1. INTERPRETATION
1.1 In these Terms and Conditions and the Acceptance of Order or Insertion Order save where the context requires otherwise requires, the words and phrases below shall have
the following meaning:-
"MARKETING Media Owner trading as MARKETING SOURCE LTD
SOURCE LTD"
"the purchaser" person, firm or company placing an order with MARKETING SOURCE LTD, excluding any parent, subsidiary or other affiliated company.
"Acceptance Of Order” MARKETING SOURCE LTD list rental acceptance of order form signed
and accepted by the purchaser setting out without limitation the details of the data to be supplied by MARKETING SOURCE LTD and the fees payable by the purchaser.
"the Survey" any Survey compiled and executed by, or in conjunction with MARKETING SOURCE LTD which contains interalia. Product Questions and Core Questions, and which has been conducted by telephone, printed questionnaire, over the internet, or by other media.
“MS database” a database of names, addresses, emails and telephone numbers of individuals, the associated data of which is derived or imputed.
" the Product the Questions from a Survey relating to a specific product
Questions" category or sub category
"the Core Questions" the contact details and lifestyle questions formulated by MARKETING SOURCE LTD and included in a Survey.
"the Data" one copy of any data provided by MARKETING SOURCE LTD as ordered by the client and set out in the Acceptance Of Order, either from responses to the Product Questions or the Core Questions or derived or imputed data from a database, or that is collated or maintained by MARKETING SOURCE LTD or on its behalf, provided to the Purchaser either in paper, printed or other documentary form or on Magnetic tape or in other electronic format (or additionally, alternatively stored on MARKETING SOURCE LTD's computer or that of its bureau at an additional rate to be agreed). MARKETING SOURCE LTD reserves the right to provide to the Purchaser all data sourced from the survey, that is generated from the Product Questions, unless a maximum quantity is specified on the Acceptance Of Order.
"the Fee" The fee payable by the Purchaser to MARKETING SOURCE LTD for the service and license to be provided by MARKETING SOURCE LTD hereunder and calculated in accordance with
clause 4 below a summary of which is set out in the section headed "Payment terms" in the Acceptance Of Order.
"the license" The license granted under clause 3 below and set out in the section headed “license period” of the Acceptance Of Order, by MARKETING SOURCE LTD to the Purchaser to use the data.
"the Execution date" The date on which collection for gathering sponsor data from a Survey will commence.
"Estimated Quantity" The estimate by MARKETING SOURCE LTD of the number of responses to product questions.
"the Instalment" The provision of each of a series of deliveries of data and the accompanying License.
"Names" The name of each person who either has completed a Survey or the name of each person identified on a completed Survey as a spouse/partner of the person who took part in a Survey or exists on a database or a person’s data collated in some way by MARKETING SOURCE LTD.
1.2 The headings to the clauses in these Terms and Conditions are for the ease of reference only and shall not affect the interpretation or construction thereof.
2. TIMETABLE
2.1 MARKETING SOURCE LTD reserves the right to alter the wording of the Purchaser's proposed product Questions and to refuse to include in Survey questions which in the reasonable opinion of MARKETING SOURCE LTD or their legal advisors are or may be illegal or offensive.
2.2 MARKETING SOURCE LTD reserves the right at any time prior to the date of execution of a Survey to cancel an agreement and/or a Survey without incurring any liability other than liability which may not by applicable law be excluded or limited, in which event no part of the Fee shall be payable by the Purchaser.
2.3 In the event that any delivery date shall be agreed between MARKETING SOURCE LTD and the Purchaser, the Purchaser acknowledges that such date shall be indicative only and that MARKETING SOURCE LTD shall not be liable for any loss or damage suffered by the Purchaser as a result of ate delivery of the data.
3. LICENSE
3.1 Subject to clauses 5.2 and 6 below, in consideration of the Fee MARKETING SOURCE LTD hereby grants to the Purchasers the License upon and subject to these terms and conditions.
3.2 The Purchaser shall have the right to use, but not copy, alter, manipulate, adapt or license others to use, Data which is derived from responses to a survey or database or has been collated in some other way, in accordance with the Acceptance Of Order and the license terms, within a maximum of twenty-eight days from date of order unless otherwise authorised by the Group Data Director in the license terms on the Acceptance Of Order. MARKETING SOURCE LTD shall use reasonable endeavours to keep confidential the said part of the Data which is derived for sponsors from responses to their bespoke Product Questions.
3.3. MARKETING SOURCE LTD shall have the right to analyse that part of the Data which is derived from responses to Product Questions and to formulate conclusions from such analysis and extract information from such part of the Data and shall be entitled to use such information (including information comprising such conclusions) at its sole discretion by way of the grant of licenses to third parties or otherwise PROVIDED THAT nothing herein shall permit MARKETING SOURCE LTD to reveal to any third party the replies to any Product questions that related exclusively to the business of the Purchaser.
3.4 The Purchasers right to use any Data, derived from responses to the Core Questions or Product questions or other data supplied by MARKETING SOURCE LTD, shall be non-exclusive and for one-off use only, unless stated otherwise in the ‘License terms’ on the Acceptance Of Order.
3.5 One-off mailing allows the despatch or broadcast of a single mailing piece to each individual supplied as part of the data order. One-off telemarketing allows a single contact to be made with the specified individual on the telephone number supplied as part of the data order, but subject to a maximum of three call attempts being made to reach them: if an individual cannot be reached after three call attempts, (regardless of the call disposition), this number is not permitted to be called again.
3.6 MARKETING SOURCE LTD shall have the right to provide any of the Data supplied to the Purchaser at any time to any third party unless bound by any exclusivity period cited in ’license terms’ on the Acceptance Of Order.
3.7 MARKETING SOURCE LTD will deliver the data to the address specified
on this Acceptance Of Order.
3.8 Where email has been released (in the case of business to consumer data) and in the event of a breach of data license by the purchaser, i.e. where it is determined that data has been used by the purchaser outside of the License terms as specified on the Acceptance Of Order, a re-use charge of 100% of the value of the order will be imposed per occasion of each breach.
4. CALCULATION AND PAYMENT OF THE FEE
4.1 Subject to the minimum payment (if any) to be paid as specified in the Acceptance Of Order the Fee will be calculated by reference to the number of and will be charged per record at the rates set out in the Acceptance Of Order or as a set Fee as specified on the Acceptance Of Order.
4.2 In the event that the Fee shall be a set fee:
a) MARKETING SOURCE LTD shall deliver as the Data such quantity of responses, if available, as shall equal the Estimated Quantity .
b) MARKETING SOURCE LTD shall be entitled to offer to the Purchaser at a prorate rate calculated by reference to the Estimated Quantity and the flat Fee all additional responses.
c) MARKETING SOURCE LTD shall offer to its customers any additional responses which the Purchaser shall decline to accept on such terms as MARKETING SOURCE LTD may determine.
4.3 In the event that MARKETING SOURCE LTD agrees to supply the Data for the purpose of deduplication against other data held by the buyer and on the basis that the Purchaser shall only pay a proportion of the price reflecting the "Net Names" actually used, any claim for credit for the unused portion of the Data:
a) must be made within a period not exceeding three months from the date of delivery, unless otherwise agreed in writing by MARKETING SOURCE LTD; and
b) must be supported by a deduplication report or certificate from a recognised data processing bureau or other independent agency approved by MARKETING SOURCE LTD.
4.4 The Fee is exclusive of any Value Added Tax which may be payable by the Purchaser.
4.5 MARKETING SOURCE LTD reserves the right to charge interest on any sum not paid on a due date for payment at the rate of 5% per month or part thereof from the date due to the date such sum is received by MARKETING SOURCE LTD.
5. COPYRIGHT AND PROPRIETARY RIGHTS
5.1 Copyright and all other intellectual property rights of whatever nature in the Data, the Survey and the Product/Core Questions, including any right to prevent Extraction and/or re-utilise, are and shall remain at all times the property of MARKETING SOURCE LTD, and nothing in these Terms and Conditions shall constitute a transfer, assignment or license of any copyright or intellectual property right of MARKETING SOURCE LTD.
5.2 Subject to sub-clause 3.2 and 3.3 above MARKETING SOURCE LTD reserves the right to grant licenses in respect of the Data to any other party or parties.
5.3 The Purchaser shall notify MARKETING SOURCE LTD immediately if the Purchaser becomes aware of any suspected or actual unauthorised use of the whole or any part of the Data or the Reports by any person.
6. PURCHASER'S OBLIGATIONS
6.1 The Purchaser undertakes to MARKETING SOURCE LTD that it will use the Data solely for the internal business purpose of the Purchaser and for the purpose only of use as a source of reference for its circulation by mail or by telephone or by email if applicable to some or all of the individuals listed in the Data.
6.2 Save for the purpose specified in sub-clause 6.1 the Purchaser shall not without MARKETING SOURCE LTD's prior written consent reproduce, duplicate or copy the Data or any part thereof or information extracted therefrom, nor pass on, transmit or otherwise communicate the Data or any part thereof or any information extracted therefrom to any third party.
6.3 In the event that the Data is contained in electronic format the Purchaser alone will be permitted to extract information therefrom and to print the same in documentary form on condition only that:
6.3.1 Any documents produced as aforesaid and any copies of such documents be retained in the possession of the Purchaser and:
6.3.2 Neither the electronic format nor any information extracted therefrom nor any document on which such information is printed or copies or any part of the aforesaid, shall be passed on, disclosed or otherwise communicated to any third party and
6.3.3 The data held in electronic form is deleted and any copies of it destroyed within 12 weeks from the date of order.
6.4 The Purchaser agrees with and warrants to MARKETING SOURCE LTD that any documents or other items mailed or emailed by or on behalf of the Purchaser as a result of or following its use of Data will at all times comply with the current British Code of Advertising Practice, the British Code of Sales Promotion Practice and will contain nothing which infringes copyright or any other right of any third party or is defamatory, obscene, indecent or otherwise illegal or unlawful whether or not such a claim is justified or upheld. The Purchaser further agrees and warrants that it will upon request by MARKETING SOURCE LTD forthwith supply to MARKETING SOURCE LTD copies of any such documents or other items.
6.5 In the event that any recipient of any documents or other items mailed or emailed by the Purchaser objects to such mailing or emailing or requests that it ceases or asks for his or its name to be removed from any list the Purchaser shall procure that such mailing or emailing ceases forthwith and shall inform MARKETING SOURCE LTD immediately and provide MARKETING SOURCE LTD on a monthly basis with particulars of any documents and other items mailed or emailed to that recipient and of the name and address to which they were sent.
6.6 The Purchaser agrees with and warrants to MARKETING SOURCE LTD that they, or those calling on their behalf, will at all times adhere to telemarketing legislation and best practice as set out in the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Communications Act 2002 and that any telephone scripts will all times comply with ICSTIS rules.
6.7 In the event that any recipient of a phone call made by or on behalf of the purchaser objects to such a call, or requests that such calls from them cease or asks for his or its name to be removed from any list the Purchaser shall procure that such telephoning ceases forthwith and shall inform MARKETING SOURCE LTD immediately.
6.8 The Purchaser hereby undertakes to MARKETING SOURCE LTD that it will deliver to MARKETING SOURCE LTD any notice or other communication in respect of the Data received from the Data Protection Registrar on its receipt thereof
6.9 The Purchaser undertakes to MARKETING SOURCE LTD that it will at all times comply with the provisions of the Data Protection Act 1998 in respect of its use and storage of the data.
6.10 In the event of purchaser’s non-compliance with legislation or codes of practice as set out in these Terms and Conditions, or general bad practice or mishandling of consumers, which adversely affects the name of MARKETING SOURCE LTD or results in additional effort by MARKETING SOURCE LTD staff to handle such outcomes, MARKETING SOURCE LTD reserves the right to subject charges of £1000 per instance.
6.11 The Purchaser hereby undertakes that the instruction to MARKETING SOURCE LTD in respect of the Data Selections and output format are correct in every respect and that should re-output of Data be required as a result of errors or omissions in these output instructions MARKETING SOURCE LTD shall be entitled to charge the Purchaser for such re-output according to its standard charges for Data output, or for full price of the data if it has been mailed or telemarketed as per the stated license terms.
6.12 Output instructions shall be supplied to MARKETING SOURCE LTD by the Purchaser at least 28 days prior to the proposed output date. In the event that instructions are not received by the due date MARKETING SOURCE LTD reserves the right to supply the output according to the specifications contained on the confirmation or order and to charge the Purchaser in respect of any additional costs arising as a result of such late supply.
6.13 The Purchaser agrees to provide accurate and satisfactory reporting of any nett name agreements within the period specified on the Acceptance Of Data Order or other order paperwork. If no period is stated, the standard of sixty-days from the date of signature shall apply. The Purchaser agrees that should they be unable to provide a nett names report within the aforementioned time period, they will be liable to pay the full price for every record output to the Purchaser by Marketing Source within seven days from the expiration of the time period defined.
7. SECURITY AND CONTROL
7.1 The purchaser shall at all times effect and maintain adequate security measures to safeguard the Data from access, copying, manipulation, or use by any unauthorised person.
7.2 The Purchaser shall retain the Data under its own effective control.
7.3 A small percentage of dummy names and addresses may be included in the Data to enable MARKETING SOURCE LTD to monitor usage.
8. LIMITATION OF MARKETING SOURCE LTD’S LIABILITY
8.1 MARKETING SOURCE LTD neither warrants nor undertakes nor represents nor is it a term or condition of any sale or agreement for any supply of the Data that the Data are accurate or complete or that any information contained therein is accurate of complete and (except for any liability for death or personal injury resulting from the negligence of MARKETING SOURCE LTD or that of its servants or agents, or in relation to any other liability which may not by applicable law be excluded or limited) MARKETING SOURCE LTD shall not be liable for any damages, losses, costs, charges or expenses of whatever nature (even if MARKETING SOURCE LTD has been advised of the possibility of such damages) including any indirect or consequential loss or damage howsoever arising and including loss of profits, loss of sales, loss of turnover, loss of bargain, loss of opportunity, damage or corruption to or loss of use of computer equipment, software or data or loss of time on the part of management or other staff, caused by, arising out of or in any way connected with any such inaccuracy or omission.
8.2 Subject to the exception in clause 8.1 above MARKETING SOURCE LTD shall not be liable for any damages, losses, costs, charges or expenses or whatever nature either consequential or otherwise which may arise as a result of the actual quantity of response which constitute the Data being less than the Estimated Quantity.
8.3 Subject to the exception in clause 8.1 above, MARKETING SOURCE LTD shall not be liable for any damages, losses, costs, charges or expenses of whatever nature caused by, arising out of or in any way connected with, or for any failure by, MARKETING SOURCE LTD to perform any obligation hereunder due to causes beyond its reasonable control (including without limitation industrial disputes, fires, acts of God and hostilities) or any other circumstances which MARKETING SOURCE LTD could not reasonably foresee and provide against.
8.4 The Purchaser shall not institute proceedings for damages for breach of these Terms and Conditions after the expiration of one year from the date on which the Purchaser became aware of the same or the date on which it ought reasonably to have become aware of the same.
8.5 Subject to the exception in clause 8.1 above, MARKETING SOURCE LTD shall not be liable to the Purchaser for any indirect or consequential losses or damage (including without limitation loss of profits) in respect of any breach of these Terms and Conditions.
8.5 Without prejudice to the provisions of sun-clause 8.1 to 8.5 hereof any liability of MARKETING SOURCE LTD in respect of any claims of whatever nature arising out of or in any way connected with the Data or their sale, supply or use of or in respect of any breach by MARKETING SOURCE LTD of any obligation or duty pertaining to the Data or to their supply or use (including any other liability of MARKETING SOURCE LTD for negligence or breach of copyright) shall not in any circumstances whatsoever exceed in total the contract price of the Data unless separately agreed in writing by the Purchaser and MARKETING SOURCE LTD, before the Acceptance Of Order is returned.
9. CONFIDENTIALITY
9.1 The Purchaser shall keep confidential all information (whether written or oral) concerning the business of MARKETING SOURCE LTD that it has obtained or received as a result of the performance of the agreement between MARKETING SOURCE LTD and the Purchaser.
10. TERMINATION
10.1 MARKETING SOURCE LTD may terminate this agreement and License
forthwith on giving written notice to the Purchaser if:
10.1.1 The Purchaser commits a serious breach of these Terms and Conditions and (in the case of a breach capable of being remedied) shall have failed to remedy the breach within 14 days after the receipt of a request in writing from MARKETING SOURCE LTD to do so or:
10.1.2 The Purchaser fails to comply with a statutory demand or goes into liquidation (other than for the purpose of reconstruction or amalgamation) or has a resolution passed for its winding-up or had an administration receiver appointed or has a petition presented to the court for an administrative order under Part 11 of the Insolvency Act 1986 or has a voluntary arrangement approved under Part 1 of the Insolvency Act 1986.
10.2 Cancellation by MARKETING SOURCE LTD under clause 2.2 above
occurs.
10.3 Upon termination of this agreement and License the Purchaser shall forthwith return the Data to MARKETING SOURCE LTD.
10.4 Termination of this agreement and License between MARKETING SOURCE LTD and the Purchaser for whatever reason shall not affect the accrued rights or liabilities of either party.
11. ASSIGNMENT
11.1 The Purchaser shall not be entitled to assign, sublicense or otherwise transfer this License or the benefit or burden of this agreement and this License shall be personal to the Purchaser only MARKETING SOURCE LTD reserves the right to assign the benefit or burden of this agreement with the Purchaser.
12. ENTIRE AGREEMENT
12.1 These Terms and Conditions supersede all prior agreements, arrangements and undertakings between the parties and together with the Acceptance Of Order constitutes the entire agreement between the parties relating to its subject matter. No addition to or modification of any provision of these Terms and Conditions shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of each of the parties.
13. WAIVER
13.1 The failure by MARKETING SOURCE LTD to exercise a right or remedy hereunder shall in no manner affect MARKETING SOURCE LTD's ability to exercise its right or remedy at a later time. No waiver by MARKETING SOURCE LTD of the breach of any provision hereof whether by conduct or otherwise on any one or more instances shall be deemed to be further or continuing waiver of such provision.
14. NOTICE
14.1 All notices which are required to be give hereunder shall be in writing and shall be sent to the address of the recipient set out in the Acceptance Of Order or such other address as the provisions of this clause. Any such notice may be
delivered by hand or by first class pre-paid letter, telex or facsimile and shall be deemed to have been served of by hand when delivered if by first class post 48 hours after posting and if by telex or facsimile when dispatched.
15. PROPER LAW AND JURISDICTION
15.1 These Terms and Conditions shall be governed by and constructed in accordance with the Laws of England. Any dispute which may arise between the parties concerning these Terms and Conditions shall be determined by the
English Courts and the parties hereby submit themselves to the jurisdiction of those courts for such purposes.
16. CANCELLATIONS
16.1 MARKETING SOURCE LTD reserves the right to refuse cancellation of this order, or any order by the Purchaser which form part of a series.
16.2 Each execution within a series will be treated as a separate order for execution in respect of cancellation.
16.3 Requests for cancellation of any order for execution must be made in writing stating all reasons for cancellation, these must be addressed to the Managing Director or the Group Data Director and in the case of sponsorship, must be received by MARKETING SOURCE LTD at least 1 month prior to the execution date or copy date of a survey, which ever is the earlier.
16.4 The Cost per Record as contained on the Acceptance Of Order, shall apply if the Purchaser cancels part of a Series of outputs, and shall apply to all Data supplied under this order for Execution, irrespective of the date of supply of the Data.
