Terms and Conditions
Terms and Conditions of Business for Intelligent Data Services Limited
1 Definitions
In these terms and conditions (the “Terms”) words and phrases shall bear the following meanings:
“Agreement” means this contract comprising the Order and these Terms;
“Charges” means the purchase price, Lease, or Rental payments in terms of the Order or in terms of Clause 2.1 where appropriate;
"Company" means Intelligent Data Services Limited, Company No. SC290233, whose registered office is at 146 West Regent Street, Glasgow, G2 2RZ;
”Customer" means the person firm or corporation who or which offers to acquire by Rental, Lease or Purchase any one or more of the Databases from the Company in accordance with these Terms;
"Database(s)” means each and/or all of the compiled listings of data including a combination of names, addresses, telephone numbers, email addresses and/or other information to be supplied by the Company by way of Rental, Lease or Purchase pursuant to the Agreement;
“Hard Bounces” means an indication that an email address is invalid;
“Soft Bounces” means an indication that an email has been rejected because there is a fault in the recipient’s system.
"Intellectual Property Rights" means the Company's database right under the Regulations and all other proprietary rights in the Databases whether at common law, under the Copyright, Designs and Patents Act 1988, or otherwise;
“Order” means an accepted order form or specification for the supply of Databases;
“Website” means www.intelligentds.co.uk and/or www.intelldata.co.uk and/or such other websites operated by the Company from time to time;
“Working Day” means any day except Saturday and Sunday and bank or other public holidays in the UK;
"Rental" means hire from the Company of a Database to be used in a single mailing, telemarketing or email only (and the Company reserves the right to include within the Database concerned seed addresses and other data to secure compliance with this restriction);
"Lease" means hire from the Company of a Database to be used within a restricted 12 month period for telephone and mail or email marketing only (and the Company reserves the right to include within the Database concerned seed addresses and other data to secure compliance with this restriction);
"Purchase" means purchase from the Company of a Database to be used for telephone and mail marketing only;
"Regulations" means the Copyright and Rights in Databases Regulations 1997; and
2 Supply of Database
2.1 The Company agrees to supply each or all of the Databases to the Customer for Rental, Lease or Purchase at the price quoted in the Order, and where no price is specified, at prices specified by the Company from time to time and for the time being on the Company's website.
2.2 If any amendments are made by the Customer as to their requirements then the Price may be increased accordingly.
3 Faxed Orders
The following Terms apply to orders sent by facsimile:-
3.1 no order placed by the Customer for Rental, Lease or Purchase shall be deemed to be accepted unless the Customer has returned an order form supplied by the Company signed by a duly authorised representative of the Customer to the Company on the facsimile number provided on the order form. The order shall be deemed to be delivered if the Customer has a successful facsimile transmission report, or if the company receives a duly signed order form;
3.2 the Customer must ensure the terms of the order form supplied by the Company and any applicable specification are accurate. The Company accepts no responsibility for any errors, omissions or other defects in the order form or specification signed by the Customer;
3.3 no order can be cancelled once the Company has dispatched the Database(s) to the Customer. If the Customer wishes to cancel the order after it has sent the signed order form to the Company it must send written notice of cancellation to the Company before the Database(s) has been dispatched to the Customer and the Customer must pay 75% of the full value of the order (including VAT) to the Company within 7 days after cancellation. Notice of cancellation may only be sent by post or facsimile.
4 Payment
4.1 In consideration of the supply of the Databases, the Customer shall pay the Charges to the Company.
4.2 In the event that the Company provides goods or carries out any services not agreed in advance, these will be charged at the Company’s standard rates in force from time to time or such other rates as may be notified by the Company.
4.3 All payments representing the Charges are exclusive of Value Added Tax and governmental or other charges, which shall be added to such payments if applicable and shall be included and itemised separately on invoices, where appropriate.
4.4 Payment of all Charges shall be payable within 7 days of the date of invoice or on the dates set out in the Order. Time of payment shall be a material condition of the Agreement and unless otherwise agreed in writing between the Company and the Customer, interest at the rate of four per cent per annum above the base rate for the time being of the Bank of Scotland will be payable by the Customer on all sums remaining unpaid after the due date for payment as provided for in this Agreement.
5 Replacement Data
5.1 If data has been supplied from the Company’s own in-house database and not from a third party or brokered database bought in especially for the Customer, then subject to Clause 5.2, the Company will provide replacement data under the following circumstances:-
5.1.1 Where more than 3% of postal addresses in the IDS mailing and telemarketing business database only can be shown to be inaccurate. IDS email database is dealt with below;
5.1.2 Where more that 3% of telephone numbers in the IDS mailing and telemarketing business database only can be shown to be inaccurate. IDS email database is dealt with below; or
5.1.3 more than 10% of the email addresses within the IDS email Database are deemed to be Hard Bounces - No guarantees will be offered with accompanying company address details, company telephone numbers or contact names which is supplied as part of the email database.
5.1.4 Where more than a 10% of the mailing database can be shown to be inaccurate or where the more than 10% of telephone numbers can be illustrated as not contactable when this data has been purchased or brokered from a third party on behalf of the customer, replacement data can be sought. However replacement data will be at the discretion of the third party supplier for which the company cannot be held accountable for if no replacement data is made available.
5.1.5 Where consumer data has been purchased or brokered from a third party on behalf of the customer, replacement data can only be sought, when more than a 10% of the mailing database can be shown to be inaccurate or where over 10% of the telephone numbers can be illustrated as non contactable. However replacement data will be at the discretion of the third party supplier for which the company cannot be held accountable for if no replacement data is made available.
5.2 To make a claim for replacement data the Customer must:-
5.2.1 demonstrate that they have tried to contact a minimum of 20% or 500 (whichever the greater) of the recipients in the Database in question within a period of 30 days from delivery of the Database; and
5.2.2 provide a full report detailing the accuracy or inaccuracy of each individual record in the Database and in relation to email addresses, identify whether any bounces were Hard Bounces or Soft Bounces in report format from a verified email broadcasting tool.
5.3 On receipt of the reports in terms of Clause 5.2.2, the Company shall have 10 working days to investigate any inaccuracies and if they are satisfied that they are above the levels set out in Clause 5.1 then replacement data for the number of records above the guarantees detailed in section 5.1.1 to 5.1.3 will be supplied as soon as reasonably practicable.
6 Limitation Of Liability
6.1 Nothing in this Agreement shall exclude or in any way limit the Company’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this but including any liability arising under any indemnity under this Agreement:
6.1.1 the Company’s maximum aggregate liability under or in connection with this Agreement, whether in contract, delict or tort (including negligence) or otherwise, will in no circumstances exceed the Charges; and
6.1.2 the Company will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by delict or tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
6.2 These Terms state the full extent of the Company’s obligations and liabilities in respect of the performance under the Agreement. The parties agree that any condition, warranty representation or other term concerning the performance under the Agreement which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.
7 Termination
7.1 Either party may terminate this Agreement forthwith by notice in writing to the other if the other party:
7.1.1 is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within 30 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
7.1.2 (being a company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
7.1.3 (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
7.1.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with or grants a trust deed in favour of its creditors or is sequestrated; or
7.1.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
7.1.6 ceases, or threatens to cease, to carry on business.
8 Force Majeure
The Company shall not be liable for any delay or failure to fulfil it’s obligations under any order which is due wholly or partially to any strike, lock-out or other industrial action, electrical failure, server failure, third party acts or omissions or any other event or act beyond the reasonable control of the Company including without limitation, acts of God, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm.
9 General
9.1 Unless agreed in writing by a Director of the Company no variation of these Terms will be binding and where the Terms conflict with terms stated in any purchase order, confirmation of order, specification or other document, these Terms shall prevail.
9.2 The Company shall be permitted to assign the benefit and/or burden of the Agreement without the prior written consent of the other party. The Customer shall not be permitted to assign the benefit/burden of the Agreement without prior written consent from the Company.
9.3 A person who is not a party to this Agreement shall have no right or entitlement to enforce any term of this Agreement.
9.4 The failure of the Company to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect the Company’s right later to enforce or exercise it.
9.5 The relationship between the parties is as set out in the Agreement and no employment, joint venture, partnership or agency relationship shall be deemed to subsist between the parties and neither shall have the power to bind the other.
9.6 If any provision of these Terms is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Terms and the remainder of such provision shall continue in full force and effect.
9.7 The company reserve the right to treat any use by you the customer of any data, material or derivative work which is outside or exceeds the scope of the permitted license of rental or lease of the data during the licensed period as a binding order by you for an appropriate number of single or multiple uses, which will then be charged at the current rate card rate.
9.8 All data must be taken within 12 months of signed agreement. Any data (or “credits”) not taken within 12 months of signed agreement will be rescinded, and no refund will be due. The company will endeavour to contact the customer regarding this, however ultimate responsibility for this will remain with the customer.
9.9 All email broadcasts whether managed or released to the end client must be used within 12 months of the date of the signed agreement. Any email broadcasts not taken within the12 month’s license period, whether managed or released will be rescinded, and no refund will be due. Any usage out with this will result in the enforcement of section 9.7
9.10 The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by Scots law and the parties submit to the exclusive jurisdiction of the Scottish courts.
