Terms and conditions
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:
- Name, status, country/state of incorporation address and email address of the Subscriber.
- Details of the Services to be taken, including the Price.
- Date of the Services Agreement.
- Date on which the Services are to commence (“The Commencement Date”).
- Location at which the Service is to be utilised.Method by which the Service is to be delivered.
- Initial Term and Duration of the Services Agreement.
- The name and position of person executing on behalf of the Subscriber
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.
“Permitted Internal Use” means the rights granted to Subscriber regarding use of Data as specified in the Service Agreement and in these Terms and Conditions.
“Renewal Date” means the date of the first Anniversary, or such other date as the Parties may designate.
"Subscription" means the annual or quarterly 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.
"Subscription Period" means the Initial Term and any subsequent renewal period.
"Subscriber" means the person to whom EDI is to supply the Services.
"Services" means the EDI products specified in the Services Agreement.
"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 ”).
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:
(a) Not sell or disclose or distribute externally the Data provided by EDI for any monetary or other consideration;
(b) Use reasonable endeavours to comply with any terms attached to any of the Consents set out herein;
(c) Subscriber may authorise individual users to access and use the Data by assigning user IDs and passwords to each such user (an “Identified User”) providing that the Data is not used by more Identified Users than the number of Identified Users specified in the Services Agreement;
(d) Subscriber shall make no attempt to (i) alter, modify, improve, reverse engineer, interfere, disassemble or decompile the Data and/or the hosting of the Services by which the Data is delivered; or (ii) sublicense or transfer any of Subscriber’s rights under this Agreement, except as otherwise provided in this Agreement;
(e) Pay the Charges when due.
4. THE CHARGES
4.1 The Subscriber’s obligation to pay the Subscription shall commence on the Commencement Date.
4.2 At the completion of the Initial Term, and at each subsequent Anniversary Date, the Subscription charges will increase by an amount of six per cent (6%) (“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 are stated net of VAT/sales tax and any withholding tax/tax deducted at source(“TDS”) and 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. If a Subscriber is required by local law to deduct TDS then the TDS will be on the Charges net of VAT/sales tax and the Subscriber must ensure delivery of the appropriate withholding tax certificate at the end of the next calendar quarter. For clients in India the appropriate withholding tax form is Form 16A. Time for payment shall be of the essence.
5. REPRESENTATIVES AND WARRANTIES
5.1 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.
5.2 EDI warrants that it will exercise reasonable skill and care in the provision of the Services.
5.3 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.
5.4 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.
6. LIMITATIONS OF LIABILITY
6.1 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.
6.2 Save for matters in which fraud or wilful default is alleged by a Party:
6.2.1 each Party’s maximum aggregate liability and each Party’s sole remedy in respect of all claims made against the other Party arising out of or in connection with the Services Agreement shall be damages, which shall not exceed the amount paid or payable by the Subscriber by way of the then current annual Subscription in accordance with the terms of the Services Agreement.
6.2.2 Neither Party shall be liable for any special, indirect or consequential loss suffered by the other Party. Neither Party shall be liable to the other Party for any loss of profits, loss of business, loss of data, loss of contracts, loss of savings, loss of use or any other economic loss.
6.3 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.
6.4 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..
7.1 Each Party shall indemnify the other Party and hold them harmless against any third-party claim by any person, 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 the indemnifying party. This indemnity shall be up to a maximum sum equal to the annual value of the contract between the Parties.
8.1 The Parties shall keep the Confidential Information confidential unless:
8.1.1 The Confidential Information was already lawfully known, or became lawfully known to either of the Parties independently;
8.1.2 The Confidential Information is in, or comes into, the public domain other than due to wrongful use or disclosure by EDI or the Subscriber;
8.1.3 Disclosure or use of the Confidential Information is necessary to carry out the Services Agreement, and such disclosure has been agreed in writing by the Parties;
8.1.4 Disclosure is required by law to any government, government department, agency, regulatory or fiscal body or authority and their authorised agents and professional advisers.
8.2 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 shall ensure that employees, agents, and sub-contractors sign a reasonable direct confidentiality undertaking in a form approved by the other Party, acting reasonably.
8.3 The obligations in this clause will continue without limit in time but will not apply in the circumstances described in clauses 8.1.1 and 8.1.4
8.4 Neither Party may make any press announcement or publicise this contract in any way, without the prior written consent of the other Party.
9.1 The Services Agreement shall come into effect on the Commencement Date.
9.2 The Services Agreement shall continue for the Initial Term and thereafter until terminated by either Party. Subject to Clause 15, the Agreement may only be terminated by one Party giving notice in writing to the other (“the Notice”) not less than 90 (ninety) days 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.
10.1 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.
10.2 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
10.3 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:
10.4 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.
10.5 In order for EDI to ensure compliance with the terms of this Agreement, and, in particular, those set out in clause 2.2 above and this clause 10 , 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 Internal 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.
10.6 For the avoidance of doubt, EDI shall not normally require information regarding the Subscriber’s clients.
10.7 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:
10.7.1 The Subscriber reimburses EDI for the full costs of the Audit;
10.7.2 The Subscriber reimburses EDI on an indemnity basis, for all costs and expenses which EDI suffers as a result of the Subscriber’s improper use of the Data including, but not limited to, (i) the costs of the Audit and (ii) an adjustment to The Charges to represent the difference between The Charges as they appear in the Agreement and the Charges EDI would have applied for an Agreement whose terms permit uses other than Permitted Internal use only.
10.8 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.
11. INTELLECTUAL PROPERTY INDEMNIFICATION
11.1 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.
11.2 EDI will indemnify, defend and hold harmless Subscriber against any claim or proceedings brought against Subscriber based on such a Purported IP Claim provided that:
11.2.1 EDI has been notified promptly in writing of such Claim;
11.2.2 EDI is given sole authority and control of the defence or settlement of such Purported IP Claim (“The Legal Action”); and
11.2.3 Subscriber provides all reasonable information and assistance requested by EDI to deal with the defence or settlement of any Legal Action. EDI agrees to pay all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction against Subscriber resulting from any such Legal Action.
12. PUBLIC ANNOUNCEMENTS
12.1 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:
12.1.1 Subscriber’s name will not appear with any greater prominence than the names of the other Subscribers on such lists; and
12.1.2 Subscriber’s name will not be used in any manner that implies a special endorsement of EDI by Subscriber.
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.
14. DATA PROTECTION
14.1 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.
14.2 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.
15.1 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 Clause 3.1(e) and is not remedied within seven days of notice requesting payment by the Subscriber
15.2 The Services Agreement may be terminated by either Party forthwith on notice in writing to the other Party if:
15.2.1 The other Party commits a material breach of any term of the Services Agreement (other than one falling under clause 15.1 above) and (in the case of a remediable breach) fails to remedy the breach within thirty days of a written request by the Party not in breach to do so;
15.2.2 A resolution is passed or an order is made for the winding up of the other Party (other than for the purpose of solvent amalgamation or reconstruction) or the other becomes subject to an administration order or a receiver or administrative receiver is appointed or an encumbrancer takes possession of any of the other property or the other suffers any analogous process under any foreign law.
16. CONSEQUENCES OF TERMINATION
16.1 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.
16.2 Upon the termination of the Services Agreement for whatever reason:
16.2.1 The provision of the Services shall terminate automatically;
16.2.2 The Subscriber shall immediately pay to EDI all outstanding Charges;
16.2.3 EDI shall pay to the Subscriber any amount of Subscription which relates to any period after the termination of the Services Agreement less an amount of Charges outstanding.
17. FORCE MAJEURE
17.1 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:
17.1.1 A flood, storm, or other natural disaster; or
17.1.2 Any war, hostilities, revolution, riot or civil disorder; or
17.1.3 Any destruction, breakdown (permanent or temporary) or malfunction of, or damage to, any premises, plant, equipment or materials (including any computer hardware or software or any records) belonging to EDI; or
17.1.4 The introduction of, or any amendment to, any law or regulation, or any change in its interpretation or application by any authority; or
17.1.5 Any action taken by a governmental or public authority or any agency of the European Economic Community, including any failure to or delay in granting a consent, exemption or clearance; or
17.1.6 Any strike, lockout or other industrial action; or
17.1.7 Any breach of contract or default by, or insolvency of, a third Party, excluding an agent or subcontractor of the Party relying on the relief and a company in the same group as the Party relying on the relief which may be provided by this clause; or
17.1.8 Any failure of a Data Supplier to deliver its contracted data, where such data forms part of the Data, for more than 3 (three) consecutive business days.
17.2 The Party relying on the Force Majeure Event shall:
17.2.1 Give notice in writing of the Force Majeure Event to the other Party as soon as reasonably possible stating the commencement and extent of the Force Majeure Event, the cause thereof and its estimated duration;
17.2.2 Use all reasonable endeavours to mitigate the effects of the Force Majeure Event upon the performance of its obligations under the Services Agreement;
17.2.3 Resume performance of its obligations as soon as reasonably possible after the termination of the Force Majeure Event.
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 which shall not be unreasonably withheld.
19. 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 UK Bank plc.
20.1 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.
20.2 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.
20.3 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.
20.4 The Subscriber shall have no authority to bind EDI in any way.
20.5 This agreement may be executed in one or more counterparts each of which when taken together shall constitute one agreement.
20.6 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.
20.7 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.
20.8 Nothing in this clause 20 shall operate to limit the liability of either Party for fraud.
21.1 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 courier or by electronic mail.
21.2 A notice shall be sent to the address of a Party as set out in the Services Agreement.or emailed to EDI at firstname.lastname@example.org and to Subscriber at INSERT EMAIL ADDRESS. 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.
21.3 A notice posted in one country to an address in the same country 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.
21.4 Clause 21.3 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.
21.5 A notice sent by electronic mail is deemed to have been served on the day of transmission, provided proof of successful transmission is secured
21.6 A Party shall not attempt to prevent or delay the service on it of a notice under the Services Agreement.
21.7 In this Clause:
21.7.1 'Address' includes an email address;
21.7.2 'Notice' includes any demand, consent or other communication;
21.7.3 'Business day' means a day on which banks are open in the city or other location to which the notice is sent.
22. ENTIRE AGREEMENT
22.1 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.
22.2 Nothing in this Clause shall operate to limit the liability of either Party for fraud.
23. LAW AND JURISDICTION
23.1 The Services Agreement is governed by and shall be construed in accordance with the laws of England & Wales.
23.2 The Parties submit to the exclusive jurisdiction of the Courts of England in respect of any disputes, matters or claims which may arise out of or in connection with the Services.
23.3 The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to this Agreement