1.1. ICIS (formerly ICIS Heren) agrees to provide the Customer with the products set out in the order confirmation (Schedule) 1 hereto (the Reports/Data) by electronic mail and FTP (If FTP is part of the subscription in the product detail) subject to the terms and conditions of this Agreement.
1.2. ICIS shall be deemed to have supplied the Customer with the Data unless it receives notice from the Customer in accordance with 5.2 below.
1.3. ICIS reserves the right to vary the Service at any time and shall give the Customer no less than 30 days notice of any such variations.
2. Price and Payment
2.1. The Customer agrees to pay the Subscription Fee stated in the current, or any renewal, Schedule within twenty eight (28) days following the Commencement Date of the initial subscription period for a new subscription, or the Commencement Date of the renewal subscription period for an existing subscription.
2.2. The Subscription Fee is exclusive of VAT and any other applicable sales tax.
2.3. Interest may be charged on any outstanding balance on a daily basis at the rate of 3%above HSBC’s base lending rate in force from time to time from twenty eight (28) days after the date of invoice until payment is made.
3. Copyright and Use Restrictions & user definition
3.1. The copyright and all other proprietary rights in the Data are and remains the property of ICIS and the parties agree that the Customer does not obtain any proprietary rights to or in the Data.
3.2a. The Data may only be distributed to and/or used by the named users identified in The order confirmation.
3.2b if the Data is being used/stored in an internal system within the Customers organisation, the Customer must inform ICIS immediately with a list of everyone who has access to the Data via this system.
By signing this agreement, the Customer acknowledges that any user within the named Company in The order confirmation who has access to or uses the ICIS Data in its raw format must be licensed within this, or any pro-rata agreement during the subscription period.
3.2c Any derived values, calculations or reports created using ICIS Data must be declared to and authorised by ICIS, prior to being implemented or used by the customer.
3.3. If the Customer wishes additional users to have access to the Data it shall notify ICIS prior to such additional user(s) being granted access to the Data and The order confirmation shall be updated.
3.4. The Customer shall immediately notify ICIS of any other changes to the users identified in The order confirmation.
3.5. ICIS may at any time request a list of all users who have access to the Data from the Customer. The Customer shall provide a full and accurate list within 7 days of receiving such a request from ICIS. In the event that the Customer does not provide such information within 7 days, ICIS shall have the right to suspend the Service indefinitely. ICIS shall have no liability for any loss, damage or inconvenience caused to the Customer by such a suspension of the Service. During this suspension, the Customer will not be entitled to any refund of monies paid during this subscription period. The missing Data will be sent to the Customer once all issues surrounding the suspension have been resolved.
3.6. The Parties agree and acknowledge that nothing in clause 3.2 above shall prevent the use and/or copying of the Data by the Customer’s administrative and support staff. Admin and support staff is defined as Data handlers such as IT departments, who do not use the Data for their work.
3.7. Unless otherwise agreed in the order confirmation, the Customer may only use the Data in the course of its normal inhouse activities and the Data may not be sorted, copied, distributed, reproduced, sold, licensed or otherwise dealt with in whole or part without prior written consent of ICIS. Under no circumstances shall the Customer communicate, or permit to be communicated, to any third party, by paper copy, electronic means or otherwise, any part of the Data.
3.8. Notwithstanding the above clauses, the Customer shall be permitted to transmit the Data to the number of terminals, on the Customer’s premises, and/or distribute the number of hard copies of the Data to the users specified in the order confirmation. No further copies shall be taken in any medium without the prior written consent of ICIS.
3.9. Redistribution of the ICIS Reports Data in any format beyond that provided for in the order confirmation is strictly prohibited without the prior written consent of ICIS.
3.10. ‘ICIS’ is a registered trademark of Reed Business Information Limited.
3.11. A “user” is defined as any person who receives access to the ICIS Data in either its raw or derived format, with the exception of administrative users as defined in clause 3.6, at any time during the subscription period
4.1. ICIS may, no more than once in each six month period, request a certificate of compliance from the Customer confirming that the Customer has complied in all material respects with the terms of this Agreement and specifically that the Data has not been distributed or transmitted, in any form, to any persons or entities other than the users set out in The order confirmation.
4.2. The Customer shall keep separate and detailed records of all distributions and transmissions of the Data to enable ICIS to check that the Customer is (and has been) acting in accordance with the terms of this Agreement.
4.3. Without prejudice to the provisions of clause 4.1 above, ICIS or any other person authorised by ICIS shall have the right, after giving written notice of ten clear days, to inspect the Customer’s records during normal business hours. It is agreed and acknowledged that ICIS right of inspection shall only extend to those records relating to the Customer’s use of the Data and that ICIS shall treat all information obtained during such an inspection as strictly confidential and shall not take any copies of such information. ICIS agrees to enter into such form of confidentiality agreement as the Customer may consider appropriate with regard to ICIS access to the Customer’s data during the course of such an inspection. This right of inspection shall not be exercised by ICIS more than once in each calendar year.
4.4. In the event that an audit under clause 4.3 reveals that the Customer has breached the terms of this agreement, the Customer agrees to reimburse ICIS for the cost of the audit, as well as all additional fees attributable to the number of unauthorized users revealed by the audit:
Fee per user: Incremental add-on +35%
– covering the number of payment periods since the earlier of the beginning of the Term and the date of any prior audit.
Furthermore, ICIS reserves the right to suspend the Service until any such issue has been resolved. ICIS shall have no liability for any loss, damage or inconvenience caused to the Customer by such a suspension of the Service.
5. Customers’ Equipment
5.1. The Customer undertakes that it has the equipment necessary to receive the Data. While ICIS will, on request, advise the Customer generally as to the equipment necessary to receive the Data, ICIS shall have no liability for any loss or damage arising out of the use of equipment belonging to or supplied by the Customer or for the failure of such equipment to receive the Data adequately or at all.
5.2. If the Customer fails to receive the Data and notifies ICIS within three working days of such failure, ICIS will re-send the Data.
6. Availability and Accuracy of Information
6.1. ICIS shall use all reasonable endeavours to ensure that the Service is provided at the times stated in the order confirmation throughout the year. However ICIS reserves the right to withdraw the Service temporarily for the purpose of carrying out repairs, modifications or correction to its equipment provided that ICIS shall endeavour to minimise interference to the Service.
6.2. The confirmation shall be made available by ICIS to Customers every working day (which shall, for the avoidance of doubt, exclude Saturdays, Sundays and English bank holidays) between the hours of 19:30 and 20:30 UK local time. It being acknowledged and agreed that time is not of the essence in this respect and that ICIS shall have no liability in the event that the availability of such Data is delayed for whatever reason.
6.3. While ICIS has no reason to believe that there are any inaccuracies or defects in the Data, it makes no representations or warranties express or implied including but not limited to fitness of the Data or the Service for any purpose whatsoever. Save to the extent provided in clause 7 below, the
Customer shall be entirely liable for activities which it, or any third parties, conduct in connection with The Data.
7.1. ICIS shall be liable under this Agreement for direct losses, save for loss of profits, suffered by the Customer arising from the negligent acts or omissions of ICIS or its employees in the provision of the Service, provided that (except in the event of either death or personal injury resulting there from or any loss incurred as a result of ICIS’s fraud) ICIS‘s total liability in respect of any incident or series of connected incidents shall not exceed a sum equivalent to the charges paid by the Customer pursuant to this Agreement during the twelve (12) month period preceding such incident or the first in such series of incidents.
7.2. Except as provided in Clause 7.1, ICIS shall not be liable for any loss, damage, costs, claims or demands of any nature whether arising out of tort, contract or otherwise and whether asserted against ICIS or against the Customer by any party arising directly or indirectly out of or in connection with the Data, its use or its withdrawal. All other conditions, warranties and other terms, whether express or implied by law or by statute which is inconsistent with this Clause 7 are hereby excluded to the fullest extent permitted by law.
7.3. ICIS shall have no liability for any consequential or incidental loss or damage, which shall include, but shall not be limited to, loss of property or of profit, business, revenue or anticipated savings suffered or incurred by the Customer.
7.4. Notwithstanding the early provisions of this Clause 7, ICIS total liability under this Agreement shall not in any event exceed the Subscription Fee paid by the Customer during the Subscription Period in which the liability (or liabilities) arise.
7.5. The Customer shall indemnify ICIS against all claims, demands, costs, losses and expenses incurred by or made against ICIS as a result of arising out of any breach of the Customer of the terms of this Agreement.
8. Term and Termination
8.1. This Agreement shall commence on the Start Date stated in the order confirmation and, subject to Clauses 8.3 and 8.4, shall continue until the end date, typically 12 months from the Start Date, unless specified on the order confirmation, or terminated under Clause 8.5 or 8.6.
8.2. No less than 30 days prior to the expiration of the initial, or any renewal term, ICIS shall notify the Customer of the approaching expiration date as well as any increase in the costs or changes to the Services which shall apply to the renewal term. In the event that the parties agree to renew this Agreement, such renewal shall be in accordance with the terms set out in the revised Schedule agreed between the parties.
8.3. Should either party be in breach of any of the terms and conditions and, having been notified of such breach, shall fail to remedy the same within fourteen (14) days, the other party may terminate this Agreement immediately by written notice without compensation and without prejudice to its rights and damages for such breach.
8.4. Either party may terminate this Agreement immediately by written notice to the other if the other shall make a composition or an arrangement with its creditors or shall go into liquidation (other than a voluntary liquidation for the purposes of amalgamation or reconstruction) or have a receiver or administrator or like person appointed over all or any part of its property or assets.
8.5. The Customer may cancel its subscription in respect of the Service by no less than thirty (30) days written notice expiring at the end of the Subscription Period as stated in the current or any renewal Schedule. In the event that the Customer cancels its subscription prior to the end of the Subscription Period no refund shall be due from ICIS to the Customer.
8.6. ICIS may terminate this Agreement if it wishes to cease to operate the Service by giving the Customer thirty (30) days written notice expiring at any time subject to a refund for the remainder of the Subscription Period on a pro rata basis of the Subscription Fee already paid by the Customer.
8.7. If, at any time, ICIS has reasonable grounds to believe that the Customer is not using the Data in accordance with this Agreement including, without limitation, by permitting or acquiescing to the use of the Data by persons other than the users identified in The order confirmation, ICIS may suspend the provision of the Service to the Customer. ICIS shall have no obligation to reinstate the Service until a user list has been agreed between the parties. ICIS shall have no liability for any loss, damage or inconvenience caused to the Customer by such a suspension of the Service. The Customer will not be entitled to any refund of monies paid within this subscription period. Once the suspension has been lifted, and provided that the issues surrounding the suspension have been resolved, the Customer will be entitled to receive and missing Data accumulated during the suspension period.
8.8. On expiry or termination of this Agreement for whatever reason the Customer shall cease all use of the Dataimmediately.
8.9. Expiry or termination of this Agreement shall be without prejudice to the accrued rights and obligations of the parties and, in particular, clauses 3, 7 and 9 shall survive termination of this Agreement for whatever reason.
9.1. Each party acknowledges and agrees that any and all information obtained from the other party or otherwise obtained in connection with the negotiation or performance of this Agreement in any form (including but not limited to the Data or the Service), concerning:
9.1.1. The design, development and marketing of electronic information distribution technology;
9.1.2 Computer program development and design;
9.1.3. cost, financial and marketing information regarding the other party and/or their business;
9.1.4. the other party’s prospective plans and activities, customer lists, trade secrets, know-how, software documentation and any compilations of otherwise public information; and/or
9.1.5. the business or operations of the other party which is of a confidential nature; is Confidential and Proprietary Information, and each party agrees that it will not, during the term of this Agreement and for five years thereafter, permit the duplication, use or disclosure of any such confidential and proprietary information to any person (other than its employees, who must have such information for the performance of such party’s obligations hereunder), unless such duplication, use, or disclosure is specifically authorised in writing by the other party.
9.2. The restriction in Clause 9.1 above shall not apply to Confidential Information which:
9.2.1. Is or becomes publicly available other than through the breach of this Agreement;
9.2.2. Can be demonstrated to the reasonable satisfaction of the disclosing party to have been known to the recipient prior to the disclosure by the disclosing party;
9.2.3. A party rightfully receives from a third party not bound by any confidentiality agreement with respect thereto;
9.2.4. Can be demonstrated to the reasonable satisfaction of the disclosing party to have been independently developed by the recipient;
9.2.5. Is required to be disclosed pursuant to legal or governmental requirements provided further that disclosure under this Clause shall be limited to persons legally entitled to receive the information.
This Agreement may not be assigned or sublet by the Customer without the prior written consent of ICIS such consent not to be unreasonably withheld.
Any notice, consent or other communication required to be given hereunder shall be made in writing and shall be sent by recorded post to the address of the other party. The customer address used will be that which is specified in the order confirmation (the order form) under contract signatory and shall be deemed to have been received on the second day after posting. The customer should send any notice to the following address:
ICIS, FAO: Sales Department, 1 Procter Street, London WC1V 6EU
12. Entire Agreement
This Agreement including the current or any renewal Schedule is the complete and exclusive statement of the agreement between the parties hereto and supersedes all prior agreements and communications between the parties concerning the subject matter hereof. The Customer acknowledges that no reliance is placed on any representation made but not embodied in this Agreement apart from any fraudulent statements made by ICIS. No variation of this Agreement shall be effective unless in writing signed by the parties and expressed to be such a variation.
No failure or delay by ICIS in exercising any remedy, right or privilege under or in relation to this Agreement shall operate as a waiver of the same nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of any other right, power or privilege.
The Clause headings in this Agreement are inserted for convenience only and shall not affect the interpretation of this Agreement.
15. Force Majeure
ICIS shall be under no liability for any failure, delay or omission by it in the performance of its obligations under this Agreement if such failure delay or omission arises from any cause beyond ICIS control, including, but not limited to acts of God, acts or regulations of any governmental or supra-national authority, war or national emergency, fire, civil disobedience, strikes, lock-outs and industrial disputes.
This Agreement shall be subject to the laws of England and both parties agree to submit to the exclusive jurisdiction of the English Courts.