1.1 The following definitions shall have the following meanings in this Agreement:
Affiliates: in respect of any person to whom the term Affiliate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
Contact Details: data and information by which individuals may be personally identified, including without limitation, name, job title, organisation name, organisation postal address, telephone number and email address.
Copyright: all copyright and rights in the nature of copyright subsisting in the Products in any part of the world to which Infopro is, or may become, entitled.
Good Professional Practice the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from time to time from a skilled and experienced contractor engaged in the same type of undertaking and in the same or similar circumstances and conditions as those envisaged by this Agreement
Infopro: the party entering into this Agreement with the Customer as specified as signatory in the Order Form.
Leads: Contact Details of those individuals who have registered on Infopro’s proprietary websites to receive and/or otherwise access the Product;
Order: the order form signed by the parties setting out certain agreed particulars in respect of the delivery of the Services pursuant to this Agreement.
Product: any work produced by Infopro pursuant to the provision of the Services.
Services: those services whose details are set out in the Order.
Start Date: as set out in the Order.
1.2 Capitalised terms not defined above shall bear the meanings ascribed to them in the Order.
2. FORM AND DELIVERY OF THE WORK AND GENERATION OF LEADS
2.1 Infopro agrees to deliver the Services to the Customer in accordance with Good Professional Practice.
2.2 Delivery of the Services shall be in accordance with such timescales as have been agreed by the parties from time to time.
2.3 Infopro shall obtain all and any necessary approvals, permissions and consents required to use any content appearing or otherwise incorporated in the Products.
2.4 Infopro shall provide the Customer the Leads arising from its transmission of the Customer’s Content during the Term in accordance with the Customer’s reasonable requirements from time to time;
2.5 Risk in the storage media embodying the Leads shall remain with the Customer throughout the Term. If any part of the media shall be lost, destroyed or damaged the Customer shall at the request of Infopro replace the same forthwith (embodying the relevant part of the Leads).
3.1 The Customer shall pay all fees due in respect of the provision of the Services to Infopro (or its designee) in accordance with the terms of the Order and any applicable invoice.
3.2 All sums due to Infopro under this Agreement are exclusive of VAT.
3.3 The provisions of this clause 3 shall remain in effect notwithstanding termination or expiry of this Agreement until the settlement of all subsisting claims by Infopro.
4. LICENCE AND RESERVATION OF RIGHTS IN THE SERVICES
4.1 Infopro retains all Copyright and other intellectual property rights in the Products, Services and Leads throughout the world and hereby grants to the Customer the non-exclusive right to copy and reproduce the Product in whole, partial or adapted form, for its own business purposes.
4.2 The Customer shall procure that its employees or agents and those of its Affiliates do not:
(a) Attempt to duplicate or modify any portion of the Products except as expressly permitted in this Agreement; or
(b) Alter any part of the Products.
4.3 the Customer shall defend, indemnify and hold Infopro harmless against claims, actions, proceedings, losses, damages, expenses and all costs directly arising out of or in connection with the Customer’s breach of this Agreement, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Infopro provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
4.4 the Customer acknowledges that it retains responsibility for configuring its information technology, computer programs and platform in order to access any part of the Products provided by computer networks and for the deployment of anti- virus software.
5.1 Infopro warrants that:
(a) as far as it is aware, the exploitation of the rights granted by this Agreement has not infringed, and will not infringe, the rights of any third party; and
(b) the Products will contain nothing that is defamatory or obscene, or unlawful in any other way.
5.2 Infopro warrants that the Leads shall be free from all known viruses to the extent that any such viruses are reasonably capable of prior detection, and that they have been prepared with reasonable care and skill.
5.3 Infopro represents and warrants that each of the relevant individuals whose personal details are comprised within the Leads has provided his or her consent pursuant to the Data Protection Act 1998 permitting the use thereof as contemplated in this Agreement.
5.4 The Customer shall provide all assistance and materials Infopro reasonably requires on a timely basis in connection with its delivery of the Services.
5.5 Except as expressly and specifically provided in this agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
6. ASSIGNMENT AND OTHER DEALINGS
6.1 The Customer shall not assign any of its rights or obligations under this Agreement or subject any of its rights or obligations under this Agreement to any mortgage, charge, pledge, lien, option or anything equivalent.
6.2 The Customer shall not copy or otherwise redistribute the Leads. The Customer shall indemnify and keep indemnified Infopro against all claims, costs, loss, damages and expenses arising from any breach of the foregoing restriction.
6.3 Infopro shall not assign any of its rights or obligations under this Agreement or subject any of its rights or obligations under this Agreement to any mortgage, charge, pledge, lien, option or anything equivalent.
7.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) Is or becomes publicly known other than through any act or omission of the receiving party; or
(b) Was in the other party’s lawful possession before the disclosure; or
(c) Is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) Is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7.2 Each party shall hold the other’s Confidential Information in strict confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
7.3 Each party shall use its best endeavours to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed except in accordance with the terms of this Agreement.
7.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
7.5 This clause shall survive termination of this Agreement, however arising.
7.6 Infopro shall not publicize in any manner information regarding the existence of this Agreement or its terms, including, without limitation, the Customer’s identity, without the prior written consent of the Customer, provided, however, that Infopro shall not be prohibited from making disclosures to the extent required by law, provided further, that, Infopro shall immediately notify the Customer of such requirement, prior to any disclosure.
8.1 This clause sets out Infopro’s entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) Any breach of this Agreement;
(b) Any use made by the Customer of the Products or Services or any part thereof; and
(c) Any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this Agreement.
8.2 Nothing in this Agreement excludes Infopro’s liability:
(a) For death or personal injury caused by its negligence; or
(b) For fraud or fraudulent misrepresentation.
8.3 Subject to clause 8.2 above:
(a) Infopro shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising; and
(b) Infopro’s total aggregate 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 this Agreement shall be limited to the fees due pursuant to clause 3.1 above.
8.4 Under this clause 8, Infopro’s liability includes that of any Affiliate and its and their respective agents, employees and sub-contractors.
8.5 Infopro shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations or from carrying on business by acts, events, omissions or accidents beyond its reasonable control, including without limitation default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications 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 or storm.
9.1 Either party may terminate this Agreement with immediate effect by giving written notice if:
(a) the other commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so; or
(b) the other party becomes Insolvent within the meaning of section 123 of the Insolvency Act 1986.
9.2 On termination of this Agreement for any reason:
(a) All licences granted under this Agreement shall immediately terminate;
(b) Termination shall not affect or prejudice the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination.
10.1 Infopro may at any time set off any liability it owes to the Customer against any liability of the Customer to Infopro, whether any such liability is present or future, liquidated or unliquidated, under this Agreement or not. Any exercise by Infopro of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this Agreement or otherwise.
10.2 Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this Agreement.
10.3 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.4 This Agreement constitutes the entire Agreement between the parties and supersedes all previous Agreements between the parties relating to its subject matter. Each of the parties acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
10.5 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
10.7 No person other than a party to this Agreement shall have any rights to enforce any term of this Agreement.
10.8 This Agreement may not be assigned, transferred, sub-licensed, or charged by either party without the prior written consent of the other save in respect of its Affiliates.
10.9 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
10.10 This Agreement comprises the Order and the terms and conditions set out herein. In the event of any conflict, the Order shall prevail.
10.11 This Agreement may be executed by electronic signature. Each of the parties waives any and all rights to dispute the validity, legality or enforceability of such method of execution as evidence of the existence of legal relations pursuant to the Agreement for the purposes of proceedings issued in respect of any of its terms.