligations or duty relating to the Credits or its sale supply or use (including without limitation any liability of Supplier for negligence or breach of copyright) under the terms of this Agreement or otherwise shall not in any circumstances exceed the total sum payable by the User to Simunix under this Agreement.
3.21 Simunix shall not be liable to the User for any indirect or consequential losses including but not limited to loss of profits, loss of earnings, loss of business or goodwill or business interruption or damages in respect of any breach of the terms of this Agreement.
3.22 Simunix may inform the User from time to time by e-mail fax or telephone of Simunix's products and services. If the User does not wish to receive this service or part of this service the User should inform Simunix in writing at Simunix's address.
4. Duration
Data
4.1 Without prejudice to any other right or remedy the User's right to use the Data shall terminate upon whichever is the sooner of:
4.1.1 the expiry of a 3 month period commencing on the Commencement Date; or
4.1.2 subject to the Customer Order the use by the User of the Data by whatever medium.
4.2 Upon termination of the User's right to use the Data pursuant to sub-clause 4.1 the provisions of Clause 10 of these Terms and Conditions shall apply.
Credits
4.3 Without prejudice to any other right or remedy the User's right to use the Credits shall terminate upon whichever is the sooner of:
4.3.1 the expiry of a 12 month period commencing on the Commencement Date; or
4.3.2 the use by the User of the Credits by whatever medium.
5. Charges
5.1 In consideration of the supply of the Data by Simunix to the User, the User shall pay to Simunix the charges set out in the Price List
5.2 All fees, charges and other sums payable are payable in advance by the Payment Date unless otherwise stated and are subject to VAT at the rate then currently applicable.
5.3 Interest at the rate of 4% per annum above the base rate of Barclays Bank Plc from time to time is payable on all sums outstanding after the Payment Date.
5.4 If the Data is not supplied to the User for any reason, by the Latest Delivery Date (other than due to non payment by the Latest Delivery Date) then the User may immediately terminate this Agreement by giving notice in writing to Simunix and shall have no further claim against Simunix.
5.5 Simunix will inform the User as soon as reasonably practicable of any delays likely to cause the Data to be delivered to the User later then the Latest Delivery Date and where both parties agree an extension period the date this period ends shall be the Latest Delivery Date.
5.6 If the Data is used more than once in breach of this Agreement the User shall pay to Simunix the charges set out in the Price List for each such unauthorised use and for the purposes of this sub clause such sums will be deemed to be owing to Simunix from the date upon which the unauthorised use occurred. Nothing in this clause shall act to create a licence to the User to use the Data.
6. Indemnity
6.1 The User indemnifies Simunix against any loss or expense sustained by reason of any breach by the User of this Agreement
6.2 The User indemnifies Simunix against any actions, proceedings, claims or demands in any way connected with this Agreement brought against Simunix by a Third Party which are caused by or arise from any act or omission by the User pursuant to this Agreement.
7. Copyright and other Intellectual Property
All intellectual property rights, database rights and title in the Data will remain vested in Simunix (or Simunix's licensors) and to the extent that any rights in the Data vest in the User by operation of law, the User hereby assigns such rights to Simunix. Nothing in this Agreement is intended to affect or give rise to any assignment of copyright or other intellectual property right howsoever conferred acquired or obtained over the Data and the User hereby acknowledges that it acquires no such proprietary rights.
8. Verification
Simunix inserts a small amount of false Information into the Data for the purpose of ensuring that no breach of these Terms takes place by the Customer or any Purchaser. The User agrees not knowingly to delete any such false information and to notify Simunix immediately upon becoming aware of any unauthorised use of the Data.
9. Termination
9.1 Simunix may terminate this Agreement immediately by notice if the User has not paid the fees or charges due for the Data by the Payment Date.
9.2 Without prejudice to Clause 9.1 Simunix may terminate this Agreement immediately at any time by giving written notice if the User commits any breach of the terms and conditions of this Agreement and fails to remedy such breach (where such breach is remediable) within 7 days of receiving written notice from Simunix requiring it do so. Where the breach (for example, breach of Permitted Use) is deemed in the absolute discretion of Simunix to be material Simunix may suspend the Service indefinitely and without notice pending investigation and clarification of the suspected breach.
9.3 Simunix may terminate this Agreement immediately at any time on the happening of any of the following events:
9.3.1 A material breach of these Terms and any special terms applying to a particular service, whether or not such breach is remediable.
9.3.1 A resolution for the User's winding up being passed, except for the purpose of a reconstruction or amalgamation, or
9.3.2 The User being unable to pay its debts within the meaning of the Insolvency Act 1986 Section 123, or
9.3.3 An encumbrance, a taking possession, or a receiver, or an administrative receiver being appointed or a petition being presented for the appointment of an administrative receiver in respect of the whole or any part of the User's undertaking or assets.
9.4 Simunix may in addition terminate this Agreement if it is unable to supply the Data in accordance with the Customer Order whereupon it will refund any payment received from the User in respect of any unsupplied Data.
9.5 Termination of this Agreement for any reason shall be without prejudice to the accrued rights of either party as at the date of termination.
9.6 Any waiver by Simunix of any breach of this Agreement by the User shall not operate as a waiver of any other past or future breach.
10. Consequences upon Termination
10.1 Upon termination or expiry of this Agreement the User shall:
10.1.1 Destroy, or if requested by Simunix, return to Simunix any Data whether it be on paper or any other physical or tangible medium
10.1.2 Permanently delete or procure the permanent deletion of all Data from all computer files and computers and if required so to do by Simunix, provide a written assurance in such form as Simunix may reasonably require that such deletion has been effected.
10.1.3 Return to Simunix all and any magnetic Data where property in the said media remains with Simunix and the User shall ensure that such media are adequately labelled and packaged to avoid damage.
10.2 For the avoidance of doubt the meaning of Data in clause 10.1 shall not include those names and corresponding addresses which as a result of using the Data for its stated use are customers of the User, which shall include those persons who have agreed to be contacted by the User in the future.
11. Cancellation
If the User should cancel an Order in full or in part before delivery of the Data then the User shall remain liable for all the charges as detailed in the Price List but Simunix may at its sole discretion for any reason whatsoever reduce the amount owed.
12. Data Protection and Advertising Standards
12.1 The User warrants that it will at all times comply with all relevant Advertising Standards and direct marketing guidelines, regulations and legislation (as such guidelines, regulations and legislation are amended, consolidated, extended or replaced from time to time) including Data Protection legislation (and in particular but without limitation it shall comply with the data protection principles referred to in the Data Protection Act 1998 (to the extent relevant) and will ensure that all individuals whose Personal Data (if any and which term shall have the meaning specified in the Data Protection Act 1998) is passed to Simunix by the User or to which Simunix has access, have given consent to (a) the processing by Simunix of such of their Personal Data and (b) the transfer of such data outside the European Economic Area if the User requests such transfer or as is necessary in the performance of Simunix's obligations under or as otherwise provided for in this Agreement), the Financial Services and Markets Act 2000, the Privacy and Electronic Communication (EC Directive) Regulations 2003 and regulations made thereunder and shall upon the request of Simunix provide sufficient evidence that it has complied with such guidelines regulations and legislation and all relevant consents and approvals which it has obtained.
12.2 Without prejudice to the generality of clause 12.1 the User shall itself carry out such checks and searches as may be required under the Privacy and Electronic Communication (EC Directive) Regulations 2003 prior to use of the Data, Simunix being under no obligation to carry out such checks and searches for or on behalf of the User or prior to the supply of the Data to the User and shall comply with all relevant codes of practice with respect to its use of the Data including "Direct Marketing Association (UK) Limited Code of Practice", Telephone Preference Services rules, Fax Preference Service rules, "The British Code of Advertising Practice", "The British Code of Sales Promotion Practice" and "The Advertising Association's Standards of Practice in List and Database Management" (as such codes are amended and re-drafted from time to time). Notwithstanding the foregoing Simunix may carry out such checks and searches prior to the supply of the Data and afterwards but Simunix does not warrant that it will carry out those checks and searches or that they will be complete or accurate although it will use its reasonable endeavours to ensure that they are.
12.3 In the event that the User shall be in breach of the above sub-clauses the User shall immediately rectify the breach and fully indemnify Simunix against any fines, costs, claims, demands and expenses incurred by Simunix as a result of the User's breach.
13. Severance
Should any of this Agreement be found to be unenforceable or contrary to law by any competent authority the remaining provisions shall remain in force and effect.
14. Viruses
Simunix shall not be liable to the User or any other party for any cost damage or expense howsoever arising as a result of any Virus irrespective of the source of that Virus.
15. Force Majeure
Notwithstanding the provisions of this Agreement Simunix shall not be liable for any loss suffered or incurred by the other party as a result of any act of God, war, lockout, strike, fire, flood, delay in transit, postal delay, riot or other unexpected or exceptional cause or circumstance beyond Simunix's control in which case Simunix shall be entitled to cancel this Agreement or delay the performance thereof for as long as necessary.
16. Limitation of Assignment
This Agreement and the benefit of any rights and licences granted by Simunix to the User by this Agreement shall be personal to the User and the User shall not assign the benefit of the Agreement either in whole or in part.
17. Agreement Terms
The parties contract upon these Terms and Conditions which shall prevail over any inconsistent terms which the User may seek to introduce. Such inconsistent terms shall have no effect.
18. Agreement Variation
No variation to the terms or conditions of this Agreement shall be effected unless expressly agreed in writing by both parties. This Agreement supersedes all agreements and understandings between the parties whether written or verbal save for agreements in writing which are expressly subject to or expressly vary the terms of this Agreement.
19. Waiver
If Simunix waives a breach of contract by the User that waiver is limited to that particular breach and no delay by Simunix acting upon a breach of contract will be regarded as waiver.
20. Proper Law and Jurisdiction
This Agreement is made in England according to English law and is subject to the jurisdiction of the English Courts.
21. Refunds Policy.
Refunds may be granted at the discretion of the management