Agreement
1.1. This is an Agreement between the Customer and Creditsafe Business Solutions Limited (“Creditsafe”) a company incorporated in England and Wales under registered number 3836192 at the registered address Bryn House, Caerphilly Business Park, Van Road, Caerphilly, CF38 3GG.
1.2. The Creditsafe Service (“Service”) purchased by the Customer will consist of products detailed in the Order Confirmation and may include the following:
1.2.1. Creditsafe Company Reports (which provides information on and assessment of the creditworthiness of third parties via the internet) and/or
1.2.2. Provision of marketing and prospecting data via the internet and/or
1.2.3. Services provided in conjunction with third parties (including provision of Consumer Credit Reports, Trace and ID Solutions and Debt Recovery Solutions) which may be subject to additional terms.
1.3. This Agreement consists of the Order Confirmation and the Terms and Conditions and constitutes the entire agreement between the Customer and Creditsafe in relation to the Service.
1.4. By signing the Order Confirmation, or by accessing or using the Service, the Customer accepts the content of this Agreement. Unless otherwise stated in the Terms and Conditions, where the terms of the Order Confirmation conflict with the Terms and Conditions, the Terms and Conditions shall take precedence.
FOR TRIAL CUSTOMERS ONLY
1.5. Creditsafe’s website at www.creditsafe.com (as amended from time to time) may give the Customer the opportunity to request:
1.5.1. a free credit report in relation to a nominated business;
1.5.2. a free demonstration of Creditsafe’s standard website service; and/or
1.5.3. a time-limited trial to access Creditsafe’s standard website service or API,
(collectively, the “Trial”). The free credit report and/or any other content and materials accessed by the Customer or provided to it pursuant to the Trial shall be referred to as the “Trial Content”.
1.6. Clauses 1.5 to 1.12 shall apply to Customers who request a Trial only.
1.7. By submitting a request, the Customer warrants that it is a business customer and agrees to be bound by this Agreement. Where an individual submits a request on behalf of a Customer, he/she warrants that he/she has authority to bind the Customer to this Agreement.
1.8. By electronically accepting these terms and conditions or by accessing or using the Trial Content, the Customer requesting the Trial accepts the content of this Agreement and is entering into a legally binding agreement with Creditsafe for the provision of a Trial.
1.9. These terms and conditions shall constitute the entire agreement between the parties in relation to the Trial and/ or Trial Content and shall apply to the exclusion of any other terms, including any terms that the Customer may seek to impose.
1.10. Clauses 1.2, 1.3, 1.4, 3, 5.7, 5.8, 7.1.1, 12 and 13 of this Agreement shall not apply to Customers who request a Trial.
1.11. Save for the clauses that do not apply to Customers requesting a Trial (which are listed in Clause 1.10), any reference to the “Service” in this Agreement shall be read as though referring to the Trial and/ or Trial Content (as applicable) for those Customers who request a Trial only.
1.12. Subject to clause 7.1, where the Customer is given access to Creditsafe’s services or the Trial Content through the Trial, it shall be limited to a fixed period of three (3) months, after which the Customer’s access shall terminate.
2. Agreement
2.1. This Agreement shall be in force from the date inserted on the Order Confirmation and continue for a period of 12 months unless otherwise stated in the Order Confirmation or if the Customer is a Customer requesting a Trial.
2.2. The Customer may be contacted during this Agreement period regarding new developments and products.
2.3. From time to time Creditsafe may, from time to time, at its absolute discretion, make and/or apply updates, alterations, modifications and adaptations to the Service or any element of the Service (“Alterations”). Creditsafe will take reasonable steps to inform the Customer of these Alterations with as much advance warning as possible.
2.4. Creditsafe does not warrant that the Customer’s use of the Service will be uninterrupted or error-free and is not responsible for any, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the
Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Creditsafe shall have no liability (on any account whatsoever) to the Customer as a result of or related to such events.
2.5. This Agreement entitles the Customer to access and retain the Service for the purposes detailed in this Agreement and for the duration of the Agreement only. The rights to access and use the Service 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. Charges and Payment
3.1. In consideration of Creditsafe providing the Service, the Customer agrees to pay the sum specified in the Order Confirmation and or the invoice issued therewith (“the Invoice”) on the times and dates specified therein. For the avoidance of doubt, all payments must be made within 21 days of the invoice date unless otherwise stated in the Order Confirmation or where the parties have agreed that payment shall be made by direct debit.
3.2. Subject to clause 3.7, if you fail to pay the amount specified on the Order Confirmation and or invoice on the times and dates agreed the full amount will become due with immediate effect.
3.3. In the event that the Service is suspended in accordance with clause7, then Creditsafe shall be under no obligation to:
3.3.1. Re-instate the Service and/or:
3.3.2. Recompense the Customer in respect of any period of suspension from the time of payment default to receipt of payment.
3.4. If the Customer fails to pay Creditsafe any sum due pursuant to the Agreement, the Customer shall be liable to pay interest to Creditsafe on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Plc, accruing on a daily basis until payment is made, whether before or after any judgment.
3.5. Creditsafe reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
3.6. The Customer agrees to fully indemnify Creditsafe against all third party costs incurred in the pursuit of payment.
3.7. Without prejudice to the generality of the foregoing provisions of this clause 3, where the Customer and Creditsafe agree that the Customer shall pay the amount specified in the Order Confirmation by direct debit then:
3.7.1. Creditsafe will use reasonable endeavours to contact the Customer by telephone to complete the direct debit mandate (which shall for the avoidance of doubt include the Customer providing its bank details and authorisation to any direct debit payments).
3.7.2. Where the Customer and Creditsafe are unable to complete the direct debit payment mandate within two working days of the date of the Invoice (“the Invoice Date”), then payment of the full amount of the sum specified in the Order Confirmation will become due within 21 days of the Invoice Date. In the event that the Customer fails to pay the sum due within the aforementioned 21 days, the full amount will become due with immediate effect and clauses 3.3 to 3.6 of this Agreement shall apply in full force and effect.
3.7.3. Where Creditsafe attempts to take a payment by direct debit and the payment fails for whatever reason, payment for the full amount of the sum specified in the Order Confirmation will become due immediately and clauses 3.3 to 3.6 of this Agreement shall apply. The Customer accepts that it shall be liable for any bank charges incurred by Creditsafe as a result of a failure of a direct debit attempt.
3.7.4. For the avoidance of doubt the provisions of this clause 3.7 shall only apply to Customers paying by direct debit.
3.8. The Customer acknowledges and agrees that:
3.8.1. 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
3.8.2. any failure by the Customer to pay Creditsafe’s invoices on time may have an adverse impact on the Customer’s credit rating.
3.9. Additional Services: The Customer may request, and Creditsafe may agree (at its absolute discretion) to provide (at an extra charge) additional (i) Creditsafe services; and/or (ii) reports beyond the usage limits set out in the Order Confirmation ("Additional Services").
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Creditsafe shall be entitled to invoice the charges for any Additional Services at any time after placement of the Customer's order for the Additional Services, and invoices shall be payable (without deduction or set-off) within 21 days of the invoice date, unless otherwise agreed with Creditsafe.
4. Creditsafe‘s Proprietary Rights
In this clause 4 the term “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
4.1. Except as expressly provided herein access to the Service does not grant the Customer any database rights or rights in the copyright, trademarks or any other Intellectual Property Rights of Creditsafe or any third party.
4.2 The Service is protected by Intellectual Property Rights. All Intellectual Property Rights in or arising out of or in connection with the Service shall be owned by Creditsafe or, where relevant, its third party subcontractors or the third party providers.
4.3 The Customer is not permitted and will not allow any third party to adapt, alter, modify, reverse engineer, de-compile or otherwise interfere with any element of the Service without Creditsafe’s written permission. Creditsafe may take steps to assist identification of its Service.
4.4 Data protection
4.4.1 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 all data protection and privacy legislation and regulatory requirements in force from time to time which apply to a party including (to the extent applicable) (i) the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (“UK GDPR”) (ii) the Data Protection Act 2018; (iii) the General Data Protection Regulation ((EU) 2016/679) ("EU GDPR"); and (iv) any successor legislation to any of the foregoing, together with and any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by the Information Commissioner's Office or such other supervisory authority as may be responsible for enforcing compliance with the Data Protection Legislation from time to time.
4.4.2 This clause sets out the framework for the sharing of personal data between the parties as independent data controllers.
4.4.3 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.
4.4.4 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.
4.4.5 The Customer agrees that it shall only access and use the Services for the purpose of credit checking, prospecting, direct marketing, know your customer checks, compliance, data verification and enhancement, debtor trace and other lawful business due diligence purposes.
4.4.6 The Customer acknowledges that it is its duty to record and demonstrate the existence of its lawful basis for processing.
4.4.7 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 for processing that data.
4.4.8 Where the Customer provides Creditsafe with data or information which includes personal data to enable Creditsafe to provide the Service, the Customer warrants that it has a lawful basis for doing so and that it has complied with the transparency requirements set out in Articles 13 and 14 of the UK GDPR and EU GDPR as applicable.
4.4.9 The parties acknowledge that the personal data provided or made available by Creditsafe to the Customer under this Agreement may contain personal data received from within the European Economic Area ("EEA") and that, with effect from 1 January 2021, the United Kingdom will constitute a third country for the purposes of the UK GDPR and EU GDPR such that transfers of personal data from within the EEA to the United Kingdom will be subject to additional restrictions and requirements under the UK GDPR and EU GDPR. As such, unless and until the European Commission approves the United Kingdom as providing adequate protection pursuant to Article 45 of the UK GDPR and EU GDPR ("UK Adequacy Decision"), the parties acknowledge and agree that the European Commission's Standard Contractual Clauses for the transfer of personal data from the European Union to controllers established in third countries (controller-to-controller transfers), as set out in the Annex to Commission Decision 2004/915/EC, a completed copy of which is available at http://www.creditsafe.com/content/dam/uk/pdfs/terms-legal/Creditsafe-standard-contractual-clauses.pdf ("SCC"), shall apply as between the data exporter based within the EEA and Creditsafe. Accordingly, in order for the Customer to lawfully receive and use such personal data under this Agreement from 1 January 2021, the Customer hereby agrees to be bound by and to comply with the provisions of the SCC as if it were a data importer. For the avoidance of doubt, this clause 4.4.9 shall cease to apply in the event that a valid UK Adequacy Decision is made.
4.4.10 In the case of a conflict or ambiguity between any of the provisions of this Agreement and the SCC, the provisions of the SCC will prevail.
4.4.11 The parties agree that if:
(a) the Data Protection Legislation changes in such a way that Creditsafe considers that the provisions of this Clause 4.4 (including the SCC) are no longer adequate for the purposes of governing lawful data sharing exercises (including, for the avoidance of doubt, any subsequent changes made to the Data Protection Legislation and/or the SCC as a result of the United Kingdom ceasing to be a member state of the European Union at the end of the transition period); and/or
(b) the SCC are amended, replaced and/or superseded by any new standard contractual clauses approved by a competent authority,
then Creditsafe may adapt, update or replace the terms of this Clause 4.4 (including the SCC) as it considers reasonably necessary in light of such changes.4.4.12In the case of a conflict or ambiguity between any of the provisions of this Agreement and the SCC, the provisions of the SCC will prevail.
4.4.13 In the event that the European Commission approves new standard contractual clauses, Creditsafe reserves the right to replace the SCC with any such new standard contractual clauses.
5. Customer Obligations and Conduct
5.1 The Customer shall:
5.1.1. provide Creditsafe with any information or assistance which the parties have agreed the Customer shall provide in order for Creditsafe to perform its obligations under this Agreement, and shall use all reasonable endeavors to ensure that any such information provided to Creditsafe is complete, accurate and in the agreed format
5.1.2. not to do anything to harm Creditsafe’s reputation
5.1.3. abide by all laws & regulations applicable to its use of the Service and the data contained therein, including full compliance with all aspects of Data Protection Legislation
5.1.4. not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means. You will not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services. You will not access all or any part of the Services in order to build a product or service which competes with the Services nor will you use the Services to provide services to third parties. Use of any automated system or software to extract data from the Site, the Application or the Services (“screen scraping”) is expressly prohibited.
5.2. The Service made available to the Customer is a non transferable license and is provided solely for the Customer’s own internal use within the United Kingdom and the Republic of Ireland. The Customer may not sell, transfer sublicense, distribute, commercially exploit or otherwise make available to, or use for the benefit of any third party, any of the Service. The Customer may not include the Service in any product or service which the Customer sells.
5.3. During this Agreement the Customer agrees not to attempt to gain unauthorised access to the Service or modify the same.
5.4. The Customer shall only take such copies of the Service as are reasonably required for the use of the Service in accordance with this Agreement.
5.5. The Customer agrees to be responsible for maintaining the confidentiality of its password and account details.
5.6. Unless otherwise detailed within your Order Confirmation, the use of the Service provided under the terms of this agreement is limited to one designated user any may not be used by any other person other than the designated user. The use of the Service by more than one individual, either simultaneously or otherwise will require the provision of additional licenses.
5.7. 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
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investigation activities. The Consumer Service is also subject to Supplementary Terms and the Customer agrees to comply with such terms.
5.8. 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 Data Protection Legislation 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.
6. Warranties and Limitation of Liability
6.1. The Creditsafe Service is not intended to be used as the sole basis for any decision making and is based upon data which is provided by third parties, the accuracy of which it would not be possible for Creditsafe to guarantee. Whilst Creditsafe aims always to maintain a quality, fully operative service, the Service and third party services are nonetheless provided on an "as is", as available basis without warranties of any kind, whether express or implied.
6.2. Specifically Creditsafe gives the Customer no warranty or assurance about the contents of the Service. Whilst Creditsafe does endeavour to maintain the accuracy and the quality of the Service, information contained may be incorrect or out of date. Therefore any use of the Service is at the Customer’s own risk.
6.3. Subject to clause 6.5 Creditsafe shall not be liable for any indirect or consequential loss. Creditsafe shall not be liable for the following types of financial loss (whether direct or indirect); loss of profits, loss of earnings, loss of business or goodwill in addition to the following types of anticipated or incidental losses; loss of anticipated savings, increase in bad debt and failure to reduce bad debt.
6.4. Where any matter gives rise to a valid claim against Creditsafe its liability shall be limited to a sum equal to the sum paid for the Service supplied under this Agreement in the year the claim arises.
6.5. Nothing in this clause 6 or any other provision of this Agreement shall seek to exclude or limit liability for death or personal injury caused by negligence, or for breach of its obligation under s12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982, fraud or fraudulent misrepresentation or any other liability that cannot be lawfully excluded or limited.
6.6. Each party to this Agreement warrants that it has obtained and will continue to hold all necessary licenses, consents, permits and agreements required for it to comply with its obligations under this Agreement and for the grant of rights to the other party under this Agreement.
7. Termination
7.1. Creditsafe shall be entitled to terminate this Agreement with immediate effect by giving written notice to the Customer if:
7.1.1. 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
7.1.2. 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;
7.1.3. 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.
7.2. Notwithstanding its right to terminate the Agreement, where Creditsafe reasonably believes the Customer has breached any provision of this Agreement Creditsafe may, with immediate effect and without notice, suspend access to the Service.
7.3. Upon termination or expiration of this Agreement:
7.3.1. all rights and licences granted under this Agreement, including the right to access and use the Service, shall immediately terminate;
7.3.2. the Customer must delete all and any part of the Service (including any data or reports obtained via the Service) held by the Customer in any format and the Customer may not make any further use of the Service (or the data obtained from use of the Service);
7.3.3. the Customer shall immediately pay to Creditsafe all of Creditsafe’s outstanding and unpaid invoices;
7.3.4. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry; and
7.3.5. clauses 3, 4, 5, 6, 7, 8, and 11 shall continue with full force and effect.
8. Indemnity
8.1. The Customer agrees to indemnify, defend and hold Creditsafe, its parents, subsidiaries, affiliates, officers and employees harmless from any loss, cost, damage, claim or demand, including reasonable legal fees, made by any third party or incurred or suffered by Creditsafe or its parents, subsidiaries, affiliates, officers or employees in connection with the Customer’s breach of this Agreement.
9. Assignment
9.1. Creditsafe may assign the benefit of this Agreement.
10. Force Majeure
10.1. Creditsafe will not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency or circumstances beyond the reasonable control of Creditsafe, including without limitation Internet outages, communications outages, fire, flood war or act of God.
11. Confidentiality
In this clause 11 the term “Confidential Information” means 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, employees, suppliers, software, products, know-how, processes and business intentions;
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:
11.2.1. 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;
11.2.2. And as may be required by law, court order or any governmental or regulatory authority.
11.3. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
12. Ledger 3D
12.1. In the event that the Company receives the Service via Creditsafe’s interactive risk management tool, “3D Ledger”, the Customer shall provide Creditsafe with information relating to its debtors ledger (“the “Payment Data”).
12.2. The Company hereby grants Creditsafe a non-exclusive, non-transferable, irrevocable, perpetual licence to include the Payment Data in products and services that Creditsafe will make available to its customers.
13. International Credit Reports
13.1. Company Credit Reports providing details of companies based outside the United Kingdom are provided on a subject to availability basis, and the countries from which reports are available may vary throughout the course of the term of this Agreement.
13.2. Company Credit Reports providing details of companies outside the United Kingdom are provided within the specific timeframes detailed at the Creditsafe website.
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14. Miscellaneous
14.1. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall remain enforceable.
14.2. Except for any rights of data subjects as set out in the SCC (to the extent applicable), the parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to this Agreement.
14.3. The terms of this Agreement and the provision of the Service and the relationship between the Customer and Creditsafe shall be governed by the laws of England and Wales. The Customer agrees irrevocably to submit to the exclusive jurisdiction of the courts of England and Wales.
14.4. The failure of Creditsafe to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such a right. The Service is subject to availability.
14.5. Should any third party data become unavailable to Creditsafe, Creditsafe shall be entitled to obtain a similar service from another third party supplier.
14.6. Creditsafe may unilaterally vary any term of this Agreement in order to comply with any legislation applicable to the provision of the Services.
15. Media Solutions
15.1 Creditsafe is not responsible for the quality or availability of the content produced by the media sources. Should any of the Media Solutions service and content be deemed to be infringing any law or right of a third party, Creditsafe has the right to remove the infringing material without obtaining the Customer’s consent. Creditsafe will be entitled to take all such steps that it considers to be necessary for the purpose of bringing an end to such infringement. Creditsafe is not liable for Customer’s negligence or misuse of the Media Solutions service or content from third parties. Where access to websites require payments the customer will be responsible for paying the same.