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1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees, customers, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.4.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.
Customer: the person, firm or company who purchases Services from the Supplier.
Customer Data: the data inputted by or behalf of the data subject Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services which shall include the data subject or private individual searched by the Customer or an Authorised User.
Data Subject: shall bear the meanings given to that term respectively in the Data Protection Act 1998.
Documentation: the documents made available to the Customer by the Supplier online via secure.contego.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date of this agreement.
End User Agreements: Agreements provided by third party data suppliers and where appropriate incorporated into the data and Service(s) provided by Contego. Appropriate End User Agreements will be provided in the Appendices and are deemed accepted on acceptance of these Terms of Business.
Fees: the Service Fees and Subscription Fees.
Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Privacy and Data Protection Requirements: all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction.
Service Fees: the fees payable by the Customer to the Supplier for the use of the software platform as agreed between the Parties.
Services: the subscription services provided by the Supplier to the Customer under this agreement via secure.contego.com or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as agreed between the Parties.
Subscription Term: twelve months unless otherwise agreed between the Parties.
Supplier: Contego Fraud Solutions Limited incorporated and registered in England and Wales with company number 7358038 whose registered office is at 30, Upper High Street, Thame, Oxfordshire, OX9 3EZ.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. USER SUBSCRIPTIONS
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
2.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
2.2.3 each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential;
2.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within  Business Days of the Supplier’s written request at any time or times;
2.2.5 it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
2.2.6 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
2.2.7 if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices notified to the Customer within  Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute, reproduce or transmit any Viruses, or any material during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall use the Services and the Documentation solely for the purpose of determining whether or not to proceed with a particular transaction and shall not use the Services or the Documentation:
2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) 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 and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.4.3 subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
2.4.4 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 Any security keys supplied by Contego for the purpose of accessing the Services shall be kept securely. Security keys remain the property of Contego.
2.7 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. ADDITIONAL USER SUBSCRIPTIONS
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request and the relevant fees for such additional User Subscriptions.
3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within  days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions.
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 5.30 pm to 9.00 am UK time; and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer notice in advance.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.
4.4 The Supplier does not give any warranty or assurance that the Services and its means of delivering them are compatible with the Customer’s software or computer configuration.
4.5 The Supplier may make non-material changes to part or all of any Service at its discretion.
5. CUSTOMER DATA
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Supplier shall make a weekly back up of Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
5.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
5.4.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement but shall remain within the European Economic Area.;
5.4.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier and its sub-contractors and suppliers may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf which shall include, but not be limited to, (i) sharing the personal data with law enforcement agencies for the purposes of providing the Services and assessing the effectiveness of the information supplied, for preventing, detecting and discovering crime, for the apprehension or prosecution of offenders, or for the recovery of stolen property (ii) sharing articles and alerts and information derived from checks conducted through the Supplier’s fraud prevention service and information derived from alerts with other users of the Supplier’s services and (iii) confirming the accuracy of the Customer Data against government issued identification;
5.4.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent, as required by all applicable data protection legislation, to such use, processing, and transfer as set out generally in this agreement and specifically in clause 5.4.2;
5.4.4 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5.5 The Customer consents to the Supplier using the Customer Data for the purposes of providing the Services, the purposes of clause 5.4.2 and for the purposes of complying with any legislation.
6. THIRD PARTY PROVIDERS
7. SUPPLIER'S OBLIGATIONS
7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
7.2.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
7.2.2 is not responsible for any delays, delivery failures, 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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 provide the Supplier with:
(a) all necessary co-operation in relation to this agreement; and
(b) all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities under this agreement;
8.1.3 carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
8.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
9. CHARGES AND PAYMENT
9.1 The Customer shall pay the Fees to the Supplier for the User Subscriptions and the use of the Software platform in accordance with this clause 9.
9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete contact and billing details and the Supplier shall invoice the Customer:
(a) on the Effective Date for the Subscription Fees payable in respect of the Subscription Term; and
(b) thereafter in respect of any further Fees the Supplier shall invoice the Customer in accordance with the schedule advised by the Supplier to the Customer from time to time;
and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
9.3.1 the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Lloyds Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this agreement:
9.4.1 shall be payable in pounds sterling;
9.4.2 are, subject to clause 13.4.2, non-cancellable and non-refundable;
9.4.3 are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
9.5 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon 90 days' prior notice to the Customer.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party's lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. If the Customer is required by law to disclose the information provided by Supplier, the Customer will promptly use reasonable endeavours to reach agreement with the Supplier on what information and in what form that information should be supplied prior to disclosing that information.
11.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer acknowledges that details of the Services, and the results of any of the Services, constitute the Supplier's Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 This clause 11 shall survive termination of this agreement, however arising.
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation (including but not limited to defamation claims by third parties).
12.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1 the Supplier is given prompt notice of any such claim;
12.2.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
12.2.3 the Supplier is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1 a modification of the Services or Documentation by anyone other than the Supplier; or
12.4.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
12.4.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing and clause 13.4.2 states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
13.1.1 arising under or in connection with this agreement;
13.1.2 in respect of any use made by the Customer of the Services and Documentation or any part of them; and
13.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
13.2 Except as expressly and specifically provided in this agreement:
13.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
13.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
13.2.3 the Services and the Documentation are provided to the Customer on an "as is" basis.
13.3 Nothing in this agreement excludes the liability of the Supplier:
13.3.1 for death or personal injury caused by the Supplier's negligence; or
13.3.2 for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and clause 13.3:
13.4.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
13.4.2 the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the lower of £10,000 and the total Fees paid during the 12 months immediately preceding the date on which the claim arose.
14.1 The Supplier is provider of information and resources which includes information provided by third parties. The Supplier shall use reasonable endeavours to maintain its information up to date and correct. However it does not undertake any obligation to consider whether the information provided to or by it for the purpose of the Services is correct, current or either sufficient or appropriate for any particular actual circumstances.
15. TERM AND TERMINATION
15.1 This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Subscription Term
15.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
15.2.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
15.2.2 the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;
15.2.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
15.2.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
15.2.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
15.2.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
15.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within  days;
15.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2.4 to clause 15.2.10 (inclusive);
15.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.3 On termination of this agreement for any reason:
15.3.1 all licences granted under this agreement shall immediately terminate;
15.3.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
15.3.3 the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
15.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
16. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision (or part of a 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.
21.2 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 whatever modification is necessary to give effect to the commercial intention of the parties.
22. ENTIRE AGREEMENT
22.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
22.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
24. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
27. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
(1) Tracesmart and Contego Fraud Solutions Ltd registered under company number 07358038 whose registered office is at 30 Upper High Street, Thame, Oxfordshire OX9 3EZ (“Reseller”) have entered into an agreement which grants the Reseller access to a web based identity verification system (“Tracesmart Reseller Agreement”).
(2) The End User wishes to have data comprised within the Tracesmart Reseller Agreement made available to it pursuant to an agreement entered into between the End User and the Reseller.
(3) Tracesmart and the End User have agreed to this subject to the provisions of this End User Agreement.
IT IS AGREED as follows:
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptance Date” the date on which the Tracesmart End User Agreement is agreed to by the End User and Tracesmart;
“Access” means access to Tracesmart’s System;
“CIFAS” means the UK fraud prevention service that shares data with eligible members of Closed User Group organisations for the purposes of the prevention, detection and identification of fraud-related crime;
Information” means the Tracesmart Data, the System and the provisions of this Agreement;
“Credit Active” means the additional Information Services available through Equifax incorporating the non-financial extracts of the Insight database for the purposes of denoting credit active status;
Agencies” means Crediva Limited, a credit reference agency registered under the Consumer Credit Act whose registered office is situated at Global Reach Dunleavy Drive Cardiff CF11 0SN and registered in England with registration number 6567484 and Equifax Limited, registered in England & Wales with company registration number 2425920, whose registered office is Capital House, 25 Chapel Street, London NW1 5DS;
“Data Providers” a third party provider of data to Tracesmart;
“Full Electoral Roll” the meaning given to “full register” under Regulation 93(1) of the Representation of the People (England & Wales) Regulations 2001 as subsequently amended and provided by Crediva;
Property Rights” all vested contingent and future intellectual property rights including but not limited to copyright, trademarks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created to which Tracesmart may be entitled;
“Subject” the private individual searched by the End User;
“System” the web based tracing and identity verification application and associated documentation of Tracesmart and Third Party Data Providers and all releases and versions thereof;
“Tracesmart Data” means the results obtained by the Reseller under the Tracesmart Reseller Agreement and resold to the End User.
2. Provision and Use of Tracesmart Data
2.1. The Reseller has been granted Access to the System in accordance with the terms of the Tracesmart Reseller Agreement in relation to the datasets set out in Schedule 1.
2.2. Unless otherwise agreed by Tracesmart in writing, the End User shall not Access the System or use any Tracesmart Data for any purpose other than as expressly permitted by the agreement between the End User and the Reseller nor adapt, alter or modify the Tracesmart Data, and without limiting the obligation the End User shall:
2.2.1. adhere strictly to the restrictions on the use of the System and Tracesmart Data as set out in the Fair Usage Policy in Schedule 2. Tracesmart reserves its right to suspend access to any End User who it suspects is attempting to abuse the Fair Usage Policy;
2.2.2. only use the Tracesmart Data in connection with a Subject the End User has a direct and existing contractual relationship with; and
2.2.3. the End User shall not licence or resell any Tracesmart Data.
2.3. The End User is prohibited from using the System and has no right to Access the System for any form of marketing purpose or activity.
2.4. The End User shall ensure that before completing a cardholder Card AVS Verification that the Subject has granted permission to process a pre-authorisation transaction totalling £1.00 and has been informed that that no funds will be debited from the account and no footprint of the transaction will appear on their statement. Where the Subject at any time withdraws this permission the End User shall ensure that no Card AVS Verification is undertaken in respect of that Subject until further permission is granted.
2.5. The End User shall not access or permit anyone to access the System from a country which is not within the European Economic Area, nor export or permit the export of any of the Tracesmart Data to a country which is not within the European Economic Area, without prior written consent from Tracesmart.
2.6. The End User shall not access or permit anyone to access the System in respect of Death Registration Information (“DRI”) from a country outside the UK, nor export or permit the export of Tracesmart Data comprising Death Registration Information (“DRI”) to a country outside the UK, without prior written consent from Tracesmart.
3.1. The End User’s contract for Access to the System and the Tracesmart Data is between the End User and the Reseller. Subject to clause 3.2 of this Agreement Tracesmart shall not have any liability to the End User arising out of or in respect of the Access to the System or the Tracesmart Data. Without prejudice to the foregoing, Tracesmart shall not have any liability to the End user for any indirect or consequential loss.
3.2. Nothing in this Agreement shall limit or exclude Tracesmart’s liability to the End User for death or personal injury caused by Tracesmart’s negligence.
4. Security and Control
4.1. The End User shall during the continuance of this Agreement:
4.1.1. comply with all legislation, regulations, and other rules having equivalent force which are applicable to the End User, including but not limited to the Data Protection Act 1998;
4.1.2. effect and maintain adequate security measures to safeguard the Access information, Access codes and Tracesmart Data from access or use by any unauthorised person;
4.1.3. maintain a full and accurate record of the End User’s use of the System and Tracesmart Data and shall produce such record to Tracesmart on request from time to time.
4.2. The End User shall ensure that before completing a cardholder Card AVS Verification that the Subject has granted permission to process a pre-authorisation transaction totalling £1.00 and has been informed that that no funds will be debited from the account and no footprint of the transaction will appear on their statement. Where the Subject at any time withdraws this permission the End User shall ensure that no Card AVS Verification is undertaken in respect of that Subject until further permission is granted.
4.3. The End User shall only be entitled to access the Full Electoral Roll for the specific purposes detailed in the Representation of the People Act 2001 and any regulations made there under (including without limitation, the Representation of the People (England and Wales) Regulations 2001) as amended from time to time.
4.4. The End User warrants that a request by it to access the Full Electoral Roll is made in accordance with the Representation of the People Act 2001 and any regulations made there under (including without limitation, the Representation of the People (England and Wales) Regulations 2001) as amended from time to time.
4.5. The End User warrants that where they are eligible to be granted access to CIFAS Services and they have entered into and will comply with applicable Closed User Group agreements.
4.6. The End User shall inform Tracesmart immediately should the End User’s entitlement to access the Full Electoral Roll change at any time, and Tracesmart shall instruct Crediva to cease to provide the Full Electoral Roll immediately on receipt of such notice.
4.7. The End User must inform the Subject that a Full Electoral Roll search is to take place but their permission is not required for anti money laundering purposes.
4.8. The End User shall notify the Subject that Credit Reference Agencies will place a “soft footprint” search on the electronic file of the Subject and their personal details may be accessed by third parties for the specific purpose of anti-money laundering, credit assessment, identity verification, debt collection, asset reunification, tracing and fraud prevention.
4.9. Tracesmart or its representative is entitled to audit the End User’s compliance with its obligations under this Agreement on reasonable notice.
4.10. During the course of any audit carried out by Tracesmart under clause 4.8 the End User shall make available one or more of its managers or senior officials with the appropriate level of expertise and authority to answer any reasonable enquiries of Tracesmart.
4.11. The End User shall provide Tracesmart with any information it reasonably requests in relation to the Tracesmart Data and/or to evidence the End User's compliance with this Agreement.
4.12. Tracesmart shall take all reasonable steps to minimise disruption to the End User’s business during such an audit.
5. Intellectual Property Rights
5.1. The End User acknowledges that the Tracesmart Data and the System and the Intellectual Property Rights of whatever nature in the Tracesmart Data and the System are and shall remain the property of Tracesmart or relevant Data Providers and furthermore the Intellectual Property Rights cannot be used or copied without prior written consent from Tracesmart and relevant Data Providers.
5.2. The End User undertakes not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the System or Tracesmart Data without the prior written consent of Tracesmart and/or Data Providers.
5.3. The End User shall notify Tracesmart immediately if the End User becomes aware of any unauthorised use of the whole or any part of the Tracesmart Data or the System by any person.
5.4. The End User shall notify Tracesmart within 7 business days in writing of any potential infringement claim or misuse of the Tracesmart Data or the System.
5.5. The End User shall not make any admission as to liability, agree or compromise to any claim of any infringement without the prior written consent of Tracesmart.
5.6. The End User will give Tracesmart and its Data Providers all reasonable assistance in relation to either defending an infringement claim or the prosecution of their rights.
6. Confidential Information
6.1. The End User undertakes, except as provided below, to keep the Confidential Information and all information which may reasonably be supposed to be confidential strictly with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of the End User prior to the Acceptance Date or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
6.2. The End User shall not without the prior written consent of Tracesmart divulge any part of the Confidential Information to any person except:
6.2.1. to their own employees and then only to those employees who need to know the same;
6.2.2. to the End User’s auditors, an officer of Inland Revenue, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right duty or obligation to know the business of the End User and then only in pursuance of such right duty or obligation.
6.3. The End User undertakes to ensure that persons and bodies referred to in clause 6.2 are made aware before the disclosure of any part of the confidential Information that the same is confidential and that they owe a duty of confidence to Tracesmart.
6.4. If the End User becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information the End User shall promptly notify Tracesmart and shall give Tracesmart all reasonable assistance in connection with any proceedings which Tracesmart may institute against such person for breach of confidence.
6.5. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement.
7.1. Tracesmart may terminate this Agreement:
7.1.1. at any time by giving at least 30 days prior written notice to the End User;
7.1.2. forthwith on giving notice in writing to the End User if the End User commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 28 days after the receipt of a request in writing from Tracesmart to do so, to remedy the breach (such request to contain a warning of Tracesmart’s intention to terminate).
7.2. This Agreement will automatically terminate once the Tracesmart Reseller Agreement or the agreement between the End User and the Reseller terminates or expires for any reason.
7.3. The Agreement may be terminated if:
7.3.1. any of the Parties appoint a receiver over any of its property or assets;
7.3.2. any of the Parties make a voluntary arrangement with their creditors or become subject to an administration order;
7.3.3. any of the Parties enter into liquidation (except for the purposes of restructuring or amalgamation);
7.3.4. any of the Parties cease to carry on business.
7.3.5. either Party is subject to a change of control (as defined in section 1124 of the Corporation Tax Act 2010).
7.4. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of the Parties nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
8.1. This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner by the End User except by an instrument in writing signed by a duly authorised officer or representative of Tracesmart.
9.1. The End User shall not issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from Tracesmart.
10.1. This Agreement is personal to the Parties and neither this Agreement nor any rights, licences or obligations under it, may be assigned by the End User without the prior written approval of Tracesmart. Tracesmart shall be entitled to assign this Agreement to any member of the Tracesmart group of companies upon written notice to the End User.
11. Entire Agreement
11.1. This Agreement supersedes all prior agreements, arrangements and undertakings between the Parties and constitutes the entire Agreement between the Parties relating to the subject matter of this Agreement.
12.1. Any notice or other information required or authorised by this Agreement to be given by either party to the other may be given by hand or sent (by first class pre-paid post or facsimile transmission) to the other party at the address referred to at the start of this Agreement.
12.2. Any notice or other information given by post under clause 12.1 which is not returned to the sender as undelivered shall be deemed to have been given on the seventh day after the envelope containing the same was so posted; and proof that the envelope containing any such notice or information was properly addressed, and sent by first class, pre-paid post and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.
12.3. Any notice or other information sent by facsimile transmission, email or comparable means of communication shall be deemed to have been duly sent on the date of transmission, provided that a confirming copy thereof is sent by first class pre-paid post to the other party at the address referred to in clause 12.1 within 24 hours after transmission.
12.4. Service of any legal proceedings concerning or arising out of this Agreement shall be effected by causing the same to be delivered by hand or by recorded delivery to the company secretary of the party to be served at its registered office, or to such other address as may be notified by the party concerned in writing from time to time.
13.1. No delay, neglect or forbearance by any Party in enforcing this Agreement shall prejudice its rights. No waiver of any right or breach under this Agreement shall be effective unless in writing and signed by the Party making the waiver. Any such waiver shall not be constructed as a waiver of any other right or breach of this Agreement.
14.1. If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
15. Third Parties
15.1. A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third Party which exists or is available apart from such Act.
16. Governing Law & Jurisdiction
16.1. The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by the laws of England & Wales and the parties submit to the exclusive jurisdiction of the English & Welsh courts.
SCHEDULE 1 – DATASETS
The End User shall have access to the following datasets:
- Current & Historical ER
- Tracesmart Register
- Directory Enquiries
- Land Registry Price Paid Data
- Insolvency Registers
- DRI (Death Registration Information)*
- GRO Death Indexes
- PEP Data
- Sanction Data
- UK Driving Licence Verification (excl. NI)
- UK & International Passport Verification
- Card AVS Verification
- Mobile Verification
SCHEDULE 2 – FAIR USAGE POLICY
The End User is granted access to this dataset for the primary purpose of prevention, detection, investigation and prosecution of Impersonation of Deceased (IOD) offences.
At any time during the term of this Agreement on the provision of 5 business days notice from Tracesmart, the End User shall grant Tracesmart reasonable accompanied access during normal business hours to its premises, computer systems, accounts, documents and records to ensure that the DRI Data has been used by the End User for the Permitted Purpose outlined above.
Full Electoral Roll:
The End User is granted access to this dataset for the purpose of:
(a) vetting applications for credit or applications that can result in the giving of credit or the giving of any guarantee, indemnity or assurance in relation to the giving of credit, including cash loans and any other form of financial accommodation; and
(b) meeting any obligations contained in the Money Laundering Regulations 2007 or any rules made pursuant to section 146 of the Financial Services and Markets Act 2000.
At any time during the term of this Agreement on the provision of 5 business days notice from Tracesmart, the End User shall grant Tracesmart reasonable accompanied access during normal business hours to its premises, computer systems, accounts, documents and records to ensure that the Full Electoral Roll Data has been used by the End User for the Permitted Purpose outlined above.
The End User is granted access to this dataset for the purpose of:
(a) Assisting in the prevention of money laundering
(b) ID verification
(c) Detecting fraud in relation to the granting of credit to consumers
At any time during the term of this Agreement on the provision of 5 business days’ notice from the Company, the End User shall grant the Company reasonable accompanied access during normal business hours to its premises, computer systems, accounts, documents and records to ensure that the Credit Active data has been used by the End User for the Permitted Purpose outlined above.
The End User will only be permitted to access the Service from the Company Address supplied to the Reseller when accepting the Terms and Conditions for access to be granted to the Service.
At any time during the term of this Agreement on the provision of 5 business days notice from Tracesmart, the End User shall grant Tracesmart reasonable accompanied access during normal business hours to its premises, computer systems, accounts, documents and records to ensure that the Service has been solely used by the End User at the Permitted Site(s) as outlined above.