BY PURCHASING DATA FROM THE LIST BROKER,  YOU ACKNOWLEDGE

AND ACCEPT THE TERMS OF THE FOLLOWING AGREEMENT

 

LICENCE AGREEMENT

DEFINITIONS

"Agent" A mailing house, fulfilment house, computer bureau or other agent

working on your behalf.

"Broadcast" The sending of an e-mail message to a recipient or recipients whose

e-mail address is contained in the Email Data.

"Client" Where You are an approved The list broker reseller and You are

acting on behalf of a third party in Your use of the Site and / or Your

purchase of Data, that third party. If the third party is an individual

person and if he/she is an employee and is using You in the

performance of his/her job, also his/her employing organisation.

"Code" All or any part of the pages, scripts, controls and wizards which

make up the Site.

"Data" Name and address information or telephone numbers or fax numbers

or Email Data or other items selected by You from the Site,

purchased by You and subsequently downloaded (whether directly or

by e-mail) by You or in the case of Email Data downloaded by You or

Broadcast to by LIST BROKER on Your behalf. A small number of 'seed' or

'sleeper' entries may be included by LIST BROKER to allow LIST BROKER to monitor Your

compliance with this Agreement.

"Email Data" E-mail addresses selected by You from the Site, purchased by You

and subsequently downloaded (whether directly or by e-mail) by You

or Broadcast to by LIST BROKER on Your behalf. A small number of 'seed' or

'sleeper' entries may be included by LIST BROKER to allow LIST BROKER to monitor Your

compliance with this Agreement.

"Goneaway" In the case of a name and address, an address to which an item

mailed cannot be delivered by virtue of the intended recipient never

having been, or no longer being at the address, or where the

address is incomplete. In the case of a phone or fax number, one

which cannot be reached by virtue of being a dead line or a wrong

number or where the intended recipient is no longer the subscriber

or where the number is the wrong type (e.g. a fax number is given

as a phone number).

"List Owner" the owner or licensor of the Data.

"Site" This website, The list broker.com.

"Subscriber" In the case of a company or other organisation, the company or

organisation whose name appears on the bill from the

telecommunications service provider and not any individual employee

of the company or organisation. In the case of a household, the

person whose name appears on the bill from the telecommunications

service provider.

"You", "Your" You, the individual person using the Site, and if You are an employee

and are using the Site to perform Your job, also Your employing

organisation.

Section Headings are for convenience only, and do not form part of this Agreement.

1. GENERAL TERMS

1.1 You agree that Your failure to comply with any term or condition of this

Agreement will result in the termination of Your licence to use the Data and

that You will be subject to all applicable legal remedies and/or prosecution.

1.2 You agree to accept responsibility for Your actions while using the Site,

including the selection of Data, the purchase, download, manipulation, printing

and use of the Data and all results from such use.

1.3 You warrant that You will exercise all reasonable precautions to prevent others

under Your control from violating any term of this Agreement.

1.4 You may not assign, transfer or sub-license Your rights and obligations under

this Agreement to any other party.

1.5 You warrant that You will comply with the Data Protection Act 1998 and any

subsequent amendments or legislation that implements the EU Directive

95/46/EC (and the Privacy and Electronic Communications Regulations 2003

and any related regulations) and any guidance issued by the Information

Commissioner relating thereto including but not limited to complying with Your

obligations in respect of any personal data which You may supply to or receive

from the other party. In particular (but without limitation) You warrant to LIST BROKER

and List Owner that you shall at all times (i) maintain the confidentiality and

integrity of any personal data received from or on behalf of LIST BROKER or List Owner;

(ii) implement and maintain appropriate technical and organisational security

measures against unauthorised or unlawful processing of personal data and

against accidental loss or destruction of or damage to personal data in

accordance with all appropriate Data Protection legislation; and (iii) not transfer

any personal data received from or on behalf of LIST BROKER or List Owner outside the

European Economic Area or other designated Safe Harbour. You shall ensure

that any uses to which the Data is put comply with the Codes of Practice of the

appropriate advisory bodies including without limitation the Direct Marketing

Association. You shall be responsible for obtaining and applying to the Data

any necessary suppression files including, where appropriate, the Mail

Preference Service, the Telephone Preference Service and / or the Email

Preference Service suppression files.

1.6 The List Owner shall be entitled to enforce any term of this Agreement either

directly as principal or as a third party (as applicable). Other than the List

Owner, this Agreement does not create any rights under the Contracts (Rights

of Third Parties) Act 1999 which are enforceable by any person who is not a

party to it and no person who is not a party to this Agreement may enforce any

of its terms or rely on any exclusion or limitation contained in it.

2. YOUR RIGHTS TO THE DATA

2.1 Your rights to the Data are strictly and specifically governed by the terms of

this Agreement. The permitted frequency and duration of Your use of the

Data is stated in section 4. below.

2.2 The Data comprises proprietary information intellectual property rights in

which are owned by the List Owner or others. You acknowledge and agree

that the Data is proprietary to List Owner and comprises (a) works of original

authorship (b) confidential and trade secret information and (c) information

that has been created, developed and maintained by List Owner at great

expense of time and money, such that misappropriation or unauthorised use

by others for commercial gain would unfairly harm List Owner. You agree that

You will not commit or permit any act or omission by Your agents, employees,

or any third party that would impair List Owners copyright, database rights or

other proprietary and intellectual rights in the Data.

2.3 You may not use, copy, modify or transfer the Data or any copy, modification

or merged portion, in whole or in part, except as expressly provided for in this

Agreement.

2.4 Upon purchase the Data is licensed non-exclusively for Your use only. If You

are a company, use by or on behalf of any holding company, sister company

or subsidiary company is specifically excluded.

2.5 You may not resell or transfer or disclose or permit the use of the Data to or

by any 3rd party, except to your Agent or where You are an approved

The list broker.com reseller to Your Client. Where You are an approved

The list broker.com reseller and Your purchase of Data is for and on behalf of a

Client, the Data may be held by You solely on behalf of that sole Client only

and You may not use the Data on behalf of any other Clients or third parties.

You undertake to use all reasonable endeavours to ensure that Your Agent or

Client complies with the terms of this Agreement as if it were a party hereto

and You hereby indemnify the List Owner against any loss or claim (i) arising

from this Agreement as a result of any act or omission on the part of Your

Agent or Client; and (ii) arising from any failure by You, Your Agent or Client

to comply with the terms of this Agreement and in particular the restrictions

set out in section 4.

2.6

You agree not to use the Data in any way other than for mailing, phoning orfaxing or e-mailing (to the extent permitted under section 4) for marketing

and promotional purposes relating to Your business or that of Your Client.

2.7 You may make a single copy of the Data in machine readable or printed form

for backup purposes and in support of Your own use of the Data or that of

your Client.

2.8 You agree to indemnify LIST BROKER and the List Owner in respect of any claim arising

from use of the Data made by You or Your Agent or Client and/or arising from

the material dispatched using the Data by You or Your Agent or Client,

including but not limited to defamation, obscenity or infringement of others'

rights.

2.9 You agree to indemnify LIST BROKER and the List Owner in respect of all costs, claims,

demands or expenses incurred or suffered by them as a result of any

unauthorised copying, re-use, re-sale, disclosure or any other unauthorised

use of the Data while in Your possession or the possession of Your Agent or

Client.

2.10 In the event that payment made by You for the Data by cheque or credit card

or otherwise is subsequently reversed by You or by Your bank or by Your card

issuer or otherwise, all and any rights You and/or Your Agent and/or Your

Client may have in the Data shall immediately cease. Payment for the full

amount remains due to LIST BROKER and LIST BROKER reserves the right to use all and any

applicable legal remedies to recover payment from you as well as any

additional costs incurred by LIST BROKER in so doing.

2.11 In the event that You purchase Data against account facilities provided by LIST BROKER

and the invoice for the purchase of this Data issued to You by LIST BROKER remains

unsettled more than 30 days past its due date, all and any rights You and/or

Your Agent and/or Your Client may have in the Data shall immediately cease.

Payment for the full amount remains due to LIST BROKER and LIST BROKER reserves the right to

use all and any applicable legal remedies to recover payment from you as well

as any additional costs incurred by LIST BROKER in so doing.

2.12 You understand that LIST BROKER and List Owner reserve the right, subject to

reasonable prior notice, to audit for compliance with the terms of this

Agreement. Such right of audit shall include (without limitation) the right to

audit any relevant database or computer files maintained by You and Your

Agent and Your Client to ensure that the use of the Data by You and Your

Agent and Your Client complies with the provisions of this Agreement. You

and Your Agent and Your Client shall allow access during normal working

hours and to all relevant records to allow for such audit to be completed.

2.13 Where the Data is used in contravention of the provisions of this agreement

You shall pay to LIST BROKER a sum equivalent to the value of the charges on each

occasion that the Data is so used and You expressly agree and acknowledge

that the provisions of this clause 2.13 shall operate by way of liquidated

damages and are a genuine pre-estimate of LIST BROKER's loss in such circumstances.

2.14 Upon expiry or termination of the licence period permitted by this agreement,

You and Your Agent and Your Client shall immediately delete or destroy all

originals and copies of the Data save for those individuals and/or businesses

which become Your bona-fide customers in accordance with the provisions of

Section 4 of this agreement.

3. EXCLUSION OF LIABILITY

3.1 To the extent permitted by law, LIST BROKER and the List Owner do not make and

hereby disclaim any warranty, express or implied. LIST BROKER and the List Owner do

not guarantee or warrant the correctness, completeness, currentness, or

satisfactory quality and fitness for a particular purpose of the Data.

3.2 Neither LIST BROKER nor the List Owner will be liable in any event, including liability for

negligence (except for personal injury or death), to You or others for any loss

or damages, lost revenue or profits, or any indirect or consequential loss or

damages resulting from problems caused by the interaction of the Code or

Data with Your computer, operating system, other software or data, or from

Your use of or inability to use the Code or Data.

3.3 In the event of any claim upheld against LIST BROKER or the List Owner, LIST BROKER or the List

Owner will not be liable to You or others in excess of the purchase price of the

Data.

4. LIST OWNER'S SPECIFIC LICENCE TERMS

If any conflict arises between any other term of this Agreement and the List

Owner's specific licence terms in this section 4, the List Owner's specific licence

terms shall prevail.

4.2 Unless otherwise specified in section 4.3, the Data is owned at all times by

The list broker Ltd and copyright and intellectual property rights in the Data

shall at all times remain vested in The list broker Ltd.

4.3 [intentionally blank]

4.4 Data (other than Email Data) for multiple use may be used an unlimited

number of times within a twelve month period from the date of this Agreement

and only for the purposes allowed by this Agreement, provided that You may

use the Data subsequently in respect only of those individuals and/or

businesses which become Your bona fide customers as a result of your

marketing activity carried out using the Data and in accordance with this

Agreement.

4.5 Data (other than Email Data) for single use may be used once only within a

twelve month period from the date of this Agreement and only for the

purposes allowed by this Agreement, provided that You may use the Data

subsequently in respect only of those individuals and/or businesses which

become Your bona fide customers as a result of your marketing activity carried

out using the Data and in accordance with this Agreement.

5. DATA QUALITY, COMPLETENESS AND REFUNDS

5.1 You accept that the Data may contain a number of goneaways and that

unless the level of goneaways exceeds the relevant percentage of the Data

(see 5.10) You accept that no replacement Data or refund shall be due in

respect of these goneaways. If the level of goneaways exceeds the relevant

percentage or if any other fault arises in the Data, LIST BROKER and / or List Owner

shall have the right to remedy such fault where possible by re-supplying all or

the relevant percentage of the Data. In the event that You do not advise LIST BROKER

or List Owner of any defect in the Data within ninety (90) days from the date

of receipt thereof in the case of goneaways or thirty (30) days from the date

of receipt thereof in all other cases, You shall be deemed to have accepted

the Data.

5.2 Where Data contains name elements (such as salutation, forename, initials,

surname) You accept that not all elements will necessarily be present for each

record and that no replacement Data or refund will be given for

incompleteness of the Data in this instance. You also accept in the case of

business data that a named contact may comprise an individual name or job

title or both and that job holders are subject to frequent change and that no

replacement Data or refund will be given for incorrect or missing contact

names or job titles.

5.3 Deduplication is an inexact science as the same company/address may be

expressed or spelt differently in different databases. We use "fuzzy matching"

to assign a unique Royal Mail Address Key to each household address and

each company/address combination so that where possible such addresses

are considered as the same and the duplicate removed. However a small

number of such "not-quite-duplicates" may slip through - this is unavoidable

and You accept that no replacement Data or refund will given in this case.

5.4 E-mail addresses are prone to frequent change, as well as being unreachable

for a number of technical and other reasons (such as, but not limited to,

account disabled, mailbox full, limit on message size, anti-spam policy,

firewall). A much higher percentage of undeliverable e-mail is to be expected

than for mail, phone or fax. For this reason, You accept that no replacement

Data or refund will be given for undeliverable e-mail addresses in the Data,

irrespective of the reason for non-delivery.

5.5 Replacement Data or a refund will be given for the proportion of the purchase

price represented by mail, phone and/or fax goneaways subject to You

following the procedure indicated in 5.11, provided You have

mailed/phoned/faxed a reasonable number of records (see 5.6) and the

goneaways fall within the relevant definition (see 5.7 - 5.9) and the level of

goneaways exceeds the relevant percentage of the Data (see 5.10) and if you

have purchased the Data against account facilities provided by LIST BROKER you have

settled the invoice relating to the Data within the agreed account settlement

period.

5.6 Before You can make a claim for replacement Data or a refund for

goneaways, You must mail or phone or fax (as the case may be) a minimum

of 250 records or 20% of the total number of records in the Data whichever is

the greater. In the event that there are less than 250 records in the Data, You

must mail or phone or fax (as the case may be) all the records in the Data.

5.7 A mailable address is a goneaway if i) You mail an item to it and ii) the item is

returned to You bearing a red Royal Mail 'We were unable to deliver this item

because...' sticker marked as 'addressee has gone away' or 'addressee

unknown' or 'address incomplete' and iii) LIST BROKER are unable to subsequently verify

the address. A mailable address is not a goneaway for any other reason (such

as marked 'refused', 'do not mail me again', 'not interested' etc.).

5.8 A telephone number is a goneaway if i) You call it and ii) it is a dead line or it

is a wrong number or it is a fax number (and not shared by a phone) or the

Subscriber is no longer at the number. A telephone number is not a goneaway

for any other reason (such as no answer or number engaged, an answering

machine or voicemail, Subscriber not interested or refuses to talk etc.).

5.9 A fax number is a goneaway if i) You send a fax to it and ii) it is a dead line or

it is a wrong number or it is a phone number (and not shared by a fax

machine) or the Subscriber is no longer at the number. A fax number is not a

goneaway for any other reason (such as no answer or number engaged, an

answering machine, incompatible fax machine etc.).

5.10 For this Data, the percentages of records which must qualify as goneaways

before replacement Data or refund for goneaways will be given are:

Addresses: 6%

Fax Numbers: 10%

Good2Call landline telephone Numbers: N/A

Other telephone Numbers: 10%

5.11 Claims for replacement Data or refund for goneaways must be made with

supporting documentation (e.g. returned envelopes, call records, fax logs)

within 90 days of date of purchase. Replacement Data or refund will not be

given where supporting documentation is not provided. Supporting

documentation should be sent to Customer Support, The list broker.com, Lyon

Court, Walsworth Road, HITCHIN, SG4 9SX, UK. Only one claim may be made

for each purchase. A separate claim must be made for each purchase. For

further assistance, You should contact the The list broker.com Customer

Support team on 0845 345 7755 (+44 (0)1462 437555).

5.12 If You think You are due replacement Data or refund for any reason which is

not related to goneaways, You should contact the The list broker

Customer Support team. Please note that any credit card handling fees or small order handling fees will not be

refunded unless the reason for the refund is due to error on our part. In the

event that You are provided a Destroyed Data Declaration by LIST BROKER, no refund

will be given until this has been signed by You and returned to LIST BROKER.

5.13 Until and unless a refund has been agreed by LIST BROKER, payment for the full

amount remains due to LIST BROKER and LIST BROKER reserves the right to use all and any

applicable legal remedies to recover payment from you as well as any

additional costs incurred by LIST BROKER in so doing.

6. JURISDICTION

6.1 This Agreement is governed by English Law and You agree to submit to the

exclusive jurisdiction of the English Courts in respect of any dispute arising.

6.2 All notices shall be given in writing to persons at the locations specified in this

Agreement or such other address as either party may designate by notice to

the other. Notice sent by post shall be deemed to be delivered seventy-two

(72) hours after posting.

6.3 This Agreement contains the entire understanding between the parties hereto

and supersedes all previous agreements between the parties. No other terms

or conditions (including any written, given verbally or attached to any purchase

order form, document or correspondence) shall be included or implied unless

agreed upon in writing signed by an authorised officer or representative of

each of the parties to this Agreement providing that nothing in this clause shall

be deemed to exclude either party's liability for fraudulent misrepresentation.

END OF LICENCE AGREEMENT