Terms and Conditions

1. Agreement

1.1. 1.1. This is an Agreement between the Customer (as detailed in the attached Order Confirmation) and Creditsafe USA, Inc a company incorporated in the State of Delaware (“Creditsafe”). The service purchased by the Customer shall be the service provided by Creditsafe known as ‘SalesJoe’ which is a sales campaign/ management tool with integrated business information to enable a customer to find prospects and record sales information (hereinafter referred to as the “Service”). Customer represents and warrants to Creditsafe that it is using the Service for business purposes.

1.2. This Agreement consists of the Order Confirmation and the Terms and Conditions and constitutes the entire agreement between the Customer and Creditsafe in relation to the Service. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by, or on behalf of, Creditsafe which is not set out in this Agreement.

1.3. The Customer shall ensure that the terms of the Order Confirmation are complete and accurate and by signing the Order Confirmation, or by accessing or using the Service, the Customer accepts the content of this Agreement. Unless otherwise stated in the Terms and Conditions, where the terms of the Order Confirmation conflict with the Terms and Conditions, the Terms and Conditions shall take precedence.

1.4. Any descriptive matter or advertising issued by Creditsafe, and any descriptions or illustrations contained in Creditsafe’s catalogues, brochures or on Creditsafe’s website, are issued or published for the sole purpose of giving an idea of the products and services described in them. They shall not form part of this Agreement or have any contractual force.

In this Agreement:
“Working Day” shall mean any day other than a Saturday, Sunday or public holiday when banks in London are open for business; and
“Normal Business Hours” shall mean 8.30 am to 5.30 pm on a Working Day.

Availability and Maintenance of the Service
1.5. The Customer acknowledges, accepts and agrees that Creditsafe will need to conduct planned or emergency maintenance which may affect the availability of the Service. Creditsafe shall use reasonable endeavours to carry out planned maintenance outside of Normal Business Hours but reserves the right to carry out emergency maintenance at any time provided always Creditsafe shall use reasonable endeavours to restore the Service as soon as reasonably practicable.

1.6. Notwithstanding the foregoing, Creditsafe:

1.6.1. does not warrant that the Customer’s use of the Service will be uninterrupted or error-free; and

1.6.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Creditsafe shall have no liability (on any account whatsoever) to the Customer as a result of or related to such events.

1.7. Developments and Updates to the Service

1.7.1. By entering into this Agreement the Customer hereby agrees that Creditsafe may, from time to time, at its absolute discretion, make and/or apply updates, alterations, modifications and adaptations to the Service or any element of the Service (“Alterations”). Creditsafe will take reasonable steps to inform the Customer of any material Alterations in advance.

1.7.2. The Customer acknowledges that certain Alterations made by Creditsafe may have an impact on the information produced by and/or obtained from the Service. Creditsafe shall have no liability (on any account whatsoever) to the Customer in respect of any Alterations to the Service or any impact on the information produced by and/or obtained from the Service caused by any Alterations.

2. Agreement Period

2.1. This Agreement shall come into force from the date inserted on the Order Confirmation (“the Commencement Date”) and, unless terminated earlier in accordance with its terms or otherwise specified on the Order Confirmation, this Agreement shall continue for a period of 12 months.

2.2. The Customer may be contacted by Creditsafe during the Agreement period regarding new developments and products.

2.3. This Agreement entitles the Customer to access and retain the Service for the purposes detailed in this Agreement and for the duration of the Agreement only. At the end of this period, the ownership of the Service and ensuing rights shall revert to Creditsafe.

3. Charges and Payment

3.1. In consideration of Creditsafe providing the Service, the Customer agrees to pay the sum specified in the Order Confirmation and/or the invoice issued therewith (“the Invoice”) on the times and dates specified therein. For the avoidance of doubt, all payments must be made within 21 days of the invoice date unless otherwise stated in the Order Confirmation or where the parties have agreed that payment shall be made by direct debit, in which case clause 3.8 shall apply.

3.2. Subject to clause 3.8, if the Customer fails to pay the amount specified in the Invoice on the times and dates agreed the full amount will become due and payable with immediate effect.

3.3. In the event that the Service is suspended in accordance with clause 7 for a payment default, then Creditsafe shall be under no obligation to:

3.3.1. re-instate the Service; and/or

3.3.2. recompense the Customer in respect of any period of suspension from the time of payment default to receipt of payment.

3.4. If the Customer fails to pay Creditsafe any sum due pursuant to the Agreement, the Customer shall be liable to pay interest to Creditsafe on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Plc, accruing on a daily basis until payment is made, whether before or after any judgment.

3.5. Creditsafe reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998, where the rate of interest under this Act is higher than the interest which Creditsafe is entitled to charge the Customer under clause 3.4.

3.6. The Customer shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Creditsafe may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Creditsafe to the Customer.

3.7. The Customer agrees to fully indemnify Creditsafe and to hold Creditsafe harmless against all third party costs incurred in the pursuit of payment from the Customer.

3.8. Without prejudice to the generality of the foregoing provisions of this clause 3, where the Customer and Creditsafe agree that the Customer shall pay the amount specified in the Order Confirmation by direct debit then:

3.8.1. Creditsafe will use reasonable endeavours to contact the Customer by telephone to complete the direct debit mandate (which shall for the avoidance of doubt include the Customer providing its bank details and authorisation to any direct debit payments);

3.8.2. where the Customer and Creditsafe are unable to complete the direct debit payment mandate within two Working Days of the date of the Invoice (“the Invoice Date”), payment of the full amount of the sum specified in the Invoice will become due and payable within 21 days of the Invoice Date. In the event that the Customer fails to pay the sum due within the aforementioned 21 days, the full amount will become due with immediate effect and clauses 3.2 to 3.7 of this Agreement shall apply;

3.8.3. where Creditsafe attempts to take a payment by direct debit and the payment fails for whatever reason, or if at any time during the term of this Agreement, the Customer cancels the direct debit payments, payment for the full amount of the sum specified in the Invoice (less any payments already paid by the Customer) will become due and payable immediately and clauses 3.2 to 3.7 of this Agreement shall apply. The Customer accepts that it shall be liable for any bank charges incurred by Creditsafe as a result of a failure of a direct debit attempt.
For the avoidance of doubt the provisions of this clause 3.8 shall only apply to Customers paying by direct debit.

3.9. The Customer hereby acknowledges and agrees that:

3.9.1. Creditsafe may collect payment information relating to the Customer and its payment of Creditsafe’s invoices, which will be used by Creditsafe as part of its products/services; and

3.9.2. any failure by the Customer to pay Creditsafe’s invoices on time may have an impact on the Customer’s own credit rating.

4. Creditsafe’s Proprietary Rights

In this clause 4 the term “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

4.1. The Service is protected by Intellectual Property Rights. All Intellectual Property Rights in or arising out of or in connection with the Service shall be owned by Creditsafe or, where relevant, its third party subcontractors or the third party providers.

4.2. Except as expressly provided herein, this Agreement and access to the Service does not grant the Customer any rights to or in the Intellectual Property Rights of Creditsafe or any third party.

5. Customer Obligations and Conduct

5.1 The Customer shall:

5.1.1. provide Creditsafe with any information or assistance which the parties have agreed the Customer shall provide, or otherwise reasonably requested by Creditsafe, in order for Creditsafe to perform its obligations under this Agreement, and shall use all reasonable endeavors to ensure that any such information provided to Creditsafe is complete, accurate and in the agreed format;

5.1.2. not make use the Creditsafe or ‘SalesJoe’ name, logo or any other trademarks or branding without the express permission of Creditsafe and shall not do anything to harm Creditsafe’s reputation;

5.1.3. abide by all laws and regulations applicable to its use of the Service, including full compliance with all aspects of the Data Protection Act 1998;

5.1.4. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner;

5.1.5. ensure that its network and systems comply with the relevant specifications provided by Creditsafe from time to time;

5.1.6. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Creditsafe’s data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;

5.1.7. not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means;

5.1.8. not adapt, alter, modify or otherwise interfere with any element of the Service, without Creditsafe’s express written permission;

5.1.9. not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service.

5.2. The Service made available to the Customer is a non transferable license and is provided solely for the Customer’s own internal use within the United Kingdom and the Republic of Ireland. The Customer may not:

5.2.1. sell, lease, rent, license, transfer, assign, sublicense, distribute, display, disclose, use for marketing purposes, commercially exploit or otherwise make available to, or use for the benefit of, any third party, all or any part of the Service (including, without limitation, the data or any information obtained from the Service (in any format));

5.2.2. access all or any part of the Service in order to build a product or service which competes with the Service;

5.2.3. use all or any part of the Service to provide any services to third parties or include all of any part of the Service (including, without limitation, the data or any information obtained from the Service (in any format)) in any product or service which the Customer sells; or

5.2.4. attempt to gain, or to assist third parties to gain, unauthorised access to the Service.

5.3. Unless otherwise detailed in the Order Confirmation, the use of the Service provided under the terms of this Agreement is limited to one designated user of the Customer. The designated user will be given a user name and password for a unique user account and the Customer undertakes that it will not allow or suffer any user name and password to be used by more than one individual. The use of the Service, via one user account, by more than one individual, either simultaneously or otherwise will require the provision of additional licenses, which must be agreed with Creditsafe prior to such use.

5.4. The Customer shall ensure that all of its designated users use the Service in accordance with the terms and conditions of this Agreement and shall be responsible for any designated user’s breach of this Agreement. Creditsafe shall have no liability (on any account whatsoever) to any designated users as a result of this Agreement and/or their use of the Service and the Customer agrees to defend, indemnify and hold Creditsafe harmless against any claims, actions, judgements, proceedings, liabilities, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising from any designated user as a result of this Agreement and/or their use of the Service.

5.5. The Customer agrees to be responsible for maintaining the confidentiality of its password and account details and shall ensure that its designated user shall keep their username and password confidential at all times and shall not permit the same to be used by any other person.

5.6. If required, the Customer shall permit Creditsafe to audit the Customer’s use of the Service. Such audit may be conducted no more than once per quarter, at Creditsafe’s expense, and this right shall be exercised with reasonable prior notice, in such a manner so as not to substantially interfere with the Customer’s normal conduct of business.

5.7. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, shall promptly notify Creditsafe of the same.

5.8. The use of any automated system or software to extract or download data from the Service (“Screen Scraping”) is expressly prohibited. If Creditsafe has reasonable grounds to believe that Screen Scraping has taken place, Creditsafe shall be entitled to investigate the Customer’s use of the Service and the Customer shall provide Creditsafe with any assistance requested in order to allow Creditsafe to carry out such an investigation.

5.9. If, as a result of any audit referred to in clause 5.7, any investigation referred to in clause 5.9, or by any other means, Creditsafe identifies that:

5.9.1. any user account has been used by more than one individual; or

5.9.2. any user account has been Screen Scraping,

then without prejudice to Creditsafe’s other rights (including its rights to suspend and/or terminate the Service), Creditsafe shall have the right to promptly disable the relevant user account and to prevent the relevant designated user from accessing to the Service.

6. Warranties and Limitation of Liability

6.1. The Customer acknowledges, accepts and agrees that the Service contains data which is provided by third parties, the accuracy of which it would not be possible for Creditsafe to guarantee. Whilst Creditsafe aims always to maintain a quality service, the Service (and the content of the data comprised therein) are nonetheless provided to the Customer on an “as is”, as available basis. Creditsafe does not warrant that the Service and/or the information obtained by the Customer through the Service will meet the Customer’s requirements and all warranties, representations, conditions and all other terms of any kind whatsoever whether express or implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

6.2. Specifically Creditsafe gives the Customer no warranty or assurance about the contents of the Service. Whilst Creditsafe does endeavour to maintain the accuracy and the quality of the Service, information provided may be incorrect, contain errors or omissions or be out of date. Therefore, any use of, or reliance on, the Service, or any data supplied as part of the Service, is used at the Customer’s own risk. The Customer hereby acknowledges that it assumes sole responsibility for the use of the Service, or any data obtained from the Service, and for the conclusions drawn from the same and Creditsafe shall have no liability or obligation to the Customer whatsoever for any losses or damages incurred or suffered by the Customer as a result of such use or reliance.

6.3. Creditsafe gives the Customer no warranty or assurance as to the volume or number of results generated by any search that the Customer performs as part of the Service.

6.4. Subject to clause 6.6, Creditsafe disclaims all liability in contract, tort (including negligence), for breach of statutory duty, or under any indemnity or otherwise in connection with the Service (including any use made by the Customer of the Service) and shall not be liable for any indirect, or consequential loss relating to the same. Creditsafe shall not be liable for the following types of financial loss; loss of profits, loss of earnings, loss of sales or business or loss of or damage to goodwill, loss of agreements or contracts, loss of use or corruption of software, data or information in addition to the following types of anticipated or incidental losses; loss of anticipated savings, increase in bad debt and failure to reduce bad debt.

6.5. Subject to clauses 6.4 and 6.6, where any matter gives rise to a valid claim against Creditsafe, the total liability of Creditsafe to the Customer in respect of all other losses arising under or in connection with this Agreement whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, or under any indemnity or otherwise in connection with the Service shall be limited to a sum equal to the sum paid by the Customer for the Service supplied under this Agreement in the agreement year in which the claim arises.

6.6. Nothing in this clause 6 or any other provision of this Agreement shall seek to exclude or limit either party’s liability for death, or personal injury caused by its negligence of the negligence of its employees, agents or sub-contractors to the extent it conflicts with applicable law.

6.7. Each party to this Agreement warrants that it has obtained and will continue to hold and maintain all necessary licenses, consents, permits, permissions and agreements required for it to comply with its obligations under this Agreement and for the grant of rights to the other party under this Agreement.

7. Suspension and Termination

Suspension
7.1. If Creditsafe believes that the Customer has breached any provision of this Agreement or in the event of the Customer’s insolvency or bankruptcy or if Creditsafe’s performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by the Customer or any failure by the Customer to perform any relevant obligation (“Customer Default”):

7.1.1. Creditsafe shall without limiting its other rights or remedies have the right to suspend performance of the Service, with immediate effect and without notice, until the Customer remedies the Customer Default, and shall be entitled to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Creditsafe’s performance of any of its obligations;

7.1.2. Creditsafe shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Creditsafe’s failure or delay to perform any of its obligations as set out in this clause 7.1; and

7.1.3. the Customer shall reimburse Creditsafe on written demand for any costs or losses sustained or incurred by Creditsafe arising directly or indirectly from the Customer Default.


Termination
7.2. If Creditsafe believes the Customer has breached any provision of this Agreement or in the event of the Customer’s insolvency or bankruptcy Creditsafe may, with immediate effect by serving a written notice on the Customer, terminate this Agreement.

7.3. Upon expiry or termination of this Agreement:

7.3.1. all rights and licences granted under this Agreement, including the right to access and use the Service, shall immediately terminate;

7.3.2. the Customer shall immediately pay to Creditsafe all of Creditsafe’s outstanding and unpaid invoices;

7.3.3. where this Agreement is terminated pursuant to clause 7.3, and where the Customer has paid Creditsafe in advance for the provision of the relevant Third Party Services, Creditsafe will refund the Customer the element of the fee paid by the Customer for the Third Party Services which have not been supplied by Creditsafe or used by the Customer on a pro-rata basis;

7.3.4. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry;

7.3.5. the Customer must use its best endeavours to delete all and any part of the Service held by the Customer in any format and the Customer may not make any further use of the Service, unless expressly agreed in writing by Creditsafe; and

7.3.6. clauses 3, 4, 5, 6, 7, 11, 12 and 15 shall continue with full force and effect.

8. Indemnity

8.1. The Customer agrees to indemnify, defend and hold Creditsafe (and its parents, subsidiaries, affiliates, officers and employees) harmless from any and all actions, judgements, proceedings, liabilities, losses, cost, expenses, damages, claims or demands (including without limitation court costs and reasonable legal fees), made by any third party or incurred or suffered by Creditsafe (or its parents, subsidiaries, affiliates, officers or employees) arising out of or in connection with the Customer’s breach of this Agreement.

9. Assignment

9.1. Creditsafe may at any time assign, transfer, mortgage, charge, subcontract or deal in any other matter with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent .

9.2. The Customer shall not, without the prior written consent of Creditsafe, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.

10. Force Majeure

10.1. Creditsafe will not be liable to the Customer or to any other party for any delay in performance or failure to perform any of its obligations under this Agreement if such delay or failure is caused by the occurrence of any unforeseen contingency or circumstances beyond the reasonable control of Creditsafe, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of Creditsafe or any other party), failure of a utility service or telecommunications network, internet outages, communications outages, power outages, fire, flood, storm, war, riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, default of suppliers or sub-contractors, or act of God.

10.2. If the Force Majeure Event prevents Creditsafe from providing all or any part of the Service for more than 8 weeks, Creditsafe shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Customer.

11. Confidentiality

11.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 11.2.

11.2. Each party may disclose the other party’s confidential information:

11.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10 as though they were a party to this Agreement; and

11.2.2. as may be required by law, court order or any governmental or regulatory authority.

11.3. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.

12. Retention of data

12.1. As part of the Customer’s use of the Service, the Customer may add or otherwise provide information or data on different businesses and trading entities to its user portfolio/ the SalesJoe application (hereinafter referred to as “the Additional Data”) which Creditsafe may include/ use as part of its products or services that Creditsafe makes available to its customers.

12.2. Subject to clause 12.1, the Customer hereby grants Creditsafe a non-exclusive, non-transferable perpetual licence to include the Additional Data in products and services (including the Service) that Creditsafe will make available to its customers.

12.3. The Customer acknowledges and agrees that it is responsible for obtaining the informed consent (permission) of any Data Subjects whose Personal Data is provided to Creditsafe.

13. Notices

13.1. Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause

13.1, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.

13.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Working Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Working Day after transmission.

14. Data Protection

14.1. If Creditsafe processes any personal data on the Customer behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Creditsafe shall be a data processor and in any such case:

14.1.1. the Customer shall ensure that it is entitled to transfer the relevant personal data to Creditsafe so that Creditsafe may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;

14.1.2. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer under this Agreement as required by all applicable data protection legislation;

14.1.3. Creditsafe shall process the personal data only in accordance with the provisions of this Agreement; and

14.1.4. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

15. Miscellaneous

15.1. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall remain enforceable.

15.2. 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.

15.3. The terms of 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), the provision of the Service and the relationship between the Customer and Creditsafe shall be governed by, and construed in accordance with the laws of England and Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales.

15.4. Any failure of or delay by Creditsafe to exercise or enforce any right, remedy or provision of this Agreement or by law shall not constitute a waiver of such a right or of any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.5. The Service is subject to availability and Creditsafe is unable to guarantee that the Service will be uninterrupted.

15.6. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

15.7. Except as set out in this Agreement, no variation of this Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Creditsafe.

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