Terms and Condition
1. These Terms and Conditions set out the terms of the Agreement whereby Imminent Solutions
“We” or “Us” or Fusion Enterprise Limited or “Our” : Fusion Enterprise Limited Limited (Registered in Bangladesh. Registered address :Fusion Enterprise Limited Syl Valley Castle 2nd Floor, VIP Road Telihaor, Syhlet , Syhlet , 3100 Bangladesh. Company registered number C-126787/2015. Data Protection Act 1998 ref Zxxxxx).
“you” or “your” or “licence” : You, the organisation identified in the Company details section of the Order Form.
“undeliverables Threshold” : For the purposes of this Agreement, means 10% of the e-mails addresses in the Data licensed and supplied to the Licensee pursuant to this Agreement.
2. These Terms and Conditions set out the terms of the License
2.2 You expressly agree that :
2.2.1 You shall not use the Data, Materials, Derivative or any part thereof in connection with any use other than the Permitted Use. For the avoidance of doubt, neither Data nor Derivative may be reproduced in, used in or as part of any product or services produced, sold or marketed by you at any time unless expressly permitted in the Order Confirmation Form;
2.2.2You shall not use the Data, Materials, Derivative or any part thereof in connection with any use other than the Permitted Use. For the avoidance of doubt, neither Data nor Derivative may be reproduced in, used in or as part of any product or services produced, sold or marketed by you at any time unless expressly permitted in the Order Confirmation Form;
2.2.3 You shall ensure that neither the Data nor the Materials nor any Derivative nor any part thereof shall be transferred or transmitted outside the United Kingdom and shall not be accessed or used outside the United Kingdom;
2.2.4 You shall not use the Data, the Materials, Derivative or any part thereof in connection with the production of any Database, product or services made available or to be made available by you to your customers, clients or the general public or to compete with any Database products or service of ours or our data suppliers, including in particular (but without limitation) by way of involvement in the production of publication of any directory (local, regional or national) in any format on any media whose content is primarily either classified advertising or "white pages" listings or to provide or enable the provision of a telephone directory enquiry service.
2.2.5 You shall be permitted to allow your employees and individual agency staff or contractors working at your premises to use the Data on your behalf for the Permitted Use only provided that such employees, agents and/ or contractors comply with the terms of this Agreement with regard to the use of the Data. You shall remain liable for all acts and omissions of your agents and contractors as if their acts or omissions were acts or omissions of you. For the avoidance of doubt you shall not be permitted to provide the Data to any other agency, service provider or business to use the Data or allow any of them to use the Data, whether on your behalf or otherwise unless expressly permitted in the Order Confirmation Form.
2.2.6 You acknowledge that certain data may deliberately include "seed" or "dummy" records, which do not relate to a real individual, business or target. Such records are included for the purpose of monitoring use of the data or checking for unauthorised use. You agree not alter or delete or seek to alter or delete such records from any Database, Materials or Derivative. Use of a "seed" or "dummy" record shall be prime facie proof of use of the remainder of the Data. For the avoidance of doubt, you shall remain liable for all acts and omissions of your agents and contractors or clients as if their acts or omissions were acts or omissions of you.
2.3 Fusion Enterprise LimitedLimited reserves the right to treat any use by you of any of the Data, Materials or any Derivative which is outside or exceeds the scope of the Permitted Use, or takes place otherwise than during the Licence Period as a binding order by you for an appropriate number of Single Use or Multiple Use licences as would be required to properly permit such use and in respect of which you shall be obliged to pay us a licence fee which shall be calculated (unless a fee has otherwise been agreed by us in advance of such use) in accordance with our standard rates for such licence at the time of such use. In calculating the type and number of licences required, use properly licensed and paid for will be disregarded and use of any Data, Materials or any Derivative shall be treated as use of all Data. For the avoidance of doubt, you shall remain liable for all acts and omissions of your agents and contractors or clients as if their acts or omissions were acts or omissions of you.
2.4 You, or your client, may not make any copies of the Data or Materials other than one copy of the Data for archiving purposes. You must store the Data separately from other data in a secure environment. You must not permit or allow any other person to copy the Data.
3. These Terms and Conditions set out the terms of the Delivery
3.2 If we agree with you to supply and deliver any Materials, you agree to pay our applicable delivery, packing and insurance charges as notified from time to time in respect of such delivery in addition to the Licence Fee.
3.3. Risk in the Materials during transit shall be yours. In the event that Materials are damaged or lost during transit, we shall make available additional copies of the Materials to purchase at cost price. Any damage or defects to the Materials or Data evident on receipt or shortfalls in delivery must be notified to us within 14 days of the delivery date (or expected delivery date in the case of shortfalls), otherwise Fusion Enterprise Limited shall not be able to consider and shall not be liable in respect of any claims relating thereto
4. These Terms and Conditions set out the terms of the Payment.
4.2.Payment of Choose Leads Ltd invoices is in advance of the delivery of unless expressed otherwise in the Order Confirmation Form in accordance with either a Pro-Forma Invoice or Invoice. The License Fee and any other charges shall, unless otherwise stated in the Order Confirmation Form, be invoiced on receipt and acceptance by us of this Agreement signed by you. Other charges shall be invoiced as they are incurred.
4.3 All sums payable by you under this Agreement are stated exclusive of taxes, including VAT. Such taxes shall be payable by you in addition at the rate and in the manner prescribed by law.
4.4 Any sum payable to Fusion Enterprise Limited shall be paid without regard to any equity, set-off or counterclaims. Without prejudice to its other rights and remedies, Fusion Enterprise Limited Ltd shall be entitled to interest on over due sums at the rate of 5% above the base rate (varying) of Fusion Enterprise Limited's bankers for the time being, accruing daily from the date of issue to the actual date of payment (both dates inclusive), whether before or after judgment.
4.5 Notwithstanding any other provision of this Agreement, time of payment of the Licence Fee and other charges payable by you shall be the essence of this Agreement.
4.6 Without prejudice to its other rights and remedies, Fusion Enterprise Limited shall be entitled, by serving notice of suspension on you, to suspend the licences granted to you hereunder, during any period that any sum under this Agreement is overdue until all such sums have been received by Fusion Enterprise Limited in full. You, or your client, shall not use the Data, Materials or Derivative during any period of suspension. Any use by you, or your client, of the Data, Materials or Derivative during the period of suspension shall be a breach of this Agreement and without prejudice to Fusion Enterprise Limited other rights and remedies, the provisions of clause 2.3 shall apply.
5. These Terms and Conditions set out the terms of the Intellectual Property Rights.
5.2. You acknowledge that elements of the Data and/or Materials may be derived from information or materials owned or supplied to us by a data supplier to us (Data Supplier) and you acknowledge the IP Rights of us and Data Suppliers in and to the Data
5.3 Except for the limited licence expressly granted hereunder, you acknowledge that you will not acquire any IP Rights or other rights in relation to the Data or Materials
5.4 You shall not delete or seek to remove or disguise any marks or notices of Fusion Enterprise Limited or Data Suppliers which may appear to be incorporated on or in the Materials and/or the Data, such marks and notices which you shall ensure appear on any copies you may be permitted to make hereunder.
6. These Terms and Conditions set out the terms of the Confidentiality.
6.2 To the extent you may be permitted by Fusion Enterprise Limited to allow any third party access and/or use of the Data and/or Materials and/or Derivative on your behalf under this Agreement, you shall ensure that you inform such third party and obtain the acknowledgements from such third party in respect of the confidentiality of the Data, Materials and Derivative as are contained in this Agreement, and that you obtain from such third party binding, written undertakings to keep the Data, Materials and Derivative confidential on terms at least as onerous as those set out herein. You shall be liable for any failure of the third party to whom you provide access to the Data, Materials or Derivative to keep the same confidential for any use by any such third party of the same for any purpose other than the Permitted Use or any disclosure of the same by such a third party as if those acts or omissions were acts or omissions of you.
6.3 The provisions of this clause 6 shall not apply to the extent that they may otherwise prevent the disclosure or use of the information or materials which may be the same or similar to the Data and/or Materials to the extent you have obtained such information or materials from a third party not under terms of confidentiality, and/or which is or becomes public knowledge other than through your fault or breach and is or has been extracted or derived by you otherwise than from Data, Databases or Materials of us.
6.4 You agree to notify us promptly of any unauthorised use of the Data, Materials or Derivative or any part thereof of which you become aware or suspect.
7. These Terms and Conditions set out the terms of the Email.
7.1.1If you wish us to exclude certain criteria from our range of criteria you must provide a suppression file to us that clearly states your requested exclusions prior and as part of your order.
7.1.2 If you wish us to exclude general e-mail addresses from the e-mail Data field you must request this prior to and as part of your order
7.2 Fusion Enterprise Limited are not responsible or liable for e-mail addresses that prove to be undeliverable save that where the number of undeliverable addresses exceeds the Undeliverables Threshold and subject to you providing proof of non-delivery within 14 days of the Licence Date, we will endeavour to provide additional e-mail addresses so as to ensure that the percentage of undeliverable e-mails is brought within the Undeliverables Threshold.
7.3 Fusion Enterprise Limitedobligations stated in clause 7.2 above shall not apply where you decide to use a method of delivery that has not been approved in writing by Fusion Enterprise Limited.
7.4 We reserve the right to require you to cease or modify use of our e-mail Data where we discover that the content of e-mails sent by you is in our reasonable opinion inappropriate or you have misled us about the content
7.5 Where you procure the use of the e-mail Data to send e-mails, you must ensure that the recipient is given a simple means to opt-out of receiving further communications and you must forward to Fusion Enterprise Limited Ltd 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.
8. These Terms and Conditions set out the terms of the Data Protection, Compliance and Advertising Standards.
8.2 Nothing in this Agreement relating to the confidentiality or secrecy of the Data shall prevent or hinder either us or you from complying with our legal obligations as to disclosure or otherwise under the Consumer Credit Act 1974 and the Data Protection Act 1998.
8.3 You will ensure that any use to which the Data is put complies with, and in using the Data, you shall comply with all applicable laws, regulations and codes of practice from time to time including, without limitation, the Privacy and Electronic Communications Regulations 2003, those of the Post Office and the Universal Postal Union. You represent, warrant and undertake that:
i)You have undertaken and shall maintain all necessary notifications required for your use of the Data as data controller as required under the Data Protection Act 1998;
ii) You shall carry out all Direct Marketing Campaigns in compliance with, and shall ensure that all materials and scripts relating thereto shall comply with all relevant rules and regulations;
iii) You shall not use the Data in connection with the delivery or communication of any defamatory, malicious or threatening statements or materials or materials, which infringe the IP Rights of any third party.
9. These Terms and Conditions set out the terms of the Warranty and Indemnity.
9.2 Fusion Enterprise Limited does not warrant that the Data shall be fit for any particular purpose
9.3 Except as expressly stated in this Agreement, all conditions, warranties, terms, stipulations and other statements whatsoever (except as to title to goods) that would otherwise be implied or imposed by statute, at common law, by a course of dealing or otherwise howsoever are excluded to the fullest extent permitted by law.
9.4 You undertake to indemnify and keep indemnified Fusion Enterprise Limited with respect to any liabilities, losses, damage or expenses (including reasonable expenses) whatsoever arising or incurred by Fusion Enterprise Limited Ltd as a result of any breach by you of your obligations hereunder or arising out of any use by you of the Data or the Materials (except to the extent arising as a direct result of any breach of our obligations hereunder).
10. These Terms and Conditions set out the terms of the Limitation of Liability.
10.2 Notwithstanding anything contained in this Agreement, except in respect of death or personal injury caused by our negligence, Fusion Enterprise Limited will not be liable for any consequential, economic, or indirect loss or any loss of profits, loss of revenue, loss of contracts or loss of anticipated savings arising in any way in connection with the supply or non-supply of the Data or Materials to you.
10.3 Whilst Fusion Enterprise Limited attempts to ensure that the Data is accurate and complete, by reason of the immense quantity of matter dealt with in providing and compiling the Data and the fact that part of the Data may be supplied by sources not controlled by us, which cannot always be verified, as well as the possibility of negligence or mistake, we do not guarantee the correctness or accuracy of the Data and you agree not to hold us responsible for any error therein or omissions therefrom.
10.4 Without prejudice to clause 10.3 and except as otherwise stated, any query, complaint or claim you may have with regard to the Data or Materials must be notified to us within 14 days of your receipt of the Data or Materials respectively. Any such queries, complaints or claims received more than 14 days after your receipt of the Data or Materials will not be considered by Fusion Enterprise Limited Ltd, and Fusion Enterprise Limited shall not be liable whether in contract, tort (including negligence) or otherwise in respect of any such claims unless you have notified us of the claim within such 14 day period.
10.5 In the event of any valid claim against Fusion Enterprise Limited Ltd with respect to any defects with respect to the Data or Materials, we shall make good such defects or, at our option, refund the pro-rata portion of the Licence Fee paid. This will be our sole liability with respect to defects in the Data or Materials.
10.6 If the data does not match the description set out in the paperwork relating to the specific order ("defective") and the Client tells Fusion Enterprise Limited writing within 14 days of delivery, Fusion Enterprise Limited will at the Client's option (if the Client is "dealing as a consumer" as defined in section 12 of the Unfair Contract Terms Act 1977) or at Fusion Enterprise Limited Ltd's option (in all other cases):
i) Credit the Client for the cost of any defective data when the Client returns it; or
ii) Replace the defective data as soon as practicable after the Client has returned it; or
10.8 Returns from Daily Leads/ Face to Face must be notified to the Company within 14 days of receipt, with any issues relating to the data, we ask for the name and address of consumer, this will then be investigated and proof of the consumers call recordings / opt in etcetera will be sought – If the consumer has not answered positively to the specific question on the order and has been supplied incorrectly Fusion Enterprise Limited will resupply that record.
11. These Terms and Conditions set out the terms of the Cancellation, Termination and Expiry.
11.1a If at any time once the order is paid for, and signed, Fusion Enterprise Limited reserve the right to cancel/refund your order and not supply the company with data/leads, if any Due Diligence carried out by Fusion Enterprise Limited finds the purchaser be fraudulent or misleading in their request to purchase.
11.2 Once accepted by you or us (as applicable), this Agreement may not be cancelled by you and you shall be required to pay the full Licence Fee for the Licence Period for all Data ordered regardless of whether you choose to receive or use the Data.
11.3 We shall be entitled (without affecting any other rights we may have) immediately to suspend or terminate this Agreement if:
i) Your business becomes subject to legal distress or execution; or
ii) You offer to make any arrangements with your creditors or become bankrupt or being a limited company have a receiver, administrative receiver or administrator appointed over the whole or part of the property; or
iii) Any order is made or a resolution is passed or proceedings are taken for your winding up; or
iv) You cease to carry on or threaten to cease to carry on all or a substantial part of your business; or
v) You are the subject of any event or process analogous or preparatory to any of those specified in this clause 11.3 above.
11.4 Promptly following expiry of the Licence Period or earlier termination of this Agreement, you will delete and destroy or, on our prior request, return all copies of the Data, Materials and Derivative within your possession or control or stored on any of your systems or Databases, and will ensure the deletion or destruction of any within the possession, control or on the systems or databases of any third party to whom you may have made the same available.
11.5 Clauses 2.3; 5; 6; 8; 9 and 10 shall continue to apply notwithstanding termination or expiry of the Licence Period or this Agreement.
12. These Terms and Conditions set out the terms of the Right to Audit.
13. These Terms and Conditions set out the terms of the Force Majeure.
14. These Terms and Conditions set out the terms of the Notices.
14.2 The date of service shall be deemed to be the day following the day on which the notice was transmitted, if sent by facsimile, and the third day following the day on which the notice was posted as the case may be.
15. These Terms and Conditions set out the terms of the General.
15.2 No variations or amendments of this Agreement will be valid unless reduced into writing and signed by duly authorised representatives of both parties hereto.
15.3 Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
15.4 Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
15.5 This Agreement is personal to the parties and shall not be assigned or otherwise transferred in whole or in part by either party without the prior written consent of the other party.
15.6 This Agreement constitutes the entire agreement and understanding between the parties in respect of the subject matter of this Agreement and supersedes all previous agreements, understandings and undertakings in such respect.
15.7 This Agreement shall be governed by and construed in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English Courts.
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