James Treacy Ltd trading as BusinessPro (“JTLTD”) and you ("Customer") agree that JTLTD shall make available to Customer, via an internet interface provided by Creditsafe Ireland Limited, business information services ("Services"), which may include information ("Information") subject to this Master Agreement ("Agreement").
In consideration of the mutual obligations assumed under this Agreement, each party agrees to the terms and conditions attached to this Agreement and represents that this Agreement is executed by duly authorized representatives as of the date of electronic acceptance:
1.1 JTLTD grants to Customer a non-exclusive, non-transferable license ("License") to use and display the Information constituting each JTLTD product specified in an Order Confirmation, subject to the limitations contained in this Agreement. JTLTD retains all ownership rights (including copyrights, database rights under the Copyright and Related Rights Act 2000 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 Confirmation, unless another term is specified in the Order.
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 Confirmation; and (iii) subject to any other restrictions set forth in the Order Confirmation..
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 JTLTD to inspect the locations at, or computer systems on which, Information and Software are used, stored or transmitted so that JTLTD 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 Acts 1998 and 2003 in relation to this Agreement.
3.2 In relation to personal data contained in the Information obtained from JTLTD, the Customer undertakes to comply with the following obligations:
(i) to use the information it obtains from JTLTD only for the purpose specified in this agreement;
(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 organisational security measures and procedures to safeguard the information from accidental loss or unauthorised disclosure; and
(v) subject to the requirements of the Data Protection Acts 1998 and 2003, to keep the information strictly confidential.
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 JTLTD enter into a JTLTD Processor’s Agreement before any Information or Software is provided to the Processor.
5.2 Third parties that provide information to JTLTD 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 Creditsafe in accordance with the Order Confirmation. Prices and product descriptions are those set forth in the Order Confirmation. Time of payment shall be of the essence under this Agreement.
6.2 Customer will pay any VAT properly chargeable under this Agreement.
7.1 Though JTLTD 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, JTLTD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. JTLTD 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, JTLTD WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, JTLTD'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 JTLTD and comprise:
(i) works of original authorship, including compiled Information containing JTLTD'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 JTLTD at great expense, such that misappropriation or unauthorized use by others for commercial gain would unfairly and/or irreparably harm JTLTD or reduce JTLTD's incentive to create, develop and maintain such information. Customer will not commit or permit any act or omission that would contest or impair JTLTD'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 JTLTD'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 JTLTD or any of JTLTD’s affiliated companies or publish any press releases regarding this Agreement or any Order.
8.3 JTLTD will treat all information that Customer designates in writing to be proprietary in the same manner as JTLTD treats its own proprietary information. JTLTD 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., analyzing such data to improve JTLTD’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 JTLTD;
(ii) was in JTLTD’s lawful possession prior to Customer’s disclosure to JTLTD;
(iii) is lawfully disclosed to JTLTD by a third-party with the right to disclose such information and without restriction on such disclosure; or
(iv) is independently developed by JTLTD without use of or reference to the proprietary information.
8.4 JTLTD represents and warrants to Customer that, to JTLTD'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 hereof) by Customer or JTLTD, the non-breaching party may immediately terminate this Agreement or particular Orders without prior notice.
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 JTLTD's written permission, Customer continues after termination to obtain Services covered by a terminated Agreement, Customer will be liable to JTLTD 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 JTLTD instructs Customer otherwise, Customer will immediately delete or destroy all originals and copies of the Information or Software, and upon request, provide JTLTD with certification thereof.
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 Creditsafe 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 JTLTD 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 exclusive jurisdiction of the Irish Courts.
11.2 Customer will pay all costs and expenses, including reasonable attorneys' fees, that JTLTD 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 JTLTD's published policies and procedures referred to herein and in effect from time to time, including those published on JTLTD's web site, constitute the entire agreement between JTLTD 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, JTLTD may assign the Agreement in connection with a merger or consolidation involving JTLTD (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of JTLTD's assets (so long as the assignment is to the acquirer of such assets).