2. THE SERVICES
(a) The provision and use of the Services shall be subject to these Terms and Conditions
(b) Experian reserves the right at any time due to circumstances beyond its reasonable control to vary the nature of the Services
(c) Experian may, at any time by giving written notice to the Client amend or vary these Terms and Conditions and such amended or varied Terms and Conditions shall apply to the provision of Services after the date of such notice. If the Client objects to such amendment or variation then the Client may, within 28 days of receipt of Experianís notice of such amendment or variation, terminate the entitlement of the Client to receive services pursuant to these Terms and Conditions by written notice to Experian
3. PAYMENT OF CHARGES
(a) The Client agrees to pay the Charges in connection with the Services. Experian shall be entitled to invoice the Client at any time after the end of each calendar month for the Charges incurred by the Client in that calendar month. The Client will make payment of each such invoice within thirty days of the date its receipt of or (if agreed by the parties in writing) by direct debit to Experianís nominated bank account
(b) If the Client does not make payment of the Charges by the due date Experian shall be entitled by notice in writing to the Client (without prejudice to any other remedies it may have) to charge interest on the amount outstanding at the rate of 2% per annum above Barclays Bank plc base rate for the time being from the date of receipt of the notice until the date on which payment is received by Experian (whether before or after any court judgement)
(c) All sums payable hereunder shall be exclusive of Value Added Tax (and any other duty chargeable in respect thereof) which shall be charged at the rate prevailing from time to time
4. COPYRIGHT AND CONFIDENTIALITY
(a) Title to and all of the intellectual property rights (including without limitation copyright and database right) in all reports and information (including without limitation the Results) shall at all times remain vested in Experian (or Experianís third party licensors) and the Client shall acquire no proprietary rights whatsoever therein.
(b) The Client undertakes that it shall use the Services solely for the internal purposes of its own business and (save as is required by law) will:-
(i) keep the Results strictly confidential
(ii) not publish all of any part of the Results
(iii) not divulge or disclose all or any part of the Results to any third party
(iv) permit access to the Results only to those of its officers or employees who need to know or use the same and ensure that such officers or employees comply with the provisions of sub-clauses (i) to (iii) above
(v) not copy, distribute or commercially exploit the Results other than as expressly permitted by these Terms and Conditions
(c) The Client further undertakes that it shall not use or permit the use of the Services and/or Results for the purpose of providing authentication, fraud prevention or any other information based services to any Third Party. The expression "Third Party" shall not include any company which is a member of the Client's Group and the expression "a member of the Client's Group" shall mean any subsidiary of the Client or any holding company (whether ultimate or intermediate) of the Client or any subsidiary (whether direct or indirect) of any such holding company (whilst in each case they remain as such) as such expressions are defined in Section 736 of the Companies Act 1985 (as amended or re-enacted). The Client shall procure that any and all such members of the Client's Group shall be bound by the terms of this Clause 4 of these Terms and Conditions
(a) The Client will comply fully with all rules and guidelines from time to time reasonably prescribed by Experian in relation to the manner of the provision of the Services as Experian may require for the purposes of ensuring the security of the Services and/or Experianís information and systems generally
(b) The Client acknowledges and agrees that control of and security of account numbers, identification codes and passwords used to access the Services (collectively the "Client ID") are its sole responsibility and that Experian shall have no liability whatsoever to the Client for any losses (whether direct indirect or consequential) occasioned by use of the Client ID by unauthorised persons. From time to time Experian may issue the Client with new Client ID. Any new Client ID will take effect 24 hours after notice to the Client of the new Client ID
(c) The Client further agrees that:
it will maintain appropriate technical and
organisational security measures and procedures to prevent the accidental or
unauthorised disclosure of the Client ID or the use of the Client ID by any
it will inform Experian immediately on becoming
aware of any unauthorised use and/or disclosure of the Client ID, or if any
equipment used by the Client to access the Services is stolen
it remains liable for any and all Charges incurred in
connection with the Client ID irrespective of whether such Charges are
authorised by the Client
(iv) Experian may invalidate or otherwise suspend use of the Client ID if (a) the Client is in breach of its obligations under these Terms and Conditions or (b) Experian is notified, or becomes aware, of any unauthorised or improper use of the Client ID by the Client or any third party, or of the fact that any equipment used to access the Services has been stolen
6. PERFORMANCE AND LIABILITY
(a) Experian shall use all reasonable skill and care in the provision of the Services
(b) The Client agrees and acknowledges that the Results should not be used as the sole basis for a business decision of the Client
(c) The Client acknowledges that the Services will be based on information provided to Experian by third parties whose accuracy Experian cannot control. Accordingly Experian does not warrant the accuracy of the Results. Experian shall in no circumstances be liable for any loss of whatsoever nature suffered by the Client as a result of its use of the Services or its reliance upon the availability of the Services including without limitation any loss suffered as a result of any claim by the subject of any Results
(d) Experian will not be liable for any indirect or consequential loss, or loss of profits, loss of sales, increase in (or failure to reduce the level of) bad debt or fraud or loss of business whether arising out of the negligence of Experian its servants and/or agents breach of contract or other tort or otherwise. The maximum aggregate liability of Experian in any period of 12 months commencing upon the Commencement Date or any subsequent anniversary of that date ("a Year") in respect of all and any claims (for negligence, breach of contract or otherwise) by the Client in connection with the Services shall not in respect of the first Year exceed the amount payable by the Client for the Services provided during that Year and in respect of any subsequent Year shall not exceed the amount payable by the Client for the Services provided in the immediately preceding Year.
(e) (i) Except as expressly provided in these Terms and Conditions no representation, warranty, condition, undertaking, term or otherwise is given and all such representations, warranties, conditions, undertakings and terms are insofar as statute allows hereby excluded
(ii)The provisions of sub-clauses 6 (c) and (d) above shall not apply to any claims in respect of death or personal injury arising out of the negligence of Experian its servants or agents
(f) The Client will indemnify and keep fully indemnified Experian its officers employees or other agents against any third party claim or action made or instituted and against any of them in respect of any losses, damages cost or other expenses in connection therewith (including without limitation any payment by Experian on legal advice to settle any such claim or action) which is either due to the Client (by act or omission) rendering the Results inaccurate or incomplete or arises otherwise in connection with the Services but (in connection only to the Client's use of the Services) save to the extent that Experian is in default
7. APPLICATION INFORMATION
The Client hereby grants Experian a royalty-free, non-transferrable, perpetual licence to use the Application Information for the purposes of Experian enhancing the databases used to provide the Services and any other databases of Experian and in order to provide services similar to the Services and other risk and fraud prevention services to third parties. The Client warrants to Experian that it is entitled to make the Application Information available to Experian for the purposes set out in this Clause 7.
8. CO-OPERATION AND ASSISTANCE
The Client shall at its own cost co-operate with Experian to such extent and provide to Experian such information and assistance as Experian shall reasonably require to enable Experian to perform its obligations in relation to the Services
(a) Either party may terminate the Client's entitlement to receive services pursuant to these Terms and Conditions by giving the other party not less than 7 days prior written notice.
(b) Termination of the Client's entitlement to receive services pursuant to these Terms and Conditions ("Termination") shall be without prejudice to any rights of either party which may have accrued prior to Termination or to any provision of these Terms and Conditions which by its terms is intended to survive Termination. Upon Termination for whatsoever reason Experian shall be entitled immediately to invalidate the Client ID and the Client shall immediately deliver up to Experian any documentation provided in connection with the Services.
10. STATUTORY COMPLIANCE
- Each of the parties hereto undertakes to the other
that in respect of the provision and use of the Services (as appropriate) it
will at all times comply fully with all relevant statutory enactments
(including without limitation the Consumer Credit Act 1974 and the Data
Protection Act 1998 (and the Data Protection principles thereunder)) (and
all re-enactments thereof and amendments thereto) or regulations or
requirements made by any governmental authority or equivalent body of
- Without prejudice to the generality of Clause 10(a) above the Client further undertakes to Experian that it holds all necessary registrations and licences for the use of the Services and that on each occasion that the Client wishes to use the Services.
11. FORCE MAJEURE
Neither party shall be under any liability to the other in respect of any failure to perform or delay in performing any of its obligations hereunder which is due to any cause or failure beyond its reasonable control.
The rights granted to the parties hereto are personal to them and neither party shall assign or grant any rights under these Terms and Conditions without the prior written consent of the other (such consent not to be unreasonably withheld or delayed)
No failure by either party to exercise any right or remedy available to it hereunder nor any delay to exercise such right or remedy shall operate as a waiver thereof nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy
14. ENTIRE AGREEMENT
These Terms and Conditions constitute the whole of the terms agreed between the parties hereto in respect of the subject matter hereof (save to the extent that either party has relied upon a fraudulent misrepresentation of the other which has induced such party to agree to these Terms and Conditions) and supersede all previous negotiations understandings or representations. Other than as provided in Clause 2(c) above, these Terms and Conditions shall be capable of being varied only by an instrument in writing signed by a duly authorised officer of each of the parties hereto. If there is any conflict between these Terms and Conditions and any other terms posted or available on the Web Site from time to time then these Terms and Conditions shall prevail to the extent of any inconsistency. References in this document to these "Terms and Conditions" shall be to these Terms and Conditions as amended or varied from time to time.
These Terms and Conditions are severable in that if any provision of these Terms and Conditions is determined to be illegal or unenforceable by any Court of competent jurisdiction it shall be deleted to that extent and no further without affecting the remaining provisions of these Terms and Conditions
The headings used for these terms and conditions are for convenience only and shall not affect the construction of these Terms and Conditions
These Terms and Conditions shall be governed by the laws of England to the exclusive jurisdiction of whose Courts the parties hereby submit.
Any notice to be given hereunder may be given in writing by recorded delivery post or facsimile or e mail to the address or facsimile number as set out (in the case of the Client) in its application to receive services pursuant to these Terms and Conditions or (in the case of Experian) on the Web Site (the address of the principal place of business being the address for service if different from the registered office address) and shall be deemed received (if posted to the correct address) two working days after being posted or (if sent by facsimile to the correct facsimile number) one hour after transmission or (if sent by facsimile outside the normal working hours of the addressee) one hour after the re-opening for business of the addressee provided that service by facsimile shall only be effective if the original of the facsimile is placed in the post the same day as the facsimile is transmitted or (if sent by e mail to the correct e mail address) when a receipt notification is received.
19.THIRD PARTY RIGHTS
The parties hereby agree that nothing in these Terms and Conditions shall be construed as creating a right which is enforceable by any person who is not a party to these Terms and Conditions.
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