1 FineHOST Ltd. Terms & Conditions 1. DEFINITIONS 1.1 The definitions and rules of interpretation in this Clause apply in these terms and conditions. Agent: a mailing house, fulfilment house, reseller, computer bureau or other agent working on Your behalf. Applicable Regulations: means the Consumer Credit Act 1974, the DPA, the DMA Guidelines, the Representation of the Peoples (England and Wales) Regulations 2001, the Money Laundering Regulations 2003, the Financial Services and Markets Act 2000 (Money Laundering Regulations 2001), regulations made by the Steering Committee on Reciprocity and any other applicable law, regulation or code. Client: where You are an Agent and You are acting on behalf of a third party in Your use of the Site and/or Your purchase of the Services, that third party shall be the Client. If the third party is an individual person and if he/she is an employee and is using You in the performance of his/her job, also his/her employing organisation shall be the Client. Contract: means the legally binding contract comprising the terms and documents set out by Us and accepted by the customer prior to use of the Service. Customer: the person, firm or company who uses the Services, or anyone reasonably appearing to be acting with that person's authority or permission. Customer Data: any data uploaded to the fineit FTPS server. Cleansed Data: any data made available for download from the fineit FTPS server. Cleansed Data Use Conditions: the conditions imposed upon the use of the Cleansed Data or the Services generally. Data Protection Legislation: the Data Protection Act 1998 and any subordinate legislation, together with the applicable codes of practice published by the DMA and the British Codes of Advertising and Sales Promotion Practice. DPA: means the Data Protection Act 1998 and associated sub-ordinate legislation, regulations and/or orders as may be varied or amended from time to time. Fees: the fees and charges payable to fineit by the Customer in relation to the Services, as described in the Services. FineHOST: finehost Limited (a company incorporated in England and Wales with company number ) whose registered office is at 2 Ash Close, Tarporley, Cheshire, CW6 0TY.
2 FineIT: finehost Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. Our: pertaining to Us. Us: fineit. VAT: value added tax chargeable under English law for the time being and any similar additional tax. We: fineit. You, Your You: the individual person using the Service, and if You are an employee and are using the Service to perform Your job, also Your employing organisation. Section Headings are for convenience only, and do not form part of this Agreement. 2. APPLICATION OF TERMS AND CONDITIONS 2.1 These terms and conditions (including the Schedules and third party terms referred to in Clause 7) shall: (a) apply to and be incorporated into the Contract; and (b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's own purchase order, confirmation of order, or services specification, or implied by law, trade custom, practice or course of dealing. 2.2 Any variation of the Contract or to the Services shall either be made via the Web-site and accepted by the Customer in the purchase of any subsequent services or made in writing and signed by or on behalf of the parties. 3. PROVISION OF THE SERVICES 3.1 Any Services ordered by the Customer shall be provided by fineit in accordance with the then current Services Tariff and paid for by the Customer in accordance with the provisions of Clause 8.
3 3.2 fineit grants to the Customer a non-exclusive, non-transferable limited licence to access the Services for the Customer's own business purposes only and upon the terms of the Contract. 3.3 Following the provision of the Customer Data to Us in accordance with the provisions of Clause 6.2, we shall perform the Services in accordance with the Contract and any agreed Services Specification. The Customer acknowledges that not all of the Customer Data will be matched or accurately matched using the Services. 3.4 Once the Cleansed Data has been delivered to the Customer by us, the Customer shall be responsible for all such Cleansed Data and we shall have no further responsibly thereto. The Customer shall check such data for compliance with the terms of the Contract within 2 working days and immediately communicate in writing any problems in relation to such data to us. 3.5 Any advice, recommendation or representation given by us to the Customer or its employees or Agents which is not confirmed in writing by our authorised representative is followed or acted upon at the Customer's own risk and we shall not be liable for any such advice, recommendation or representation provided that nothing in this Clause shall operate to limit or exclude any liability for fraud or fraudulent misrepresentation. 4. CHANGES IN RELATION TO THE SERVICES 4.1 fineit may at any time without notifying the Customer make any changes to the Services which are: (a) necessary to comply with any applicable law, statutory or regulatory requirements; or (b) due to circumstances beyond its reasonable control fineit shall use reasonable endeavours to post information relating to such changes on its website. 5. OUR OBLIGATIONS 5.1 We warrant to the Customer that the Services will be provided using reasonable skill and care. 5.2 Other than is set out in the Contract, the Services shall be provided by us "asis" and "as available" without warranty or condition of any kind. We do not warrant that the Services will be uninterrupted or error free or that we will correct any defects in the Services. 5.3 We shall use reasonable endeavours to complete the Services and provide the Cleansed Data to the Customer, in accordance in all material respects with any agreed Services Specification.
4 5.4 We shall use reasonable endeavours to meet the performance dates and timelines specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence of the Contract. 6. YOUR OBLIGATIONS 6.1 The Customer shall ensure that it complies with the terms of the Contract, the Cleansed Data Use Conditions and/or any reasonable instructions given by us in relation to the Services at all times. Further, the Customer warrants that it has obtained and shall maintain all necessary relevant licences and consents that may be required to use the Services, Customer Data or Cleansed Data. 6.2 The Customer shall at its own expense supply us via our FTPS server with all necessary Customer Data in the required format as is required in relation to the Services and within sufficient time to enable us to provide the Services in accordance with the agreed Services Specification. The Customer shall ensure the accuracy of all such Customer Data and we shall not be held responsible or liable whether in accordance with the Contract or otherwise in the event the Cleansed Data or Services are inaccurate as result of any failure, act or omission by the Customer in accordance with this Clause The Customer shall retain duplicate copies of all Customer Data sent to us and we shall not be liable or responsible for any damage, corruption or loss however caused. 6.4 The Customer shall not: (a) attempt to duplicate, modify or distribute any portion of the Services; or (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the software relating to the technical elements of the Services, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or (c) transfer, temporarily or permanently, any of its rights under the Contract, or (d) attempt to obtain, or assist others in obtaining, access to the Services, other than as permitted by the Contract or expressly by us in writing from time to time. 6.5 The Customer agrees that, subject to it being given reasonable prior written notice, it shall permit us or our licensors and its authorised independent auditors to have reasonable access during the Customer's normal business hours to the Customer's relevant premises and relevant operations for the sole purpose of conducting an audit to ensure that the Customer is complying with its obligations under the Contract. The Customer shall provide all reasonable assistance in this regard. 6.6 In the event of any breach, act or omission by the Customer any of its obligations under the Contract it shall indemnify fineit for any loss and damage
5 which we suffer as a result of the Customer's breach, act or omission including in relation to any loss, damage or claims from any third party supplier or owner of data (including the Customer Data) or third party terms passed on to the Customer by virtue of the Contract. 7. THIRD PARTY SUPPLIERS TO FINEIT 7.1 Services supplied to the Customer during the term of the Contract and the Customer's use of the Services and the Cleansed Data are subject to, the terms and conditions of the Contract and, the relevant end-user terms imposed upon us by our third party suppliers some of which are set out in Appendix 1. Where the Cleansed Data contains data derived from data licensed to fineit by a third party supplier then the Customer shall comply with all such applicable terms and conditions as set out in Appendix 1. Where there is conflict between such terms and conditions and the other terms and conditions in the Contract, save for Clauses 11 and 13, those third party terms and conditions shall prevail. 7.2 The Customer acknowledges and understands that the Services involve the use of a variety of fineit and third party data which is often based upon and comprises data provided to us by third parties or is otherwise publicly available and as such we are unable to control or verify the accuracy and/or completeness of such data. 7.3 The Customer acknowledges that the warranty and assurances that fineit provides to the Customer in relation to those elements of the Services sourced by us from third party providers and suppliers is limited to the level of warranty and assurances provided to us and the Customer by such third party suppliers or service providers which may provide their own additional warranties and assurances or impose their own conditions some of which are set out in Appendix 1. We offer no warranties of any kind whatsoever for the accuracy of data, products and services licensed from, or provided to us, by third parties. 7.4 Prior to, or at any time during the provision of the Services, upon our reasonable request, the Customer shall execute any other agreement, condition or otherwise which is considered necessary by the third party providers of services or data to us or which we in turn are obligated to impose upon the Customer in relation to the provision of the Services. In the event the Customer is not willing to execute any such agreement or condition, provided that no Fees are outstanding to us, the Customer may terminate the Contract upon 14 days notice in writing to us. 8. FEES AND PAYMENT 8.1 The Fees and any additional sums which are agreed between fineit and the Customer for the provision of the Services shall be payable by the Customer in accordance with this Clause fineit will invoice the Customer at the then prevailing Services Tariff following the delivery of Cleansed Data or relevant Services, or at other times agreed in writing with the Customer. Time for payment shall be of the essence of the Contract.
6 8.3 The Customer shall pay the Fees in full, and in cleared funds, within 30 days of the date of invoice. Each invoice shall be paid to fineit (without deduction or setoff). 8.4 All stated Fees and Services Tariff exclude VAT which fineit shall add to its invoices at the appropriate rate. 8.5 Without prejudice to any other right or remedy that we may have, if the Customer fails to pay us on the due date we may: (a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. We may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and (b) suspend all services or future services until payment has been made in full. 8.6 All payments payable to us under the Contract shall become due immediately on termination of the Contract, despite any other provision. This Clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract. 8.7 We may, without prejudice to any other rights we may have, set off any liability of the Customer to us against any liability of fineit to the Customer. 9. INTELLECTUAL PROPERTY RIGHTS 9.1 Nothing in the Contract shall act to transfer or assign to the Customer rights of title or ownership in the Intellectual Property Rights or database rights in the software and technical solutions used by fineit in the provision of the Services ("Solution"), or any data or data sources or reports used by us for the provision of the Services ("Solution Data") and all such rights in the Solution and Solution Data are and shall remain the exclusive property of fineit and/or the third party owner of such rights. 9.2 The Customer shall immediately notify us of any infringement or suspected infringement by any third party of the Intellectual Property Rights or database rights in the Solution, Solution Data and/or Services of which the Customer becomes aware and shall assist us to take such action as we deem appropriate to protect such rights at our request and expense. 9.3 As between the parties, all Intellectual Property Rights and all other rights in the Customer Data shall be owned by the Customer. The Customer hereby licenses all such rights to fineit free of charge and on a non-exclusive basis to such extent as is necessary to enable us to provide the Services and comply with the terms of the Contract or as is envisaged by the parties.
7 9.4 The Customer warrants that any Customer Data and Cleansed Data and its use by us for the purpose of providing the Services will not infringe any rights of confidentiality or any Intellectual Property Rights of any third party and the Customer shall indemnify and hold harmless fineit against any loss, damages, costs, expenses or other claims arising from any such infringement. 9.5 Any disclaimer, copyright or other proprietary notices in the Services or the Cleansed Data shall not be deleted or altered by you or your Client (as applicable). 10. CONFIDENTIALITY 10.1 fineit shall keep in strict confidence all Customer Data and Cleansed Data The Customer shall keep in strict confidence all business information, technical or commercial know-how, specifications, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by fineit or its agents, and any other confidential information concerning our business or our services which the Customer may obtain. The Customer shall restrict disclosure of such confidential information to such of its employees, agents or sub-contractors as need to know it The provisions of this Clause 10 shall not apply to any information, documents or other materials which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party or are already in the possession of the relevant party in addition they shall survive termination of the Contract, however arising. 11. LIMITATION OF LIABILITY 11.1 The following provisions set out the entire financial liability of fineit (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of: (a) any breach of the Contract; (b) any use made by the Customer of the Services, the Cleansed Data or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract Nothing in these Clauses excludes the liability of fineit: (a) for death or personal injury caused by our negligence; or
8 (b) for fraud or fraudulent misrepresentation Subject to Clause 11.2 and Clause 11.3: (a) fineit shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss or for any special, indirect or consequential loss costs, damages, charges or expenses however arising. (b) fineit s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 2,000 OR the price paid for the Services by the Customer during the past 12 months whichever is the greater Subject to Clause 11.2 and Clause 11.3, if the Customer has any claims in relation to any breach of breach by fineit of the Contract such claim must be made in writing to us within 30 days of the event which gives rise to the claim. We may at our option resupply the Service(s) free of charge or credit the amount paid or payable by the Customer in respect of the Service in full and final settlement of any and all liability to the Customer if we consider in our sole opinion that the Customer's claim has merit Subject to Clause 11.2 and Clause 11.3, fineit shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any Customer Data or Cleansed Data or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer Subject to Clause 11.2 and Clause 11.3, fineit shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any data which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form when such data is sourced by fineit from third parties and used in the provision of the Services. 12. TERMINATION 12.1 Either party may terminate the Contract at any time upon not less than 30 days notice to the other in writing Without prejudice to any other rights or remedies to which the parties may be entitled, fineit may terminate the Contract or any element of the Services without liability to the Customer immediately on written notice to the Customer if for any reason the agreement fineit has with any third party provider or supplier of data services to fineit is terminated or suspended and we are unable to continue the performance of the Services in accordance with the terms of the Contract. In this event we shall, unless the Customer has Fees outstanding to us in which case we may offset any such monies held against such Fees (if any), make a refund to the Customer of the amount of any Fees held by us.
9 12.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if: (a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or (d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or (f) the other party ceases, or threatens to cease, to trade; or (g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt. 13. DATA PROTECTION 13.1 Each party warrants that it shall at all times comply with and be bound by the provisions of the Applicable Regulations and each confirms that it has (and that it shall maintain) adequate notifications under the DPA in relation to the use and provision of the Services (as applicable) fineit will hold any personal data contained within the Customer Data only on behalf of the Customer and to the Customer's order and at all times in accordance with the 7th principle of the DPA Each of fineit and Customer will indemnify the other in relation to any loss and damage suffered as a result of a breach by the other of Clause 15.1 or any provisions of the Applicable Regulations.
10 14. FORCE MAJEURE 14.1 fineit shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation any inability to access the Internet (whether as a result of a failure by the relevant Internet service provider to supply access or otherwise), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. 15. WAIVER 15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law. 16. SEVERANCE 16.1 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties. 17. GOVERNING LAW AND JURISDICTION 17.1 The Contract and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract. 18. USE OF CLEANSED DATA In using any Cleansed Data the Customer shall comply at all times with the then current version of the DMA Code of Practice published by The Direct Marketing Association (UK) Limited, whether or not it is a member of that Association as if it were a member In the instances where any Cleansed Data contains telephone or fax number information or other (information that is subject to suppression obligations) and such information will be used for sales and marketing purposes, it is the
11 responsibility of the Customer to ensure that any such numbers or information used are screened against the relevant preference service lists and any other applicable suppression databases The Customer shall not use the Services and Cleansed Data in order to provide any form of credit referencing, debt collection, identity authentication or fraud prevention or other similar purpose on behalf of any third party The Customer shall not resupply any Cleansed Data to a third party (including for the avoidance of doubt within its own group of companies or affiliates) without first obtaining our written consent. APPENDIX 1: THIRD PARTY TERMS 1. Directory Information Licence Conditions Relating to British Telecommunications Plc Operator Services Information System Data. 1.1 The Licensee shall: in all its dealings with or relating to information originating for the BT OSIS database comply with all applicable laws, statutes, regulations, order and codes of practice (voluntary or otherwise) including, without limitation the Data Protection Act 1998, the Code of Practice and the legislation/regulations implementing Directive 2002/58/EC of the European Parliament and of the Council of the European Union (all such laws, regulations, statutes, orders and codes being hereinafter collectively referred to as Data Protection Measures ) which may affect the exercise of the Rights granted under this agreement comply with all reasonable requests made by the Service Provider or by BT in relation to the End-user s use of the Information, and, where possible, implement within a reasonable time any actions requested by the above and deemed necessary to maintain compliance with the terms use all reasonable endeavours in relation to the security of the Database and Amendment Information to prevent any unauthorised disclosure of the Database or Amendment Information or any part of them. 1.2 The Licensee shall not: sublicense or purport to sublicense any of the Rights granted by these terms export or permit the export of any material amount of the Information to a country which is not within the European Economic Area without the express consent of BT use any information derived from the service other than for its own internal use or for sale to a specific client for single usage in accordance with these terms.
12 1.2.4 do or omit or permit to be done or omitted any act or thing which would place or would be likely to place BT in breach of any data protection legislation or any code of practice (including without limitation the Data Protection Measures) or which would be contrary to the terms of any relevant registration.