Terms & Conditions

1. INTERPRETATION

In these Conditions the following words shall have the following meanings:-

"Commencement Date" in respect of any Contract, the date upon which the Contract is formed in accordance with clause 3;

"Conditions" the standard Terms and Conditions of subscription and use set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Subscriber and the Supplier;

"Contract" the contract for the provision of the Services, of which these conditions form part;

"Electronic Media" computer readable media for use on a computer or the internet;

"Intellectual Property Rights" (i) patents, registered trade marks, registered designs, applications and rights to apply for any of those rights; (ii) unregistered trade marks, copyrights (including, where applicable, applications and rights to apply for registration of copyright and rights in computer software), topography rights, database rights, moral rights, know-how rights in designs and inventions; (iii) trade, business and company names, Internet domain names and e-mail addresses; (iv) the goodwill attaching to any of the aforementioned rights; and (v) any forms of protection of a similar nature and having equivalent or similar effect;

"Order Form" the Subscriber's request to the Supplier to supply the Services, which shall be on the Supplier's standard form, and is subject to acceptance by the Supplier;

"Parties" the Supplier and the Subscriber;

"Reports" the reports provided by the Supplier to the Subscriber as part of the Services;

"Services" the services described in the Order Form;

"Subscription Fee" the amount payable by the Subscriber in respect of the Services as quoted by the Supplier on the day upon which the Subscriber's Order Form is accepted and as subsequently varied in accordance with these Conditions;

"Subscriber" the person, firm or company who contracts for the Services in accordance with these Conditions as indicated in the Order Form;

"Supplier" Trader Publishing Limited whose registered office is at Unit 6 Thatcham Business Village, Colthrop Lane, Thatcham, Berkshire, RG19 4LW;

2. TERMS OF THE CONTRACT

2.1 These Conditions shall apply to all Contracts for the provision of the Services by the Supplier to the Subscriber to the exclusion of all other terms and conditions or representations including any terms and conditions or representations which the Subscriber may purport to apply under any purchase Order Form, confirmation Order Form or similar document.

2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Supplier and the Subscriber.

2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, Subscription Fee list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

3. ACCEPTANCE OF ORDER FORMS

3.1 A Contract shall exist between the parties upon the Supplier signing and confirming acceptance of the Subscriber's Order Form and accordingly each Order Form when accepted in accordance with these Conditions constitutes a separate Contract between the parties.

3.2 The Supplier may perform credit checks on the Subscriber before an Order Form is confirmed and the Subscriber hereby consents to such checks being undertaken. The Supplier shall not disclose any information obtained by the credit check to any other party except to the extent that the Supplier is required or permitted to do so by law.

4. SUBSCRIPTION FEE AND PAYMENT

4.1 In consideration of the supply of the Services, the Subscriber will pay the Subscription Fee to the Supplier.

4.2 The Subscription Fee is quoted in pounds sterling exclusive of VAT and any other tax or duty payable by the Subscriber, carriage and delivery costs.

4.3 The Supplier shall not be bound to deliver the Services until the Subscriber has paid all outstanding sums in respect of them.

4.4 The Subscription Fee is payable as specified in the Order Form. Changes in the Subscription Fee will be notified in writing, at least 30 days before becoming effective.

4.5 The Supplier reserves the right to charge the Subscriber interest, administration and bank charges in respect of late payment, dishonoured cheques, direct debit cancellation and any other non-payment of any part of the Subscription Fee due under any contract (before, as well as after, judgement) at the rate of 4% p.a. above the base rate from time to time of the Bank of Scotland Plc from the due date therefor until payment.

5. DELIVERY

5.1 Any dates quoted for delivery of the Services are approximate only and the Supplier shall not be liable for any delay in delivery of the Services howsoever caused. Time for delivery shall not be of the essence

5.2 Where the Services are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Subscriber in respect of any one or more instalments shall not entitle the Subscriber to treat the Contract as a whole as repudiated.

6. INTELLECTUAL PROPERTY RIGHTS

Except for the licence granted to a Subscriber pursuant to clause 8.4 all Intellectual Property Rights in the Services, the Reports and any other items supplied pursuant to the Contract will remain the property of the Supplier or its suppliers, licensors or sub-contractors.

7. CONFIDENTIALITY

7.1 The Subscriber shall:

• 7.1.1 keep the results of the Services, including the Reports, confidential and limit access to them to those of its employees, agents and sub-contractors who have a need to know. Under no circumstances shall information contained in the Services, including the Reports, be made available to any member of the general public or any other third party;
• 7.1.2 notify the Supplier immediately if it becomes aware of any unauthorised use or access to the whole or any part of the Services by any third party;
• 7.1.3 at the request and at the expense of the Supplier take all such steps as shall from time to time be necessary to protect the confidential information or Intellectual Property Rights of the Supplier in the Services;
• 7.1.4 inform all relevant employees, agents and sub-contractors that the Services, including the Reports, constitute confidential information of the Supplier and that all Intellectual Property Rights therein are the property of the Supplier or duly licensed to the Supplier, and the Subscriber shall take all such steps as will be necessary as to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 7.

8. SUBSCRIBER RIGHTS AND OBLIGATIONS

8.1 Except as expressly permitted below the Subscriber shall not copy any aspect of the Services, including the Reports, or extract or re-utilise any of the contents of them, or create any derivative works based in whole or part on them.

8.2 The Subscriber shall not assign, transfer, lease, rent, charge or otherwise deal with the Services, or use them on behalf of any third party, or make them available to any third party, or use them to provide information bureau services.

8.3 The Subscriber shall not use the Services other than for its own internal business purposes nor other than as expressly permitted under these Conditions.

8.4 The Supplier grants to the Subscriber a non-exclusive non-transferable licence to use the Services and associated instruction manuals and guides for the duration of the Contract;

8.5 All copies of all Reports must reproduce the proprietary notices appearing on the original;

8.6 Except for those aspects of the Services which permit the user to alter certain parameters in the course of their use the Subscriber shall not modify the information contained in the Services, including Reports; and

8.7 The Subscriber shall not reverse engineer or de-compile any aspect of the Services except to the extent necessary to obtain interface information for the interoperability of any physically software delivered to the Subscriber as part of the Services to the extent that such information is not available from the Supplier;

8.8 The Subscriber shall ensure that the Services are used as contemplated in the accompanying user documentation;

8.9 The Subscriber shall ensure that adequate procedures are in place in accordance with best computing practice with regard to data security, anti-virus and firewall protection, and back-up.

9. SUPPORT SERVICES

9.1 Subject to compliance by the Subscriber with its responsibilities as specified in clause 9.2, the Supplier shall throughout the term of this Contract:-

• 9.1.1 use its reasonable endeavours to correct faults in the services notified to it by the Subscriber (but not to recover or reconstruct the Subscriber's own computer records corrupted or lost as a result of such faults);
• 9.1.2 provide the Subscriber with telephone help line assistance during normal working hours, Monday to Friday, except public and bank holidays;

9.2 The Subscriber shall:-

• 9.2.1 notify each fault to the Supplier as it arises and provide the Supplier with a documented example of such fault;
• 9.2.2 co-operate fully with the Supplier in diagnosing any fault;
• 9.2.3 not request, permit or authorise anyone other than the Supplier to provide any support in relation to the Services.

9.3 The Services do not include:-

• 9.3.1 support or maintenance of software not supplied by the Supplier as part of the the Services;
• 9.3.2 diagnosis and/or rectification of any fault resulting from:-
  • (i) the improper use operation or neglect of the the Services;
  • (ii) the failure by the Subscriber to implement recommendations in respect of or solutions to faults previously advised by the Supplier;
  • (iii) any repair, adjustment, alteration or modification of any aspect of the Services by any person other than the Supplier without the Supplier's prior consent; or
  • (iv) loss or damage caused directly or indirectly by operator error or omission. Any service which is provided by the Supplier as a result of any of the foregoing shall be charged extra at the Supplier's standard rates from time to time in force.

10. WARRANTIES AND INDEMNITY

10.1 The Supplier warrants and represents that the Services do not infringe any Intellectual Property Rights of any third party in the United Kingdom. Subject to the limitations on its liability in clause 11, the Supplier agrees to indemnify and hold the Subscriber harmless from and against any damages awarded or agreed to be paid to any third party arising out of the Supplier's breach of the foregoing representation and warranty, provided that:

• 10.1.1 the Subscriber gives notice to the Supplier of any such claim forthwith upon becoming aware of the same; and
• 10.1.2 the Subscriber gives the Supplier the sole conduct of the defence to any such claim and gives to the Supplier such assistance as it shall reasonably require (at the expense of the Supplier) in respect of the conduct of the said defence.
• 10.1.3 In the event of such a breach, the Supplier may, at its expense, procure for the Subscriber the right to continue exercising the rights granted hereunder with respect to the Services or replace or modify the Services at the Supplier's sole expense to make the Subscriber's exercise of its rights under these Conditions non-infringing.

10.2 The Supplier warrants that:-

• 10.2.1 the Services have been compiled using reasonable skill and care in accordance with good industry practice. The Subscriber acknowledges that in estimating present and in forecasting future values, or in providing any other information, the Supplier will use all reasonable skill and care but that the Supplier does not warrant the accuracy of any particular values which shall be treated as guides only;
• 10.2.2 it will during the term of the Contract use all reasonable endeavours to correct any errors notified to it in the Services reasonably promptly;
• 10.2.3 the Services shall be supplied using reasonable skill and care in accordance with good industry practice.

10.3 The warranties and obligations contained in clauses 10.1 and 10.2 are subject to:-

• 10.3.1 the Supplier being notified in writing within 5 days of the Subscriber first discovering any such possible breach; and
• 10.3.2 the Subscriber using Services in accordance with the accompanying operating instructions.

10.4 The Supplier gives no warranty as to the accuracy or freedom from defects of information or software supplied by third parties and incorporated by the Supplier into the Services.

10.5 The warranties set out in these Conditions are exclusive of and in lieu of all other warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise which relate to the Contract or the Services.

11. LIMITATION OF LIABILITY

11.1 This clause 11 applies to the Supplier's liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Subscriber in respect of any breach of its contractual obligations arising under these Conditions or under any Contract and any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions or under any Contract AND THE SUBSCRIBER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 11.

11.2 The Supplier's liability to the Subscriber for death or injury resulting from its own negligence or that of its employees, shall not be limited.

11.3 Subject to the provisions of clause 11.2, the Supplier's entire liability shall be limited to damages of an amount equal to the aggregate of the Subscription Fee paid or due to be paid in respect of the year in which the liability arose or the unexpired portion of the Subscription Fee paid in advance, whichever is the greater.

11.4 Subject to clause 11.2, the Supplier shall not be liable to the Subscriber for loss of profits, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Subscriber as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Supplier had been advised of the possibility of the Subscriber incurring the same.

11.5 Notwithstanding clause 11.3 above, where any valid claim in respect of any aspect of the Services which is based on any defect in the quality or condition of the Services, including Reports, or their failure to correspond with their description is notified to the Supplier in accordance with these Conditions, the Supplier shall be entitled to reperform that aspect of the Services (free of charge) or, at the Supplier sole discretion, refund to the Subscriber the fee paid in respect of such defective Services or a proportionate part of the Subscription Fee but the Supplier shall then have no further liability to the Subscriber.

12. TERM AND TERMINATION

12.1 The Contract shall enter into force on the Commencement Date and subject as provided in clause 12.2 shall continue in force for a period of 13 weeks and shall continue in force for further periods of four weeks thereafter unless or until terminated by either party giving to the other not less than 28 days written notice (to be sent in accordance with clause 15 below) with effect from the end of the then-current period.

12.2 The Contract may be terminated by notice in writing:-

• 12.2.1 forthwith by the Supplier if the Subscriber fails to pay any sums payable under the Contract within 30 days of the due date;
• 12.2.2 forthwith by either party if the other commits any material breach of any term of the Contract (other than one falling within clause 12.2.1) and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same;
• 12.2.3 forthwith by either Party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrator or administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration Order Form (otherwise than for the purpose of an amalgamation or reconstruction).

12.3 Any termination of the Contract shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination, which shall include without limitation clause 7, which shall survive termination of the Contract by either Party.

12.4 Within 7 days of the termination of the Contract the Subscriber shall in the case of any aspect of the Services provided by the Supplier for use with computer equipment, at the Supplier's sole option, either return or destroy all copies of such items in its possession or control and a duly authorised officer of the Subscriber shall certify in writing to the Supplier that the Subscriber has complied with this obligation.

12.5 For the avoidance of doubt, any purported termination of the Contract by the Subscriber (other than a termination in accordance with the provisions of clause 12.2.2 or clause 12.2.3) shall not entitle the Subscriber to a refund of any Subscription Fee paid in respect of the then current period.

13. FORCE MAJEURE

Neither Party shall be liable for any loss or damage caused by delay in the performance or non-performance of any of its obligations under these Conditions where the same is occasioned by any cause whatsoever that is beyond the reasonable control of that Party. Should any such event occur the party in default shall forthwith give notice to the other detailing the circumstances. Such causes shall include natural disasters, acts of terrorism, war, civil unrest, acts of government, severe weather and failure of third party telecommunications networks.

14. ASSIGNMENT

The Subscriber shall not without the prior written consent of the Supplier assign, sub-licence or otherwise transfer the Contract nor all or any of its rights and obligations under the Contract.

15. NOTICE

Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing (which shall not include e-mail) addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice, and shall be sent by registered post.

16. WAIVER

No waiver by the Supplier of any breach of the Contract by the Subscriber shall be considered as a waiver of any subsequent breach in the same or any other provision.

17. SEVERANCE

If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be effected thereby.

18. CHANGES TO THE CONDITIONS

The Supplier reserves the right to revise these Conditions from time to time. The Supplier will give the Subscriber a minimum of 30 days notice of the revised Conditions which will apply to the ongoing provision of the Services with effect from the expiry of such notice period.

19. LAW

The Contract shall be governed by and shall be read and construed in all respects in accordance with English law and each of the Parties hereto submits to the non-exclusive jurisdiction of the English courts.

Registered office: Trader Media Group, Unit 6 Thatcham Business Village, Colthrop Lane, Thatcham, Berkshire RG19 4LW. Registered in England with company number 4768840.

VAT number: 6148 918 20