CREDITSAFE SERVICE TERMS & CONDITIONS
Last Updated: 23/05/2018
1.1 In this Agreement, unless the context otherwise requires, the following definitions and rules of interpretation apply:
Agreement: these terms and conditions, the Order, and any other documents or terms incorporated into these terms by reference;
Confidential Information: information, in any form, of a confidential or proprietary nature disclosed by one party to the other which is marked as confidential; or is identified as confidential at the time of disclosure; or would be regarded by a reasonable business person as being confidential, including but not limited to information regarding the disclosing party’s business, customers, suppliers, software, know-how, processes and business intentions;
Creditsafe: Creditsafe Nederland B.V., registered in the Netherlands (company number 34288893), whose registered office is at Jan Pietersz. Coenstraat 10, 2595 WP Den Haag, Nederland;
Customer: the person who purchases the Services from Creditsafe, as detailed in the Order;
Deliverables: the deliverables provided or obtained via the Services, including credit report data and related information;
IPR: any and all intellectual property rights, including all patents, copyright and related rights, trademarks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights;
Order: the Customer’s order for the Services, as detailed on Creditsafe’s written proposal, written acceptance, invoice, or overleaf as the case may be;
Service Charges: the charges payable by the Customer for the Services as detailed in the Order;
Services: the services set out in the Order, which may include:
• The provision of company reports and information (including an assessment of the creditworthiness of third party businesses) via the Website;
• The provision of marketing and prospecting data via the internet;
• Related services, such as the provision of consumer credit reports, tracing, anti-money laundering and/or debt recovery solutions,
and Service means any one of the Services;
Software: Creditsafe’s or its third party licensors’ software, including the software used to operate the Service via the Website and other applications;
Supplementary Terms: the terms & conditions applicable to specific Services, which supplement the terms of this Agreement;
Third Party Services: those parts of the Services (if any) provided by third parties;
Website: creditsafeuk.com (as amended or replaced from time to time).
1.2 In this Agreement, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted, including any subordinate legislation made under it;
(c) any phrase preceded by the term including or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(d) a reference to writing or written includes faxes and e-mails from persons with sufficient authority to bind a party.
1.3 These terms and conditions shall apply to the Order to the exclusion of any other terms (save for the Supplementary Terms, which shall take precedence over these terms and conditions to the extent they relate to the relevant Service).
2.1 This Agreement shall commence on the date shown in the Order or otherwise on commencement of the Service and shall continue for a period of 12 months unless otherwise specified in the Order.
2.2 The Customer may be contacted by Creditsafe during this Agreement regarding new developments and products.
2.3 Creditsafe shall provide the Services to the Customer in accordance with this Agreement and with reasonable skill and care.
2.4 Creditsafe may alter the Services from time to time.
2.5 The rights to access and use the Services (including any credits to access or download reports) are limited to the duration of this Agreement and shall automatically lapse on termination or expiry of this Agreement. No subscriptions, rights or credits may be extended or carried over on any renewal, unless agreed in writing by Creditsafe. No refund shall be payable by Creditsafe in respect of any unused rights or credits.
3. User accounts and over usage
3.1 User accounts used to access the Services are restricted to single use by a designated individual and may not be used by any person other than the named user. A user account may be reassigned to another individual with Creditsafe’s approval, in which case the prior user shall have no further right to access or use the Services.
3.2 The Customer undertakes that:
(a) each user shall keep a secure password for his use of the Services, which shall be changed regularly and kept confidential;
(b) it shall maintain a written, up to date list of its authorised users and provide the same to Creditsafe on request;
(c) it shall permit Creditsafe to audit its use of the Services in order to establish the name and password of each user account and the individual(s) accessing the user accounts. Such audit may be conducted no more than once a quarter, at Creditsafe’s expense and on reasonable prior notice.
3.3 If Creditsafe becomes aware that the Customer has underpaid Service Charges as a result of its use of the Services then, without prejudice to Creditsafe’s other rights, the Customer shall pay to Creditsafe an amount equal to the underpayment based on Creditsafe’s then current standard rates within 30 days of Creditsafe’s invoice.
3.4 The provision of the Services may be subject to limitations on, for example, user subscription numbers and/or types and/or usage of the Services. Such limitations may be increased (but not decreased) during the term of the Agreement, subject to agreement on the Service Charges payable for such increases.
3.5 In the event of any over usage of the Services, for example due to accessing reports beyond the usage limits set out in the Order, the Customer shall be liable to pay the cost of such over usage at the standard unit rates set by Creditsafe from time to time. Creditsafe may, but shall not be obliged to, contact the Customer prior to it reaching a usage limit in order to agree an additional allotment of units (subject to payment of an agreed amount).
4. Service Charges and payment
4.1 In consideration of Creditsafe providing the Services, the Customer shall pay the Service Charges to Creditsafe. Unless otherwise agreed, all Service Charges are payable in advance. Creditsafe shall be entitled to invoice the Service Charges any time after placement of the Order and invoices shall be payable (without deduction or set-off) within 21 days of the invoice date (unless otherwise agreed).
4.2 If a party fails to pay any amount due to the other by the due date for payment, that party shall pay interest immediately on demand on any outstanding amount at the rate provided by the Late Payment of Commercial Debts (Interest) Act 1998 from the due date for payment until the payment is made in full, whether before or after judgment.
4.3 The Service Charges are exclusive of amounts in respect of VAT, which shall be payable by the Customer in addition.
4.4 The Customer acknowledges and agrees that:
(a) Creditsafe may collect payment information relating to the Customer and its payment of Creditsafe’s invoices, which will be used by Creditsafe as part of its products/services; and
(b) any failure by the Customer to pay Creditsafe’s invoices on time may have an adverse impact on the Customer’s credit rating.
5. Creditsafe’s obligations
5.1 Creditsafe shall:
(a) use reasonable endeavours to make the Services available 24 hours a day, 7 days a week, provided that Creditsafe may need to conduct planned or emergency maintenance which may periodically affect the availability of some or all of the Services. Creditsafe shall use reasonable endeavours to notify the Customer of any planned maintenance in advance;
(b) provide the Customer with reasonable information and assistance to enable the Customer’s employees to access and use the Services;
(c) comply with all applicable laws and regulations in connection with the provision of the Services; and
(d) ensure that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6. Creditsafe’s proprietary rights
6.1 Creditsafe or its third party licensors shall own all IPR relating to or arising out of the Services (including all IPR in the Software and associated documentation). Creditsafe licenses the Customer to use those IPR on a non-exclusive basis to such extent as is necessary to enable the Customer to use the Services. Nothing in this Agreement operates to transfer any such IPR.
6.2 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Services in any form or media or by any means;
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(c) access all or any part of the Services in order to build a product or service which competes with the Services;
(d) use the Services or any Deliverables to provide services to third parties;
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Deliverables available to any third party except authorised users of the Customer; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as expressly provided by this Agreement.
6.3 The Deliverables are licensed to the Customer for internal business use only for the duration of this Agreement. Unless otherwise specified in the Order, the Deliverables may only be used within the United Kingdom and Republic of Ireland. Other licensing restrictions may apply, as set out in the Order.
7. Customer's obligations
7.1 The Customer shall:
(a) provide Creditsafe with any information or assistance reasonably required in order for Creditsafe to perform its obligations under this Agreement, and shall use all reasonable endeavours to ensure that any such information is complete, accurate and in the agreed format;
(b) not do anything to intentionally or negligently harm Creditsafe’s reputation;
(c) abide by all laws & regulations applicable to its use of the Services;
(d) not access, store, distribute or transmit in the course of using the Services any viruses or harmful elements or any material that is illegal, harmful, threatening, defamatory, offensive, discriminatory or which may cause damage or injury to any person or property;
(e) not use any automated system, software or means to extract or download data from any part of the Services; and
(f) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, shall promptly notify Creditsafe.
7.2 If Creditsafe reasonably suspects that the Customer is in default of any obligation in clause 7.1, it may immediately suspend the Customer’s access to the Services. Creditsafe shall have no liability for any failure to provide or delay in providing the Services in accordance with the terms of this Agreement to the extent such failure or delay results from the failure of the Customer to comply with this Agreement.
7.3 If the Customer receives consumer reporting services (Consumer Service), the Customer undertakes and warrants that it shall only use the Consumer Service to conduct searches for which it has obtained prior consent from the relevant individual and it shall not use the Consumer Service for any tracing, debt collection or private investigation activities. The Consumer Service is also subject to Supplementary Terms and the Customer agrees to comply with such terms.
7.4 If the Customer receives prospecting or marketing information (Prospecting Data), the Customer is licensed to utilise the Prospecting Data for internal marketing purposes only. The Customer is responsible for determining on which lawful basis it shall utilise the Prospecting Data pursuant to the Privacy and Data Protection Requirements (as defined below) and for compliance with all legal and regulatory requirements in relation to such Prospecting Data, including the Telephone Preference Service, Commercial Telephone Preference Service, and DMA guidelines.
8. Data protection
8.1 For the purpose of this Agreement "data controller", "personal data", and "processing" have the definitions contained in the Data Protection Legislation and "Data Protection Legislation" means (i) the Data Protection Act 1998, until the effective date of its repeal; (ii) the General Data Protection Regulation ((EU) 2016/679) ("GDPR") and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK; and (iii) any successor legislation to the Data Protection Act 1998 and GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.
8.2 This clause 8 sets out the framework for the sharing of personal data between the parties as data controllers.
8.3 Each party agrees to comply with the Data Protection Legislation in connection with the provision and receipt of the Services and any personal data comprised within the Services.
8.4 The Customer acknowledges that accessing personal data through the use of the Services is only permitted where the Customer has a lawful basis for doing so and the Customer warrants that it shall only request personal data where the Customer has a lawful basis for doing so. The Customer is responsible for establishing the lawful basis for processing personal data obtained pursuant to use of the Services and maintaining compliance with the Data Protection Legislation in connection with such data.
8.5 The Customer agrees that it shall only access and use the Services for, as applicable, the purpose of credit checking, prospecting, direct marketing, know your customer checks, compliance, data verification and enhancement and other lawful internal business purposes.
8.6 The Customer acknowledges that it is its duty to record and demonstrate the existence of its lawful basis for processing.
8.7 Where the Customer uses the monitoring service, Creditsafe will inform the Customer by email whenever there is a relevant change in the data monitored. The Customer shall stop the monitoring service for monitored data when the Customer ceases to have a lawful basis of processing that data.
8.8 The parties agree that if, following the GDPR coming into force, Creditsafe considers that the provisions of this clause 8 do not comply with GDPR then Creditsafe may adapt, update or amend the terms of this Clause 8 to ensure compliance with GDPR.
8.9 Creditsafe and the Customer both acknowledge that as a result of the United Kingdom leaving the European Union the law relating to privacy and data protection as it applies to this Agreement may change. Should such a situation arise Creditsafe may make any alterations, amendments or updates to this clause 8 that may be required as a result of such changes.
9. Warranty and disclaimer
9.1 Creditsafe warrants that the Services will be provided substantially in accordance with this Agreement and with reasonable skill and care, provided that this shall not apply to the extent of any non-conformance caused by Third Party Services, the use of the Services contrary to Creditsafe’s instructions, or modification or alteration of the Services by any party other than Creditsafe, its agents or contractors. If the Services do not conform with the foregoing warranty, Creditsafe shall use reasonable endeavours to correct any such non-conformance promptly or provide alternative means of accomplishing the desired performance, which shall constitute the Customer’s sole and exclusive remedy for any non-conformance with the warranty in this clause 9.1
9.2 Creditsafe does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, or that the Services and/or Deliverables will meet the Customer’s requirements.
9.3 Whilst Creditsafe takes all reasonable efforts to maintain the quality and accuracy of the Deliverables, the Services are not intended to be used as the sole basis for any decision making and are based upon data that is provided by third parties, the accuracy of which it would not be possible for Creditsafe to guarantee. Accordingly, Creditsafe shall not be responsible for any reliance placed by the Customer on the Deliverables or any consequences of the Customer’s use of the Deliverables.
9.4 Except as set out in clause 9.1, the Services and Third Party Services are provided on an "as is", as available basis without warranties of any kind, whether express or implied. Any warranties or conditions implied by statute or common law are excluded to the fullest extent permitted by law.
10.1 Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, or any other act or omission for which liability may not be excluded or limited by law.
10.2 Subject to clause 10.1, neither party shall be liable for any indirect or consequential losses.
10.3 Subject to clause 10.1, Creditsafe shall not be liable for any loss of profit, earnings, business, business opportunity, goodwill, anticipated savings, or loss of or corruption of data (whether direct or indirect).
10.4 Subject to the foregoing provisions of this clause 10, Creditsafe’s total liability arising under or in connection with this Agreement, whether in tort (including negligence or breach of statutory duty), contract, or otherwise, shall be limited to the amount of Service Charges received by Creditsafe in the 12 months preceding the relevant cause(s) of action.
10.5 The Customer acknowledges and agrees that its breach of the Service licensing rights and restrictions in this Agreement may cause significant harm to Creditsafe’s business. Accordingly, the Customer agrees to indemnify and keep indemnified Creditsafe and members of its Group from any actions, claims, losses, damages, costs (including legal and professional expenses) and liabilities arising from or relating to any third party claim made against Creditsafe in connection with the Customer’s use of the Services in breach of this Agreement (including the Supplementary Terms).
11.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information, except as permitted by clause 11.2.
11.2 Each party may disclose the other party´s Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party´s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 11; and
(b) as may be required by law, court order or any governmental or regulatory authority.
11.3 Neither party shall use the other party's Confidential Information for any purpose other than to perform its obligations under this Agreement.
12. Expiry, renewal and termination
12.1 Creditsafe shall be entitled to terminate this Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any undisputed amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the Customer commits a material breach of its other obligations under this Agreement and (if remediable) fails to remedy that breach within 14 days of receipt of notice requiring it to do so;
(c) the Customer is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
12.2 Where Creditsafe is entitled to terminate this Agreement, it may (in its sole discretion) as an alternative suspend the Customer’s access to the Services until it (acting reasonably and without undue delay) decides to reinstate access or terminate the Agreement.
12.3 Termination of this Agreement shall not prejudice any of the parties' rights and remedies that have accrued as at termination.
12.4 On expiry or termination of this Agreement for whatever reason, the Customer shall pay all outstanding invoices and shall be liable to pay for any Services received which have not yet been invoiced. All licences and rights granted to the Customer shall immediately cease and the Customer shall not be entitled to access the Services or make any further use of the Deliverables. Each party shall return or destroy (at the other party’s option) all documentation, materials and Confidential Information belonging to the other.
12.5 On expiry or termination of this Agreement, the following clauses shall continue in full force and effect: clauses 8, 9, 10, 11, 12, and 13.11.
13.1 3D Ledger Service. In the event that the Customer receives Creditsafe’s interactive risk management tool, “3D Ledger”, the Customer will provide Creditsafe with payment data relating to its debtors ledger and hereby grants Creditsafe a non-exclusive, non-transferable, perpetual licence to use all such data in its products and services. The Customer acknowledges and agrees that it is responsible for obtaining the informed consent of any individuals whose personal data is provided to Creditsafe in connection with 3D Ledger.
13.2 International credit reports. Credit reports and other data relating to companies and businesses outside of the United Kingdom are subject to availability and may take longer than the standard delivery time for credit reports. The countries from which reports are available, and the means by which reports are available, may vary from time to time.
13.3 Media solutions. The Services may enable you to view and access content provided by third party media sources. Creditsafe is not responsible for the quality or availability of the content produced by the media sources and may remove any such content from the Services at its sole discretion. Creditsafe is not liable for Customer’s use or misuse of the Media Solutions service or content from third parties. Where access to media websites requires payment the Customer will be responsible for paying the same.
13.4 Land registry data. Where applicable, property ownership information made available via the Service is for internal non-commercial use only and is otherwise subject to the licensing restrictions in this Agreement. The Customer may not copy, sell, distribute, send or make use of the information for any purpose other than as stated above and must not use the Land Registry Title Number or permit it to be used in any way that causes Land Registry’s systems or access to those to be interrupted, damages or impaired in any way. The information is licensed ‘as is’ and Creditsafe excludes all representations, warranties, obligations and liabilities in relation to the information to the maximum extent permitted by law. Creditsafe does not guarantee the continued supply of the information, which is subject to termination by Land Registry at any time. Creditsafe shall endeavour to provide reasonable prior notice of any withdrawal of the information.
13.5 Assignment. The Customer may not assign or otherwise transfer any of its rights, benefits or obligations under this Agreement without the prior written consent of Creditsafe.
13.6 Force majeure. A party shall not be in breach of this Agreement, nor liable for any failure or delay in performance of any obligations under this Agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control.
13.7 Severance. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.8 Variation and waiver. Creditsafe may vary these terms and conditions from time to time to reflect changes to its Services and shall provide notification of any such variation on the Website, via email or via the Services (as appropriate). Any waiver of any right under this Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure to exercise or delay in exercising any right or remedy provided under this Agreement or by law constitutes a waiver of such right or remedy nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.
13.9 Entire agreement. This Agreement constitutes the whole agreement and understanding of the parties and supersedes any previous understanding or agreement between them relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.
13.10 Rights of third parties. No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
13.11 Governing law and jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.