(1) DATA OWNERSHIP
All Data or parts thereof are owned by and copyrighted by EGIL or its Agents. Unless otherwise specified in the Contract EGIL's or its Agent’s data is leased to the Buyer for 12 months use only and no intellectual property rights of any Data shall pass to the Buyer under the Contract. The Data must not be copied or recorded by the Buyer or its Agents, or in any way processed by the Buyer or its Agents other than in accordance with the Contract or as agreed in writing by EGIL. Data supplied must, in no circumstances, be offered for resale by the Buyer.
(2) DATA ACCURACY
(a) EGIL uses all reasonable endeavours to ensure Data is accurate and up-to-date. However, as lists are compiled from a variety of sources, EGIL cannot warrant that any of the records are 100% complete. Whilst EGIL agrees that all Data has been fairly and lawfully obtained in accordance with the Data Protection Act 1998, no warranty is given regarding the accuracy or completeness of individual addresses, contact names or telephone numbers or that any list is a complete compilation of the categories of persons or establishments described therein.
(b) EGIL is not responsible or liable for email addresses that prove to be undeliverable due to technical reasons. A list of Undeliverables including a reason for non-delivery must be returned to EGIL in an Excel or comma separated format document within 30 days of the send date of the campaign that generated the Undeliverables, if EGIL are to be expected to investigate.
(c) EGIL’s offer to investigate shall not apply where the Buyer decides to use a method of delivery such as the use of an SMTP (Single Message Transfer Protocol) such as Outlook, Netscape and Lotus.
(a) EGIL does not accept liability for the outcome of the use of its Data. In no event will EGIL be liable for any loss of profit, revenue, goodwill, opportunity, business, third-party cost, or other indirect or consequential loss of any kind in contract, tort (including negligence) or otherwise arising out of use of its Data, save where such liability cannot be excluded by law.
(b) The Buyer warrants it shall ensure that its Users shall only use the Database in accordance with the terms of this Agreement and shall not infringe any of EGIL’s IPRs in the Database. The Buyer agrees to fully indemnify EGIL against any losses, damages or costs incurred by EGIL as a result of any breach of these warranties.
(c) For the purposes of this Agreement EGIL and the Buyer both are data controllers where the contract relates to a data Licence or Subscription. Both parties will comply with all applicable Data Protection Legislation in connection with the processing of Personal Data pursuant to this Agreement and will not do, or cause, or permit to be done, anything which may result in a breach by the other party of the same. In particular both parties will: (i) ensure that it is notified with the
Information Commissioner’s public register of data controllers and such notification is accurate and up-to-date; (ii) implement and maintain appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Such measures will be appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage to Personal Data and to the nature of the Personal Data to be protected; and will (iii) promptly notify the other party if it receives a request from an individual for access to their Personal Data. Each party will also promptly notify the other party of any other complaint or request relating to either party’s obligations under relevant Data Protection Legislation and will provide full cooperation and assistance to the other party in relation to any such complaint or request (including, without limitation, by allowing individuals to have access to their Personal Data).
(d) The Buyer will not transfer any Personal Data that it receives pursuant to this Agreement to any third party or outside the European Economic Area without EGIL’s prior written consent.
(e) Without limitation, EGIL does not provide any warranties or representations regarding: (i) the accuracy, timeliness or completeness of the Database or the Service; (ii) the satisfactory quality, merchantability, suitability or fitness for purpose of the Database or the Service; (iii) the results that may be obtained from reliance on the Database or the Service; (iv) the performance, availability, lack of negligence, workmanlike effort or delivery of the Database or the Service; or (v) the provision of the Service free from any virus, worms, time locks or anything else that has contaminating or destructive properties. Furthermore, the Database is only for general information and use and is not intended to address particular requirements. In particular, the Database does not constitute any form of advice, recommendation, representation, endorsement or arrangement by EGIL and is not intended to be relied on in making (or refraining from making) any specific investment or other decisions. Appropriate independent advice should be obtained before making any such decision. Any information received through the Service, whether or not it is classified as “real time”, may have ceased to be current at the time it is received. Without limiting the foregoing: (vi) the Buyer agrees that EGIL shall not have any liability for any late delivery of, inaccuracies or omissions in the Database or the Service; and (vii) the Database is provided “as is” and neither EGIL nor its partners who have been involved in the creation, production or delivery of the Database or the Service shall be liable for any direct or indirect damages arising out of the use of, or the inability to use the Database or the Service.
(4) BUYER’S OBLIGATIONS
(a) agrees to comply with any requests for the suppression of deceased names and also notify EGIL of any request received by the Buyer for the suppression of a deceased name or disputed data that can be identified as being included in the Data supplied by EGIL, within 30 days of receipt of the request.
(b) agrees to notify EGIL within 30 days of receipt, of any request for access to, or the correction or the deletion of inaccurate data it receives from an individual whose name can be identified as being included in the Data supplied by the EGIL to the Buyer.
(c) agrees to notify EGIL if any Data is found to be out of date or incorrect.
(d) will, where email Data is leased to send emails, ensure that the recipient is given a simple means to opt-out of receiving further communications. The Buyer must not conceal its identity when sending, or instigating the sending of, a marketing message by electronic mail. The Buyer must provide a valid email address to which the recipient can send an opt-out request. The Buyer must forward to EGIL the details of any recipients who do exercise their right to opt-out including any comments that may be made by such recipients in an Excel or comma separated format document.
(e) will, where Data is leased to send postal marketing, ensure that they forward to EGIL Limited the details of any recipients who do exercise their right to opt-out of further postal marketing including any comments that may be made by such recipients in an Excel or comma separated format document.
(f) shall inform EGIL in writing if they close, cease to trade, go into administration or liquidation as the Data must ceased to be used as it cannot be sold on as part of a company’s assets or transferred to another company.
(5) THE SERVICE
(a) EGIL shall provide the Buyer with access to the Service through the company IP addresses.
(b) The Buyer (including its Users) shall keep confidential and shall not share with any third party any “PIN”, “ID” or similar code (if applicable) that it is provided with to facilitate User access to the Service.
(c) The Buyer shall be responsible for obtaining and maintaining all terminals, telephone, computer hardware and other equipment needed for access to and use of the Services and all charges related thereto. The Buyer acknowledges that the speed of the Service will depend upon the specification and quality of the Buyer’s own terminals, connection to the Internet and the extent of the Buyer’s use of the Internet.
(6) eGOLD DATA SERVICES
The Service will constitute the following
(a) Access to the EGIL on-line database 24 hours a day, seven days a week, with the exception of those circumstances outlines in the clauses above.
(b) The service will consist of a web-based interface, accessible via either Netscape or Internet Explorer. The interface has been designed and will be maintained by EGIL
(c) The data supplied through this interface will be updated by EGIL on a daily basis. There are no third party suppliers or sponsors of this product.
(d) This license permits unlimited reasonable usage of eGOLD Recruitment, by the buyer for the period of one calendar year from the commencement date. If usage is deemed to be unreasonable then discussions will be held with the buyer.
f) If for any reason, usage rises to a level where by EGIL are advised that the infrastructure is inadequate to continue, service may be suspended until alternative arrangements can be made. Service will be restored as soon as reasonably practicable after such temporary suspension.
(7) USE OF DATABASES AND INTELLECTUAL PROPERTY RIGHTS
(a) Subject to the terms of this Agreement, EGIL hereby grants to the Buyer a nonexclusive, nontransferable, non-sub-licensable licence to allow its Users to use the Database for their own personal internal business use and for no other purpose.
(b) If Data is leased by a Buyer for a third party company then the Data is only authorised to be used for the marketing purposes of that one third party company and not also the Buyer himself. EGIL will require written confirmation of the third party company's name and company details before releasing the data.
(c) The Buyer shall be liable for the loss or misuse of Data whilst in its care, or the care of his Agent. It will be deemed an Unauthorised misuse of a list if the list is used for any activity other than the purpose for which it was originally provided. The Buyer undertakes to keep lists and any copies or extracts of lists supplied by EGIL secure and completely safeguarded against unauthorised use or disclosure.
(d) Users may access, extract and re-utilise any insubstantial parts of the contents of the Database for research and current awareness purposes only in the normal course of business which includes: (i) making searches of the Database; (ii) making one or more copies in hard copy form of the output of any search provided that such copies may not be sold and may not be distributed to anyone who is not a User; and (iii) downloading search results to hard disk provided that such data are not made available to anyone who is not a User; at all times provided that the systematic extraction and/or re-utilisation of insubstantial parts of the Database shall not conflict with the normal exploitation of the Database and shall not cause prejudice to the interests of EGIL.
(e) Prior to providing Users with access to the Database via the Service, the Buyer shall ensure that all Users are aware of the terms of this Agreement, including their obligation to comply with any other user terms applicable to the Service and notified to the Buyer. The Buyer shall only provide Users with access to the Service via the access method provided by EGIL and shall not provide access to anyone other than a User.
(f) The Buyer and its Users may not use the Database and the Service in any way which in
EGIL’s reasonable judgment, adversely affects EGIL’s business or business prospects, or where EGIL has been misled about either the contents or the Client, or it affects the performance or function of the Database or the Service or interferes with the ability of other Users to use the Database or the Service.
(g) Except as expressly permitted by this Agreement, the Buyer shall not and shall ensure that its Users do not copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Database or set up derived databases.
(h) EGIL reserves complete freedom in the form and content of the Database and may add to, remove or edit the contents of the Database at any time on a permanent or temporary basis and with or without notice.
(i) EGIL reserves the right to monitor Database usage by all Users (in terms of volume, frequency or otherwise) during the term of this Agreement.
(j) EGIL reserves the right to monitor its Database usage by all Users with the use of ‘seeds’. These are dummy entries in the database which contain contact details owned by EGIL. They exist to protect EGIL’s intellectual property and copyright. EGIL do not pass out individual seed addresses to The Buyer or their Agents even in the event of a dispute as it leaves EGIL’s Data unprotected.
(k) This Agreement does not constitute a sale of the Database or any part of it and except as expressly provided in this Agreement no rights or licences, express or implied, are hereby granted to the Buyer or its Users in respect of the Database. The Buyer acknowledges that EGIL, EGIL (or its licensors) is throughout the world the owner of all IPRs subsisting in the Database. Nothing herein contained shall be construed so as to transfer any IPRs whatsoever in the Database to the Buyer or its Users.
(l) The Buyer acknowledges and agrees that: (a) all use of EGIL’s Marks hereunder to the benefit of EGIL, (b) EGIL’s Marks will remain the exclusive property of EGIL, (c) nothing in this Agreement shall confer upon the Buyer any right of ownership in EGIL’s Marks, and (d) the
Buyer shall not now or in the future contest the validity of EGIL’s Marks or take any action impairing the rights of EGIL in its Marks.
(m) In case of unauthorised use of the Database or the Service by the Buyer or a User, EGIL reserves the right to deny access to the Service to the Buyer or any User by blocking without prior notification the IP address(es) of the Buyer or User used to access the Service.
(n) The Buyer must electronically mark the Data as belonging to EGIL so that it may be easily removed from any system (CRM etc.) should the lease period expire and not be renewed by the Buyer.
(o) The Buyer authorises EGIL to provide any User Data to any third party that EGIL engages to provide any aspect of the Services for the purpose of that third party providing the Services.
(p) The Buyer shall provide EGIL with reasonable assistance in complying with its obligations under applicable data protection and privacy laws insofar as necessary to facilitate EGIL’s compliance with EGIL’s obligations in this Agreement.
(q) The Buyer agrees that from time to time, EGIL may alter the features and functions made available, as part of the Service, but it shall use all reasonable endeavours to ensure that the overall quality, quantity and variety of features and functions remain constant.
(r) The Buyer will keep the password and personal identifier confidential and will immediately notify EGIL if and when it becomes aware of any unauthorised third party using the password or personal identifiers.
(s) Whilst every effort is made to quote the number of records accurately, the quantity may vary from time to time, as is reasonable, due to movements within the Data and no warranty or condition is given that the figure quoted agrees with that finally reached during the execution of the order
(t) EGIL may temporarily suspend the Service for the purpose of repair, maintenance or improvement of any of EGIL’s facilities which are necessary to provide the Service, or vary the technical specification of the Service for operational reasons subject to EGIL giving the Buyer as much on-line, written or oral notice as is reasonably practicable in the circumstances, and restoring the Service as soon as reasonably practicable after such temporary suspension.
(u) EGIL reserves the right to monitor the use of the Service by the Buyer.
(v) The Buyer acknowledges that it has no right to any physical access to the premises from which the Service is provided or any other EGIL premises.
(8) TERMINATION OF AGREEMENT
(a) At the expiry of the Initial Term, (unless stated, midnight one year from commencement date) this Agreement will automatically renew for additional terms of 12 months each unless either party gives at least 30 days’ written notice to the other party to terminate with effect from the end of the Initial Term or any additional term.
(b) On the termination or expiry of this Agreement the Buyer’s and its Users’ rights to receive the Service shall immediately cease and the Buyer shall notify its Users that they are no longer entitled to access or use the Service. Buyers are reminded that ownership of the data set remains with EGIL at all times and does not transfer to the buyer at the end of the period. The Buyer shall delete all copies of contents of the Database and return or destroy (as instructed by EGIL) all files, materials and documents supplied by EGIL before and during the Term unless the contact made has become a client of the Buyer. Use of any data after the termination date will be considered an ‘unauthorised breach’ and incur a penalty charge. Buyers should ensure that data is adequately marked up in such a way as to allow its easy removal in a timely fashion.
(c) All data supplied by EGIL will contain a reasonable quantity of seed names, which will be monitored to detect unauthorised usage at all times throughout and after the term of the license. EGIL considers the unauthorised usage of its data very seriously. Unauthorised usage includes, but is not limited to disclosure, transfer, resale, re-use, data capture or copying and modification in part or in whole. If unauthorised usage is detected and confirmed upon investigation, the Buyer will be liable for a penalty charge at the prevailing market rate, payable immediately and must expunge from any storage facility owned by, or under the control of the Buyer any data contained in or derived from EGIL’s database. Where it is proven beyond reasonable doubt that the Purchaser, Buyer or their Nominated Third Party has supplied or resold EGIL’s information to a third party, EGIL reserve the right to seek legal action to re-coup damages, full legal costs and punitive damages.
(9) TERMS AND CONDITIONS RELATING TO SOLUS EMAIL SERVICES
(1) is solely responsible for the content of any marketing sent. The Buyer ensures that no Input Material is defamatory, obscene, indecent or otherwise illegal or unlawful and ensures that any Input Material does not infringe any copyright owned by any third party. The Buyer agrees to indemnify EGIL against any loss, claims, damages, costs and expenses howsoever arising in connection with any Input Material;
(2) shall supply, at its own expense, EGIL with all necessary Input Material within sufficient time (to be no later than 24 hours prior to the scheduled campaign) to enable EGIL to provide the Services in accordance with the Contract and shall ensure the accuracy of all Input Material acknowledging that EGIL may not have the time nor the expertise to check the accuracy of any input material on behalf of the Buyer;
(3) if all necessary Input Material is not received from the Buyer by EGIL within sufficient time (to be no later than 24 hours prior to the scheduled campaign) then EGIL reserves the right not to provide the Services in accordance with the Contract. Wherever possible EGIL will endeavour to reschedule the Services but does not guarantee to do so and if it is not possible EGIL will consider the Services as delivered.
(4) at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage; EGIL shall have no liability for any such loss howsoever caused;
(5) if appropriate will ensure that it complies in all respects with The British Code of Advertising Practice, the British Code of Sales Promotion and Practice and the Advertising Association Code of Practice covering the use of business data for advertising and direct marketing purposes, and all other appropriate codes of conduct;
(1) EGIL carry out marketing campaigns by email for many Buyers by sending large numbers of emails simultaneously to businesses in the UK. EGIL’s ability to do this is governed by technology both within and outside its control. EGIL endeavours to send out campaigns at the times agreed to with Buyers, however, when entering the Contract, the Buyer realises that it may not be carried out exactly within that time frame. If the campaign is carried out reasonably closely to the agreed times but not exactly within, the Buyer may not dispute the invoice based on this.
(2) For email campaigns, we guarantee to send to the numbers quoted but we do not guarantee delivery of every single mail (delivery meaning the storage of the email in the recipient's email Buyer, HTML-based or not). This is not due to the quality of data used, simply the filtering systems at the recipients' machines.
(3) EGIL sends out many marketing emails a day and naturally very rarely, human errors can occur. EGIL endeavours to deliver to the areas of the UK and Europe, to the particular establishments, and to the recipients stipulated by the Buyer but has no liability for any loss of trade or profit to the Buyer as a result of delay in delivery or the delivery of a campaign to an incorrect area, establishment or recipient.
(4) If the Buyer does not specify an email subject line within 48 hours of the scheduled delivery time then the subject line will be created by EGIL without notice at their full discretion. A proof of the email will be sent for approval to the Buyer and confirmation of approval should be sent to EGIL within 24 hours of receipt.
(5) EGIL reserve the right in their absolute discretion to refuse to send an email campaign without liability for losses incurred by the Buyer.
(6) EGIL can offer a tracking and delivery confirmation service on all its email campaigns. EGIL has no control over any email once it has been sent from its servers and cannot guarantee that a campaign will specifically generate sales/interest in the Buyer's product/service.
(7) Where the Buyer wishes to suppress certain establishments from the send list, a list of the establishment name, Postcode and email address must be provided to EGIL 48 hours prior to the delivery time.
(8) EGIL will remain the Data Controller during the period of the agreement.