1.1. BPG grants to Customer a non-exclusive, non-transferable license ("License") to use and display the Information constituting each BPG product specified in an Order, subject to the limitations contained in this Agreement and such Order. BPG retains all ownership rights (including copyrights, database rights under the Database Regulations 1997 and other intellectual property rights) in the Services, in any form, and Customer obtains only such rights as are explicitly granted in this Agreement and such Order.
1.2. Each License is for a term of twelve (12) months, beginning on the date of the Order, unless another term is specified in the Order. BPG may extend the term for an additional period, in its discretion, while the parties are engaged in renewal discussions. BPG reserves the right to renew the Order or Licence by sending written confirmation of such renewal to the Customer. Any such extension shall be subject to this Agreement. Each License or Order may be renewed as set forth in the Order and by mutual written agreement and payment of renewal fees and applicable product and service fees (the initial term and any renewal period for an Order or License constitute "the Term" for such Order or License).
1.3. BPG, in its discretion, may renew this Agreement or any of the Orders verbally. Such renewal will become effective by BPG sending a written confirmation of such verbal renewal to the Customer. Any such renewal shall be subject to this Agreement.
1.4. Telephone and email based software support is available during normal business hours during the Term of an Order for the currently licensed Software versions, and only if Customer has installed all Updates received.
2. Restrictions on Use
2.1. Information and Software are licensed for Customer's internal use only and (i) only at the points of service specified in the Order; (ii) only for the frequency of use or total number of users set forth in the Order; and (iii) subject to any other restrictions set forth in the Order.
2.2. Customer will not provide Information, Software or other Services to others, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise, or use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); use or permit the use of Information to prepare any comparison to other information databases that is or will be provided to third parties; or voluntarily produce Information in legal proceedings.
2.3. Customer will not attempt to access, use, modify copy, reverse engineer, or otherwise derive the source code of Software.
2.4. Upon reasonable notice and during normal business hours, Customer will permit BPG to inspect the locations at, or computer systems on which, Information and Software are used, stored or transmitted so that BPG can verify Customer's compliance with this Agreement.
2.5. Customer will not use any Service to engage in any unfair or deceptive practices and will use the Services only in compliance with applicable laws or regulations, including laws and regulations regarding telemarketing, customer solicitation (including fax and/or e-mail solicitation), data protection and privacy.
3. Data Protection Obligations
3.1. Each party acknowledges that it shall comply with its obligations under the Data Protection Consumer Credit Acts in relation to this Agreement.
3.2. In relation to personal data contained in the Information obtained from BPG, the Customer undertakes to comply with the following obligations: (i) to use the information it obtains from BPG only for the purpose specified in the [Order Form]; (ii) Customer will include a clear and prominent notice in its terms and conditions with its clients explaining that (a) the Customer may consult credit reference agencies in order to assess the creditworthiness of the client (iii) to ensure that the information is only used by appropriate authorised and trained personnel and (iv) to take and maintain appropriate technical and generational security measures and procedures to safeguard the information from accidental loss or unauthorised disclosure; and (v) subject to the requirements of the Data Protection Act 1998, to keep the information strictly confidential.
3.3. In the event that Customer supplies information to BPG, Customer shall include a clear and prominent notice in its terms and conditions with its clients explaining that: (i) the Customer may provide information about its clients’ accounts and identity to credit reference agencies and obtaining such clients express consent to this; (ii) the credit reference agency may use such information in conjunction with other information that it obtains, for example from Companies House, and may retain such information for use in credit reference services that it provides to its other clients.
4.1. Customer will not copy, download, upload or in any other way reproduce Information or Software except for creating a reasonable number of copies of Information in any format for internal use only in accordance with this Agreement and not for general internal distribution.
5. Third Party Services
5.1. Customer may engage a third party to process or host Information (a "Processor") provided that Processor and BPG enter into a BPG Processor’s Agreement before any Information or Software is provided to the Processor.
5.2. Third parties that provide information to BPG for use in providing the Services are intended third party beneficiaries of paragraphs 7 and 10. Notwithstanding the foregoing, the parties may amend these terms without the consent of any third party beneficiaries.
5.3. Subject to paragraph 5.2 above, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 (the Act) to rely upon or enforce any term of this Agreement but that does not affect any right or remedy of a third party which exists or is available apart from the Act.
6.1. Customer will pay BPG in accordance with the Order. Prices and product descriptions are those set forth in the Order, or, if not included in the Order, in the applicable pricing and product policies, which policies are incorporated herein. A late payment charge of 4% above the base rate from time to time of Bank of Ireland plc. calculated on a daily basis will be applied to any outstanding balances until paid.
6.2. Time of payment shall be of the essence under this Agreement.
6.3. Customer will pay any VAT properly chargeable under this Agreement.
6.4. Subject to express terms being agreed in writing on the Order, Customer may be entitled to "carry over" portions of unused volume or usage upon renewal of an Order.
6.5. If Customer exceeds the agreed usage on the Order, Customer will pay BPG the applicable pricing for the product as set by BPG from time to time.
6.6. If Customer's pricing with respect to a particular Order is based on Customer's expected volume or usage as indicated on such Order and Customer does not meet such volume or usage levels, Customer will pay BPG a sum based on the pricing applicable to the volume or usage actually utilized by Customer.
6.7. If customer places debts for recovery, customer agrees to assign the accounts to BPG for a period of not less than six months.
6.8. Customer agrees to pay commission as outlined in the order on all accounts placed for recovery from the date of placement for a period not less than six months.
6.9. Accounts placed for recovery by customer cannot be de-listed or closed without payment of a service fee within the 6 months since placement.
6.10. Service fee payable by customer for premature closure will not exceed 10% of the balance submitted for collection.
6.11. Where accounts have been placed for recovery, Customer agrees to report all payments received by customer to BPG within 24 hours of receipt
6.12. Any interest earned on trust funds held in trust by BPG on behalf of the customer shall be due to the customer.
6.13. All monies recovered on debts placed for collection are paid to the customer, less commission, once cheque and other payment instruments have cleared the trust account.
7.1. Though BPG uses extensive procedures to keep its database current and to maintain accurate data, Customer acknowledges that the Information will contain a degree of error and that Customer is responsible for determining that the Information is sufficiently accurate for Customer's purposes.
7.2. ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, BPG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BPG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. SUBJECT TO PARAGRAPH 10.2, BPG WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, BPG'S CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING SERVICES.
8. Copyrights and Other Proprietary Rights
8.1. Customer acknowledges that Information and Software are proprietary works of BPG and comprise: (i) works of original authorship, including compiled Information containing BPG's selection, arrangement and coordination and expression of such Information or pre-existing material it has created, gathered or assembled; (ii) trade secret and other confidential information, including information that derives value or potential value from not being readily known or available; and (iii) information that has been created, developed and maintained by BPG at great expense, such that misappropriation or unauthorized use by others for commercial gain would unfairly and/or irreparably harm BPG or reduce BPG's incentive to create, develop and maintain such information. Customer will not commit or permit any act or omission that would contest or impair BPG's proprietary and intellectual property rights in Information and Software or that would cause the Information or Software to infringe the proprietary or intellectual property rights of a third party. Customer will reproduce BPG's copyright and proprietary rights legend on all copies of Information and Software.
8.2. Customer will not use any trademark, service mark or trade name of BPG or any of BPG’s affiliated companies or publish any press releases regarding this Agreement or any Order.
8.3. BPG will treat all information that Customer designates in writing to be proprietary in the same manner as BPG treats its own proprietary information. BPG agrees not to use such identified proprietary information except for the purposes of performing its obligations to Customer and for internal analytical purposes (i.e., analysing such data to improve BPG’s products and services). Such proprietary information shall not include information that (i) is or becomes a part of the public domain through no act or omission of BPG; (ii) was in BPG’s lawful possession prior to Customer’s disclosure to BPG; (iii) is lawfully disclosed to BPG by a third-party with the right to disclose such information and without restriction on such disclosure; or (iv) is independently developed by BPG without use of or reference to the proprietary information.
8.4. BPG represents and warrants to Customer that, to BPG's knowledge, the Software and Information, when used in accordance with this Agreement, do not violate any existing copyrights, patents, trademarks, or other intellectual property rights of any third party in the territory where the Services are provided. The foregoing warranty does not apply to the extent Customer modifies the Software or Information in any way or combines the Software or Information with material from third parties.
9.1. In the event of material breach (including, without limitation, an assignment in violation of paragraph 12.2 here of) by Customer or BPG, the non-breaching party may immediately terminate this Agreement or particular Orders without prior notice. In addition, BPG may terminate this Agreement or particular Orders upon 30 days' prior written notice; provided that if BPG terminates this Agreement or particular Orders other than for cause or other than in accordance with Paragraph 1.3, BPG will refund to Customer the unused balance of any amounts paid under the relevant Orders.
9.2. The provisions set forth in paragraphs 2, 3, 4, 5, 6, 7, 8, 10.2, 10.3, 10.4, 11 and 12 will survive the termination of this Agreement.
9.3. If, without BPG's written permission, Customer continues after termination to obtain Services covered by a terminated Order or Agreement, Customer will be liable to BPG for the undiscounted list price for such Services in effect on the date of such termination.
9.4. Upon termination of a Term with respect to particular Information or Software, or upon receipt of Software or Information that is intended to supersede previously obtained Software or Information, unless BPG instructs Customer otherwise, Customer will immediately delete or destroy all originals and copies of the Information or Software, and upon request, provide BPG with certification thereof.
9.5. Termination of this Agreement will result in a termination of all outstanding Orders.
10. Limitation of Liability
10.1. Each party's liability to the other party for death or personal injury resulting from its own or that of its employees, agents or subcontractors negligence, or for fraudulent misrepresentation, shall not be limited.
10.2. Except for claims arising out of breaches of Clauses 2, 3 or 8, each party’s aggregate liability with respect to a particular order whether arising in contract, tort or otherwise (including in each case negligence) will not exceed the aggregate amount payable by Customer to BPG pursuant to such order. Any claims must be brought, in accordance with this agreement, within 12 months of the first occurrence giving rise to such claims, or such claims will be forever barred.
10.3. BPG shall not be liable to the Customer for any loss of profits, goodwill, savings or for any type of special, indirect or consequential loss even if such loss was reasonably foreseeable or either party had been advised of the possibility of the other party incurring the same.
11. Choice of Law; Disputes
11.1. This Agreement is governed by and construed in accordance with the laws of Ireland and both parties irrevocably submit to the non-exclusive jurisdiction of the Irish Courts.
11.2. Customer will pay all costs and expenses, including reasonable attorneys' fees, that BPG incurs in any action to enforce Customer's and Customer-Related Companies' obligations under this Agreement.
12.1. This Agreement, all Orders, addenda and schedules, and BPG's published policies and procedures referred to herein and in effect from time to time, including those published on BPG's web site, constitute the entire agreement between BPG and Customer regarding the Services. Save as expressly set out in this Agreement, neither party shall have any liability for any other representation, warranty or promise made prior to the date of the Agreement unless it was made fraudulently. Unless an Order states otherwise, where there is a conflict between the terms of any addenda or schedules and this Agreement, the terms of the Agreement shall control with respect to the Services. Where there is a conflict between the terms of any Order and this Agreement, the terms of the Order shall control with respect to the Services set forth in such Order and solely to the extent of the conflict.
12.2. This Agreement binds and inures to the benefit of the parties and their successors and assigns, except that neither party will assign this Agreement without the prior written consent of the other party; however, BPG may assign the Agreement in connection with a merger or consolidation involving BPG (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of BPG's assets (so long as the assignment is to the acquirer of such assets).
12.3. BPG may amend this Agreement or any Order (including without limitation the payment terms) at any time and in any format, provided that it shall give written notice of such amendment to the Customer. Customer must notify BPG within (30) days of receipt of such notice of amendment if it refuses to accept such amendment in which event this Agreement or any Order shall continue in force unamended until the earlier of the date of expiration of such Order or the termination of this Agreement. Any amendment made by Customer to this Agreement or any Order must be in writing signed by both parties.
12.4. Customer using recovery services will only place for collection legitimate accounts for amounts owed to customer.