These terms and conditions are to be read in conjunction with a Services Agreement which, by its terms, will incorporate these by reference or have them printed on the back or attached to them. The Services Agreement will contain the following:
If it is intended to complete the Services Contract on screen, then the following should be noted: "By completing this forming an electronic format, you are agreeing to be bound by the Terms and Conditions set out on our website".1. DEFINITIONS
1.1. In these Terms and Conditions the following terms shall have the meanings ascribed to the below:
"The Anniversary Date" means the date which is twelve months from the Commencement Date, and twelve months from any subsequent Renewal Date.
"The Charges" means all sums set out in the Service Agreement and payable in accordance with these Terms and Conditions and the Services Agreement.
"Commencement Date" means the date that on which the Services commence, as set out in the Service Agreement, or such other date as may be agreed in writing by the Parties.
"Confidential Information" means the Services Agreement and all other documentary, electronic or oral communications exchanged between the Parties relating to it, including all invoices, and all information relating to the business and affairs of each of the Parties, their customers, clients and suppliers and all other information in whatever form which is of a confidential nature which either Party may obtain by reason of may obtain by reason of its supply or use of the Services provided under the terms of the Services Agreement.
"EDI" means the supplier of the Services.
"Initial Term" means the initial term of the Services Agreement as set out therein.
"The Renewal Date” means the date of the first Anniversary, or such other date as the Parties may designate.
"The Subscription" means the annual, quarterly or monthly subscription fee for the provision of the Services set out in the Services Agreement. For the avoidance of doubt, notwithstanding any arrangement which EDI may enter into regarding the payment by the Subscriber of the Subscription, all EDI Services are supplied on the basis that the minimum Subscription Period is one year.
"The Subscription Period" means the Initial Term and any subsequent renewal period.
"The Subscriber" means the person to whom EDI is to supply the Services.
"The Services" means the EDI products specified in the Services Agreement.
"The Services Agreement" means the agreement between EDI and the Subscriber and which incorporates these Terms and Conditions.
1.2 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time consolidated or re-enacted.
1.3 Reference to clauses are, unless otherwise provided, references to clauses of these Terms and Conditions.
1.4 The headings and sub-headings are inserted for convenience only and do not form part of these Terms and Conditions.
1.5 These Terms and Conditions form part of the Services Agreement. The Subscriber acknowledges and agrees that the Terms and Conditions shall apply to the provision of the Services, unless the context expressly states otherwise, and shall take effect from the Commencement Date.
1.6 In the event of a conflict between any provision of the Services Agreement and a provision of the Terms and Conditions, the Terms and Conditions shall prevail unless the context expressly states otherwise.
1.7 The Subscriber agrees and acknowledges that the provision of these Terms and Conditions is not intended to form the basis of any offer to the Subscriber to provide the Services. The provision of the Services is subject to EDI and the Subscriber entering into a Services Agreement.2. RIGHTS AND OBLIGATIONS OF EDI
2.1 EDI shall provide the Services to the Subscriber upon the terms of the Services Agreement which incorporate these Terms and Conditions.
2.2 EDI hereby grants Subscriber a non-transferable, non-exclusive license to access and use on a subscription basis the EDI data identified in the Services Agreement (the "Data") hosted by EDI in accordance with these Terms and Conditions. Subscriber agrees to use the Data solely for Subscriber’s internal business purposes ("Permitted Internal Use Only”).
2.3 EDI shall use all reasonable care in the compilation of the information which forms any part of the Services.
2.4 EDI reserves to itself complete editorial freedom in the form and content of the Services and, if those alterations do not result in a material change to the Services, EDI may alter the same from time to time with reasonable prior written notice.3. RIGHTS AND OBLIGATIONS OF THE SUBSCRIBER
3.1 The Subscriber shall:
4.1 The Subscriber’s obligation to pay the Subscription shall commence on the Commencement Date.
4.2 At the completion of the Initial Period, and at each at each subsequent Anniversary Date, the Subscription charges will increase by an amount equal to the greater of (a) five per cent (5%) and (b) the Retail Price Index as published in the months immediately preceding the Anniversary Date ("the Annual Increase”).
4.3 Should the Subscription Charges increase by an amount other than the Annual Increase, the Subscriber may terminate this Agreement on the date on which the increase(s) would have become effective "(the Effective Date”), by giving notice of termination to EDI before the Effective Date, whereupon EDI will then refund any part of the subscription which relates to any period after that date already paid for.
4.4 All Charges shall be paid in full in cleared funds without set off, deduction or abatement on any grounds within 30 (thirty) days of the date of the invoice. Time for payment shall be of the essence.5. INVOICES IN US DOLLARS (US$)
The working currency for EDI is UK £, and all of our services are priced in UK £. Should you request the invoice for your subscription to be issued in US$, we will do so on an exceptional basis. However, you should note the following:
5.1. The counter value, expressed in US$, will be fixed at a rate which, in conjunction with advice from our bank, represents the estimated rate which will be applied by our bank for the conversion of the US$ receipt on the date at which the invoice is due for payment.
5.2. At the renewal of the subscription, the renewal price will be fixed by reference to the then prevailing price in UK£, with the US$ counter value computed as in 1, above.6. REPRESENTATIONS AND WARRANTIES
6.1 Although EDI has used its diligent efforts to ensure the accuracy, completeness, timeliness and correct sequencing of the Data, Subscriber agrees that neither EDI nor EDI’s third-Party software, Data or service providers shall have any liability whatsoever for the accuracy, completeness, timeliness or correct sequencing of such Data or information, or for any decision made or action taken by Subscriber in reliance upon such Data.
6.2 EDI warrants that it will exercise reasonable skill and care in the provision of the Services.
6.2 All other implied warranties, conditions and terms, be they implied by statute or law or otherwise are excluded to the fullest extent permitted by law.
6.4 EDI expressly excludes all liability for, and the Subscriber acknowledges that it is solely responsible at all times, the regular backup of the Subscriber’s data in accordance with best industry practice.7. LIMITATIONS OF LIABILITY
7.1 Subscriber acknowledges that EDI has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties.
7.2 Save for matters in which fraud or wilful default is alleged by a Party,
7.3 Any limitation of liability set out in the Services Agreement shall not apply either so as to restrict or limit a Party's liability for death or personal injury caused by its' negligence, or where to do so would be contrary to any applicable law.
7.4 Neither Party shall have any liability to the other Party for claims which are made by a Party more than two years after the date of termination of the Services Agreement.8. INDEMNITY
8.1 Each Party shall indemnify the other Party in full, and shall keep the other Party fully indemnified on a continuing basis against all loss, damage, claims, costs and expenses (including all legal expenses on a full indemnity basis) suffered by a Party arising out of, or in connection with, any breach of the Services Agreement by a Party.
8.2 Each Party shall indemnify the other Party and hold them harmless against any claim by any person, whether or not a party to this Agreement, alleging loss or damage caused to or through that person resulting from corrupt information comprised in the Data where the corruption is attributable to any act or omission of any employee, agent or contractor of a Party. This indemnity shall be up to a maximum sum equal to the annual value of the contract between the Parties.9. CONFIDENTIALITY
9.1 The Parties shall keep the Confidential Information confidential unless:
9.2 EDI and the Subscriber shall ensure that their employees, agents and sub-contractors comply with this clause. If requested by a Party, the other Party the Subscriber shall ensure that employees, agents, and sub-contractors sign a reasonable direct confidentiality undertaking in a form approved by the other Party, acting reasonably.
9.3 The obligations in this clause will continue without limit in time but will not apply in the circumstances described in clauses 9.1.1 and 9.1.4
9.4 Neither Party may make any press announcement or publicise this contract in any way, without the prior written consent of the other Party.10. TERM
10.1 The Services Agreement shall come into effect on the Commencement Date.
10.2 The Services Agreement shall continue for the Initial Period and thereafter until terminated by either Party. Subject only to Clause 16, the Agreement may only be terminated by one Party giving notice in writing to the other ("the Notice”) not less than 3 (three) months prior to the next anniversary of the Commencement Date. The Notice shall become effective and the Agreement deemed to be terminated on the next anniversary of the Commencement Date.11. OWNERSHIP
11.1 EDI and/or its suppliers own all right, title and interest in and to the Data, other software, hardware and other technology used in connection with EDI’s provision of the Services, including all worldwide intellectual property rights therein. The Data is protected by copyright.
11.2 Subscriber agrees not to reproduce, retransmit, disseminate, sell, distribute, publish, broadcast, circulate or commercially exploit such Data and information in any manner without EDI’s express consent, nor to use such Data or information for any unlawful purpose or for any purpose contrary to the terms of this Agreement or the terms of any separate agreement which EDI has made known to the Subscriber.
11.3 Subscribers should be aware that the certain of the Services may contain SEDOL data, and that the use of such Services may require a Subscriber to hold a Licence from the London Stock Exchange. Further details regarding the terms of such licences may be found at the following address: www.londonstockexchange.com/products-and-services/reference-data/sedol-master-file/documentation/documentation.htm
11.4 Nothing herein shall be construed as granting to Subscriber a licence or any other right under any patents, trademark, trade secret, or copyright which EDI may have or obtain relating to the Software or the information, except as expressly provided herein.
11.5 In order for EDI to ensure compliance with the terms of this Agreement, and, in particular, those set out in 11.2, above, EDI may, not more than once per twelve (12) month period and upon at least sixty (60) days advance written notice, and during normal business hours, itself perform, or nominate an appropriate and suitably qualified outside party ("the Auditor") to perform, an audit of the usage of the Data by a Subscriber ("the Audit"). The Audit shall also take place at the Subscriber’s premises which the Subscriber, in consultation with EDI, has deemed to be the most appropriate location for the Audit. The scope of the Audit will be limited to a demonstration of all databases and/or products and/or services ("the Subscriber’s Products") where the Data is utilised by the Subscriber, and a demonstration of the processes by which the incoming Data is managed, including the control of its dissemination within the Subscriber, to determine how the Data is being used ("the Demonstrations”). The sole purpose of the Demonstrations is to prove to the Auditor that there have been no breaches of the Permitted Use Only requirement.
The Audit Report shall include all such documentary evidence on which the Auditor has relied to establish the Audit Findings ("the Findings”), and the Audit Report shall be made available to the Subscriber as soon as it has been accepted by EDI.
11.6 Should the Audit determine that the Subscriber is using the Data in any way which materially contravenes the terms of this Agreement, EDI reserves the right, at its sole discretion, to require that:
11.7 EDI's Audit Rights shall at all times be exercised in accordance with the information industry's best practice standards. In particular, they shall represent the minimum disruption of Subscriber's business operations and shall comply with the Subscriber's security and confidentiality requirements. Any and all information, documents or materials learned or obtained in connection with any such Audit shall be deemed to be Confidential Information.12. INTELLECTUAL PROPERTY INDEMNIFICATION
12.1 Should a Subscriber become aware of any assertion by any third Party that the Data or Services infringes that third Party's copyright, trademark rights or patent (a "Purported IP Claim"), Subscriber shall notify EDI in writing within 14 (fourteen) days of receiving such Purported IP Claim.
12.2 EDI will indemnify, defend and hold harmless Subscriber against any claim or proceedings brought against Subscriber based on such an Purported IP Claim provided that:
13.1 Neither Party shall use the name or marks, or refer to the identity of the other Party, in advertising, publicity, promotional marketing material or correspondence, unless the prior written consent of the other Party has been obtained, provided, however, that EDI may use Subscriber's name in materials containing lists of Subscribers which EDI may publish or use for promotional purposes from time to time so long as:
14.1 Subscriber is responsible for ensuring the confidentiality of its corporate ID and password, and the user IDs and passwords of Identified Users of the Services. In no event will EDI be liable for the foregoing obligations in the event of the failure by Subscriber to fulfil such obligations.15. DATA PROTECTION
15.1 Both Parties acknowledge and agree that they have complied with, and will continue to comply with, all relevant legal requirements relating to the storage transfer provision and use of the Data and personal data.
15.2 The Subscriber warrants that it will secure the consent of all users (including but not limited to Named Users), and other third Parties, where the personal data of such third Parties is processed by EDI on behalf of the Subscriber as required by the provision of the Services. The Subscriber agrees to indemnify EDI in respect of all costs, loss, expenses, damages or injury it may incur as a result of a breach of this warranty.16. TERMINATION
16.1 Without prejudice to any of its rights in this Agreement, EDI may immediately suspend all or any part of the provision of the Services if the Subscriber fails to pay any of the Charges on the due date. Further, EDI may terminate the Services Agreement if the breach which gave rise to the suspension is a breach of Para 3.1(e) and is not remedied within seven days of notice requesting payment by the Subscriber.
16.2 The Services Agreement may be terminated by either Party forthwith on notice in writing to the other Party if:
17.1 Any termination of the Services Agreement for any reason shall not affect the rights or obligations accruing or accrued to either Party and which may have existed prior to its' termination.
17.2 Upon the termination of the Services Agreement for whatever reason:
18.1 Neither Party shall be liable to the other for any abatement of Charges, delay or non-performance of its obligations under the Services Agreement arising from any cause or causes beyond its' reasonable control (a "Force Majeure Event") including, without limitation:
18.2 The Party relying on the Force Majeure Event shall:
A Party to the Services Agreement may only assign or otherwise transfer any of its rights or obligations under that Agreement in whole or in part with the prior written consent of the other.20. STATUTORY INTEREST
If any payment is not made in full by the Subscriber in accordance with this Service Agreement, EDI may charge interest on the outstanding amount from the due date until full payment is made, at the rate of 2% above the base lending rate from time to time of HSBC Bank plc.21. GENERAL
21.1 No forbearance, delay or granting of time by either Party in or before enforcing the Services Agreement shall operate as a waiver of that Party's rights under the Services Agreement nor shall it operate to bar the enforcement or exercise of that Party's rights under the Services Agreement.
21.2 Nothing in the Services Agreement shall constitute or be construed as constituting or establishing any partnership, joint venture or agency relationship between the Parties for any purpose.
21.3 The illegality, invalidity or unenforceability of any terms, conditions or provisions of the Services Agreement shall not affect the legality, validity or enforceability or the remaining terms, conditions or provisions. If any terms, conditions or provisions are found by any competent court, arbitrator or authority to be illegal, invalid or unenforceable the Parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without rendering them illegal, invalid or unenforceable.
21.4 The Subscriber shall have no authority to bind EDI in any way.
21.5 This agreement may be executed in one or more counterparts each of which when taken together shall constitute one agreement.
21.6 Save in respect of the Subscriber's obligations under clause 4 above, time shall not be of the essence for the Services Agreement.
21.7 The rights and remedies of each Party under the Services Agreement are cumulative and shall not operate to exclude any rights or remedies provided by law or otherwise.
21.8 Upon any breach or default of this Agreement by either Party, the non-breaching or defaulting Party shall be entitled to recover, in addition to other relief allowed by law, all costs and expenses of litigation and attorney's fees incurred as a result of such breach or default.
21.9 Nothing in this clause 21 shall operate to limit the liability of either Party for fraud.22. NOTICES
22.1 A notice to a Party served pursuant to the Services Agreement shall be sent by hand or by first class pre-paid post (or airmail if sent internationally) or by fax or by courier. A notice may not be given by email, and any such notice will be deemed to be ineffective.
22.2 A notice shall be sent to the address of a Party as set out in the Services Agreement. However, if the Party has notified the serving Party in writing of another address for the service of notices under the Services Agreement, the notice shall be sent to that address.
22.3 A notice posted in Great Britain to an address in Great Britain is deemed to have been served on the second business day following its' posting. A notice posted in one country to an address in another country is deemed to have been served on the tenth business day following its posting.
22.4 Clause 22.3 does not apply to a notice if there is a national or local suspension, curtailment or disruption of postal services which affects the collection of the notice or is such that the notice cannot be reasonably expected to be delivered within two business days after the next collection.
22.5 Subject to Clause 22.6, a notice sent by fax is deemed to have been served:
22.6 Clause 22.5 does not apply:
22.7 A Party shall not attempt to prevent or delay the service on it of a notice under the Services Agreement.
22.8 In this Clause:
23.1 The Services Agreement, constitutes the entire understanding between the Parties with respect to the subject matter of the Services Agreement and there are no conditions, warranties, terms, representations, collateral contract, promises or other obligations whether written, oral or implied other than those contained expressly in the Services Agreement.
23.2 Nothing in this Clause shall operate to limit the liability of either Party for fraud.24. LAW AND JURISDICTION
24.1 The Services Agreement is governed by and shall be construed in accordance with the laws of England and Wales.
24.2 The Subscriber submits to the exclusive jurisdiction of the Courts of England and Wales in respect of any disputes, matters or claims which may arise out of or in connection with the Services. EDI submits to the non-exclusive jurisdiction of the Courts of England and Wales in respect of any disputes, matters or claims which may arise out of or in connection with the Services.