Terms & Conditions IMPORTANT: HALO DATA LIMITED ONLY ENGAGES IN BUSINESS TO BUSINESS TRANSACTIONS. IF YOU ARE DEALING AS A CONSUMER, PLEASE DO NOT PLACE AN ORDER WITH HALO AND CONTACT HALO IMMEDIATELY. BY ENTERING INTO A CONTRACT WITH HALO, YOU ARE WARRANTING THAT YOU ARE CONTRACTING ON BEHALF OF THE LEGAL ENTITY NAMED IN THE ORDER FORM. PLEASE ALSO NOTE CLAUSE 10.2 REGARDING USE OF PERSONAL CREDIT CARDS TO SETTLE BUSINESS DEBTS; THIS WILL NOT MEAN THAT YOU DEAL AS A CONSUMER.
1. Definitions
In these Conditions, the following terms shall have the meanings set out below:
"Broadcast Service" - a service under which Halo will broadcast certain Materials to a chosen database supplied either by the Client or by Halo, via fax, email or other agreed medium, as specified in the Contract.
"Campaigns" means direct marketing, web marketing and telemarketing.
"Client" - the entity stated in the Order Form that has ordered a Service from Halo.
"Conditions" ? Halo's standard terms and conditions as set out in this document.
"Contract" - shall mean a contract between Halo and the Client formed in accordance with clause 2.2 below and subject at all times to the Conditions, pursuant to which Halo has agreed to supply the specified Services to the Client.
"Database" ? where a Database Service is agreed as part of a Contract, the database(s) or extracts of the database(s) specified in the Order Form, to be supplied by Halo to the Client.
"Database Service" ? a service under which Halo grants the Client a licence to use a specified Database in accordance with the Contract and these Conditions, such Database to be provided to the Client.
"Extranet" means a web based interface allowing the Client to receive data collected by Halo
"Fee" - the fee stated in the Order Form + VAT (where applicable) to be paid by the Client in relation to the Services.
"FTP" - delivery by Halo of the Database(s) by making the same available for downloading by the Client from a central internet web area to be notified to the Client by Halo.
"Guidelines" ? Halo's guidelines relating to the Materials from time to time, to be provided to the Client.
"Intellectual Property Rights" - means (i) patents, copyright, database rights and rights in trade marks, designs, trade secrets, know-how and confidential information, and all intellectual property rights of whatever nature (whether registered or unregistered);(ii) applications for registration, and the right to apply for registration, for any of these rights; and (iii) all other equivalent or similar forms of protection, in each case existing anywhere in the world.
"Halo" means Halo Data Limited, a company incorporated in England and Wales under company no 04460599 with an address at Admin Department, Vickers House Priestley Road, Basingstoke, Hants RG24 9NP.
"Lead" - means a single record of information of a person with whom Halo has completed the relevant Lead Criteria Questionnaire whether via telemarketing, website or some other interactive medium as part of the Lead Generation Service. A collection of Leads may be known as a Database.
"Lead Criteria Questionnaire" ? means Halo's standard questionnaire for the relevant Lead Generation Service set out in the Order Form which is designed to check if a potential lead meets certain criteria, as described to the Client. The Client accepts and agrees that Halo will have different criteria and questionnaires in relation to different types of Lead Generation Service.
"Lead Generation Service" - a service under which Halo contacts potential leads for the agreed type of lead generation service (e.g. IVA or Debt Management leads), and pre-screens these potential leads for the Client based on the applicable Lead Criteria Questionnaire. Provided the answers given by those potential leads to the Lead Criteria Questionnaire (which shall not be independently verified or corroborated by Halo) meet the relevant criteria, Halo will supply the pre-screened potential leads to the Client. The Client expressly acknowledges that the Lead Generation Service is subject to the disclaimer set out in clause 7.2.
"Lead Type? ? the basic identifiable form of a Lead before specific selection or order criteria specified by the client is applied e.g. IVA, Debt Management, Home Insurance etc
"Materials" - materials to be provided by the Client to Halo in compliance with the Guidelines and in a format that Halo reasonably requests, to enable Halo to provide any applicable Broadcasting Services.
"Media" ? in relation to any Database Service which is to be provided by Halo as part of a Contract, means (i) the physical media on which the Database(s), and if applicable, any Software are contained, or (ii) the electronic message to which the Database(s) are attached, as specified on the Order Form.
"Order Form" ? Halo's standard order form completed either by email, fax or online, which remain at all times subject to these Conditions and on which any order for the Services or any part thereof must be made, and which will when either (i) signed by Halo, or (ii) confirmed by Halo, or (iii) acted upon by Halo, together with these Conditions, constitute a Contract.
"Permitted Third Party" - any entity to which Halo may grant written authorisation to the Client to sub-licence the rights granted to the Client in these Conditions in the Database(s), Leads and Software.
"Replacement Policy" ? means a policy under Halo's standard terms for the relevant Lead Generation Service under which potential leads which have been supplied to the Client pursuant to that service may be replaced, if such potential leads do not meet the applicable Lead Criteria Questionnaire or other criteria set out in the Replacement Policy itself, subject at all times to Clause 7.
"Service" ? such of the following services as are specified in the Contract: (a) a Lead Generation Service, (b) a Broadcasting Service, (c) a Survey Service and/or (d) a Database Service.
"Software" - where applicable, the object code of the software contained in physical Media in machine-readable form provided to the Client to enable review and use of the Database(s). "Software" is not provided where Database(s) are provided by Halo in electronic Media in CSV or TXT or other formats or by FTP.
"Survey Service" ? a service under which Halo carries out a survey based on pre-agreed questions on behalf of the Client, with Halo's own databases or (if the Client requests) to databases supplied by the Client. The Client will not obtain any access to the relevant database as part of this service, but will be entitled to the final survey report collated by Halo.
2. Conditions Applicable
2.1 These Conditions shall apply to all contracts for the supply of any Services or any part thereof, by Halo to the Client to the exclusion of all other terms and conditions, including any terms and conditions which the Client may purport to apply or include under any purchase order, confirmation of order, telephone conversations, verbal agreements, emails or similar communications. These Conditions do not constitute an offer for sale or supply of any products.
2.2 No orders will be accepted by Halo unless they are submitted on an Order Form signed by or on behalf of the Client or submitted on Halo's website using Halo's Online Order Forms. No contract shall come into force between Halo and the Client until such time as Halo shall either (i) confirm the Client's order in writing by returning a copy of the Order Form to the Client signed on behalf of Halo or (ii) send a confirmation of order to the Client (including by e-mail) or (iii) commence performance (in each case, a "Contract").
2.3 Submission of a signed Order Form or confirmed Online Order Form by the Client shall be deemed conclusive evidence of the Client's acceptance of these Conditions.
2.4 Any variation or amendment of these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by Halo and expressly stated to be a variation or amendment to the same.
2.5 Halo?s Responsibilities
2.5.1 Halo will provide the Client with Leads conforming to the agreed criteria as detailed in Schedule A
2.5.2 Halo will replace any leads conforming to criteria set out in Schedule B.
2.5.3 Halo will make available it?s standard Extranet facilities for optional use by the Client
3. Services - Delivery and Acceptance
3.1 Halo will use reasonable endeavours to deliver the Services to the Client by the anticipated timescale set out in the Contract, provided that time for delivery is not of the essence of any contract.
3.2 In relation to Database Services, delivery will be effected either (i) where physical Media is being delivered, by courier, mail or registered mail to the Client's place of business as specified in the Order Form, or (ii) where electronic Media is being delivered, by electronic transmission over the internet to an internet address specified by the Client, or (iii) by extranet or FTP, in which event Halo shall notify the Client of any relevant internet addresses necessary to permit downloading. In relation to Lead Generation Services and Survey Services, delivery will be effected by Halo sending to the Client an electronic report of the results of carrying out the relevant service. In relation to Broadcast Services, delivery will be effected by Halo carrying out the relevant broadcast of Materials in the media agreed with the Client in the Contract.
3.3 Delivery of physical Media will be deemed to take place when the physical Media are proffered for delivery to the Client or, if no one is available to accept delivery, when delivery was attempted. Risk in any physical Media shall pass on delivery to the Client. If any part of any physical Media shall after delivery be lost, destroyed or damaged, Halo shall as soon as practicable after the Client's request provide a replacement of the same, subject to the Client paying any costs associated with the provision of a replacement.
3.4 Subject to Halo not having received a return receipt stating that the message was undeliverable within such time, electronic Media shall be deemed delivered by Halo 20 minutes after it was sent. If Halo receives such a return receipt it shall contact the Client with a view to resolving any problem causing such failure in delivery. If delivery fails on 3 occasions Halo shall attempt to complete delivery of physical Media as soon as practicable and shall be entitled to charge the Client a reasonable administration fee. Delivery by Extranet or FTP will be deemed to take place 10 minutes after Halo has notified the Client that the relevant items are available for download from a specified central web area (whether the Client downloads the relevant items or not).
3.5 Any claim that the Services (or any output of the Services) delivered do not conform to those specified by the Client in the Contract must be notified to Halo in writing within 3 working days of the date of delivery, and such notice must provide full details of the alleged non-conformity. Halo shall, if it accepts such a claim after reviewing the same, as the Client's sole and exclusive remedy in respect of such claim, at Halo's option either refund the Fee to the Client in which event the contract shall terminate and the provisions of clause 12.5 shall apply or re-perform the relevant Services. This is without prejudice to the terms of the Replacement Policy which applies on the terms set out in Clauses 7.1 and 7.2 below.
4. Databases ? Licence
The following terms and conditions apply in relation to the Database Services only:
4.1 In consideration of the payment of the Fee by the Client, subject to these Conditions, from the date of delivery Halo grants to the Client a non-exclusive, non-transferable licence to use the Database(s) and Software for its own business marketing purposes for the period specified in the Order Form. Such licence is granted subject to any further restriction on usage stated in the Contract (in relation to number of times data may be used, number of user licenses granted or in any way otherwise). Any copying, extraction, re-utilisation or other use of the Database(s) and Software except as expressly permitted by the Contract is strictly forbidden unless agreed otherwise by Halo.
4.2 The Client acknowledges that Halo may incorporate "seed names" within the Database(s) for the purpose of monitoring the Client's compliance with these Conditions. If Halo receives notice that a seed name has been contacted by either:
i) the Client or Permitted Third Party (whether directly or indirectly) after the termination of the agreed licence period or otherwise in breach of the Contract; or
ii) an unauthorised third party at any time;
the Client accepts that this is deemed to be a proven breach of Contract. Accordingly, the Client shall pay to Halo a sum equivalent to the Fee for each 12 month period, or part thereof, between the date of the termination of the agreed licence period and the date of the contact with the seed name (in respect of use of the seed name outside the agreed period) or a sum equivalent to a proportion of the Fee during the agreed licence period to reflect the purpose (outside the agreed purpose) for which the seed name was used. In the event of use by an unauthorised Third Party, the Client shall pay to Halo a sum equivalent to (a) the Fee applicable for each 12 month period or part thereof plus (b) compensation equivalent to 50% of the applicable Fee, towards the costs incurred by Halo in maintaining a monitoring system to detect such misuse plus (c) any additional costs incurred by Halo in the enforcement of any action made against the Client for the rectification of matters related to any such misuse.
4.3 Where Software is provided by Halo to enable the Client to access the Database, the Client's licence to use the Software is limited to use for the purposes of uploading, downloading, updating, exporting, interrogating and reading the Database(s) in accordance with the scope of permitted use of the Database(s) only. The Software shall not without the prior written consent of Halo be used in any location other than the Client's business address (or that of any Permitted Third Party) as specified on the Order Form. The Software shall at all times only be used in accordance with any instructions supplied by Halo and in conjunction with any equipment meeting any minimum specifications stated by Halo as required for the proper functioning of the Software. The Client shall be responsible for the installation of the Software.
4.4 The Client shall not install the Database(s) (including where provided by FTP or electronic Media) and (where provided) Software, and shall not allow any Permitted Third Party to install the same, on more than 1 computer or network system. The Client, and any Permitted Third Party, may only copy the Database(s) and Software for back-up purposes. Any copies of the Database(s) and Software and the physical media on which they are stored shall be the property of Halo and the Client shall ensure that all copies bear Halo?s proprietary notice and any other notices specified by Halo from time to time.
4.5 Except as permitted by applicable law (to the extent that cannot be excluded by contract), the Client agrees not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer any Software provided by Halo without Halo's prior written consent.
4.6 If the Client requests an extension of the agreed licence period, a further Fee will be payable on the commencement of any such extension. Halo reserves the right to refuse any request for an extension and to increase the Fee payable in such event from that provided in the Order Form.
5. Confidentiality, Copying and Intellectual Property Rights
5.1 The Client shall not sub-licence the rights granted to it in the Database(s) and Software under these Conditions to any person except a Permitted Third Party who has acknowledged and accepted in writing equivalent licence and usage restrictions as those that bind the Client itself in these Conditions. The Client acknowledges that the Database(s) (and any modifications thereof or updates thereto provided to the Client) are confidential information of Halo and the Client undertakes not to divulge such information to any third party except a Permitted Third Party. The Client shall ensure any Permitted Third Party maintains the confidentiality of the Database(s) and acts strictly in accordance with these Conditions. The Client shall be responsible for any breach of these Conditions by any Permitted Third Party. The provisions of this clause shall survive the termination of any contract for whatever reason.
5.2 Halo shall be entitled to disclose the name of the Client (and any Permitted Third Party) as a user of the Database(s).
5.3 The Intellectual Property Rights, as between Halo and the Client, are and shall remain the property of Halo and the Client acknowledges that it does not obtain any such rights in any materials provided to it by Halo. No ownership of Intellectual Property Rights shall transfer as a result of any Contract.
5.4 The Client will immediately notify Halo of any claim of which it may become aware which may be made against Halo or the Client alleging that the use by the Client of the Database(s) and/or (where applicable) the Software infringes the intellectual property rights of a third party. The Client shall make no admission relating to such claim and shall give Halo the sole conduct of any such claim and its settlement. The Client shall provide such assistance as Halo may reasonably request. In the event of such a claim Halo shall either obtain the right for the Client to continue to use the items contracted to be provided to the Client that are the subject of any claim or replace or amend such items so that they are non-infringing. If such remedies are not available in Halo?s reasonable opinion (including due to unacceptable cost) then the Client shall return the Database(s) and Software that are the subject matter of a claim and Halo shall refund a pro rata of the Fee to the Client (calculated by reference to the Fee and the time elapsed of the agreed term) and the contract shall immediately terminate. Halo shall have no liability under this clause where a claim results from the use of the Database(s) and/or (where applicable) Software in a manner other than as provided in these Conditions or in conjunction with any equipment or programs not approved or supplied by Halo or any modifications carried out by a party other than Halo or as may have been approved in writing by Halo.
5.5 The Client shall immediately notify Halo of any infringement or suspected infringement by any third party of any of the Intellectual Property Rights of which it is or becomes aware and shall at the request and expense of Halo take such action, or assist Halo in taking such action, as Halo may deem appropriate to protect Halo's (or its licensors') Intellectual Property Rights.
6. Broadcasting Services
6.1 The Client shall provide to Halo, by any date specified by Halo, such Materials as Halo may specify as necessary for the provision of the Broadcasting Services, and such Materials complying with the Guidelines (or any applicable part of the same) which the Client wishes Halo to broadcast. Subject to the foregoing, Halo will use reasonable endeavours to perform the Broadcasting Services on the Delivery Date, provided that time for performance of the Broadcasting Services is not of the essence of any contract. No commitment is given that the Broadcasting Services will be performed at any particular time on the Delivery Date or any other day on which the Broadcasting Services are provided. Any delay in delivery of the Materials or the need for any Materials to be amended to comply with the Guidelines, may cause a delay in the performance of the Broadcasting Services. Halo accepts no responsibility or liability of any nature arising from any such delay.
6.2 Subject to the Fee having been paid in full by the Client, Halo shall if requested by the Client after the provision of the Broadcasting Services return the Materials to the Client at the Client's cost, provided that Halo shall be entitled to retain a copy of the Materials for archiving purposes. If the Client does not request the return of the Materials or the Fee has not been paid in full on the completion of the Broadcasting Services, Halo reserves the right to destroy the same (with or without keeping a copy) at any time after the provision of the Broadcasting Services. Destruction of the Materials is without prejudice to Halo's right to seek payment of the Fee.
6.3 The number of broadcasts constituting the Broadcasting Services shall be specified in the Order Form. The Client acknowledges that the nature of the Broadcasting Services means that successful completion of 100% of the broadcasts is very unlikely. Halo shall have fulfilled its obligations in respect of the Broadcasting Services when the residual value of the unsent volume (calculated on a pro-rata basis of the Fee) does not exceed £75.00 (inc VAT) and a minimum of 80% of the ordered volume has been successfully sent. "Successful broadcast" means that Halo has not received a message from the broadcasting system, which in its opinion, confirms that the broadcast was not delivered.
6.4 If at the first attempt, Halo does not meet either criterion for the fulfillment of its obligations set out in clause 6.3, Halo shall make further attempts to make the necessary additional deliveries at its earliest convenience until such time as the residual value of the unsent volume (calculated on a pro-rata basis of the Fee) does not exceed £75.00 (inc VAT) and a minimum of 80% of the ordered volume has been successfully sent. Subject to having used reasonable endeavours to have made such broadcasts as are required under this clause, if after 2 weeks from the date of the Broadcasting Services first being provided Halo has not been able to successfully complete the necessary broadcasts to fulfill its obligations, it shall as the Client's sole remedy in respect of such failure pay to the Client a sum equivalent to the difference in value between the number of broadcasts successfully made to such date and 80% of the Fee.
6.5 If requested by the Client within 3 days of the completion of the Broadcasting Services, Halo shall on completion of the Broadcasting Services render a report to the Client as soon as practicable showing the information considered relevant by Halo but including information relating to successful and unsuccessful broadcasts. In the absence of manifest error or fraud, such report, or if no report is requested, Halo?s declaration as to the number of broadcasts successfully sent, shall constitute conclusive proof as to the provision of the Broadcasting Services.
7. Lead Generation Service
7.1 Halo shall use reasonable efforts to generate leads for the Client. The Lead Generation Service shall be provided on the basis of the applicable Lead Criteria Questionnaire. In reasonable circumstances, Halo will offer Clients replacements of potential leads in accordance with its Replacement Policy from time to time, but subject at all times to Clause 7.2 below.
7.2 The Client expressly acknowledges and agrees that:
(i) Halo will ask potential leads the questions in the relevant Lead Criteria Questionnaire and will record the answers given by those potential leads;
(ii) Halo will take no steps to independently verify or corroborate or otherwise double check the answers given by those potential leads, but shall be entitled to assume for the purposes of the Lead Generation Service that such answers are accurate;
(iii) Halo's Lead Generation Service is a pre-screening process, and therefore by its very nature will not be as thorough as any screening or acceptance processes which the Client may then carry out in relation to such potential leads. For example, in terms of the potential lead's income calculation, a pre-screening carried out by Halo is likely to involve rough estimates whereas the Client's own questioning is likely to be more detailed and thorough;
(iv) if Halo were to provide a more detailed screening process than that set out in the relevant Lead Criteria Questionnaire and subject to these Conditions, then the price for such Services would be correspondingly higher; and
(iv) provided that Halo has asked potential leads the questions in the relevant Lead Criteria Questionnaire and such potential leads have given appropriate answers, Halo shall have no liability whatsoever (whether under any Replacement Policy or otherwise in any way) in relation to a supply of that potential lead to the Client under this Lead Generation Service, whether or not such lead in fact ends up as a useful lead to the Client.
7.3 In the event that the Client requests a replacement, Halo will assess the Client's entitlement to a replacement in accordance with the terms of the relevant Replacement Policy and these Conditions. The Client acknowledges that assessing whether or not the Client is genuinely entitled to a replacement is in itself a time consuming and costly process. Therefore in the event that Halo, acting reasonably, assesses the Client's request for a replacement and determines that the Client is not entitled to a replacement, Halo reserves the right to make a charge equivalent to £5 plus VAT for each such event.
7.4 Where Halo supplies a replacement pursuant to the Replacement Policy, that shall be the Client's sole and exclusive remedy in that regard.
8. Survey Service
8.1 Halo shall use reasonable endeavours to contact individuals to carry out Survey Services in accordance with the terms of the relevant Contract. Where the Client supplies any personal data of individuals who it wants to be contacted in relation to a survey, the Client represents and warrants that all necessary consents, permissions and licences are in place to enable Halo to legitimately contact such individuals for this purpose.
9. The Materials
9.1 The Materials shall remain the property of the Client. Halo shall take reasonable care of such Materials while they are in its possession. Subject to taking such reasonable care, Halo shall not have any liability in respect of any damage, loss or destruction of the Materials. The Client is responsible for keeping its own copies of the Materials. The intellectual property rights in any design or other creative work applied to the Materials by Halo shall be the sole property of Halo and the Client acknowledges that they have no rights in such work at any time.
9.2 Halo is not able to carry out checks to verify the ownership of the Materials. The Client warrants to Halo that the Materials: (i) with the exception of any design or other creative work applied to them by Halo, do not infringe the Intellectual Property Rights of any third party, and (ii) do not infringe any rights of privacy of any individual, or include the numbers or any other details of any individual or business that may have opted out of receipt of any broadcasts of the nature of the Broadcasting Services, or otherwise breach any legislation, including the Data Protection Act 1998.
9.3 The Client further warrants that the provision by Halo of the Broadcasting Services and Survey Services ordered by the Client is not in breach of any laws or regulations, including without limitation laws relating to privacy and data protection.
9.4 The Client shall if requested by Halo make such amendments to the Materials as Halo may consider necessary having reviewed such Materials. Notwithstanding such review, the Client remains solely responsible for the content of any Materials and for any errors that may exist in the Materials when broadcast. This provision shall survive termination or expiry of the applicable contract.
9.5 The Client acknowledges that there are limitations in what can be broadcast by fax, email or voice. The Client is responsible for ensuring that the Materials provided to Halo are suitable for such broadcast and must satisfy itself that the Materials can be received to an adequate quality by recipients.
10. Payment
10.1 In consideration of Halo's obligations and the rights granted to the Client in these Conditions, the Client will pay the Fee to Halo as provided on the Order Form. The Client shall not be entitled to make any deduction whatsoever from the Fee and shall not be entitled to assert any credit, set off or counterclaim against Halo in order to justify withholding payment of any such sum in whole or in part. Halo shall be entitled to set off any sums it may owe the Client under any contract against sums owed to it by the Client.
10.2 The Client acknowledges and agrees that even if it pays the Fee or any other amounts due to it under this Agreement via a director's or an employee's personal or corporate credit card (or if a personal guarantee is in force and invoked in respect of the Client), this will not render the transaction a consumer transaction.
10.3 Without prejudice to any other rights or remedies available to it, Halo shall be entitled to charge interest, compounded monthly, on any overdue payments at the rate of 3% above the base rate from time to time of Lloyds TSB Bank plc from the date that such payment became due until discharged in full (whether before or after any judgment). Halo also reserves the right after payment has become overdue to charge the Client a sum of up to £5 (together with VAT if payable) in respect of each reminder letter, fax or telephone call that Halo is required to send or make in order to prompt payment in respect of its costs.
10.4 The Client is responsible for payment of VAT on any supply of goods or services by Halo pursuant to any Contract. Where any goods or services are supplied by Halo to the Client on the basis that they are exempt or zero rated of VAT, the Client agrees to indemnify and hold Halo (and its officers and employees) harmless from and against any liabilities, costs, expenses, damages and other payments suffered or incurred as a result of any subsequent investigation by HM Revenue & Customs and/or any decision by HM Revenue & Customs that such supply (or any part of it) should in fact have been charged with VAT at the relevant time.
10.5 The Client will provide Halo with requests for any replacement leads within the principals set out in Schedule B of the order.
10.6 The Client agrees to pay all accounts as they fall due
11. Warranties
11.1 With respect to the Database(s) and (where applicable) Software, Halo warrants that it is entitled to grant the licence contained in these Conditions. Halo warrants that it shall use reasonable care and skill in providing the Services.
11.2 While Halo shall use reasonable precautions to ensure that no viruses known to Halo for which detection and antidote software is reasonably available as at the date of delivery are coded into the Software, or are transmitted by delivery of electronic Media, or delivery by FTP, subject to clause 10.1 and notwithstanding clauses 9.2 and 10.3, Halo accepts no liability for any damage or loss of whatsoever nature caused by any viruses or other malicious code of whatsoever nature that may be transmitted to the Client pursuant to Halo?s fulfillment of a contract. As a minimum specification requirement, the Client shall ensure that any machine on which it loads the Database(s) and Software runs up to date virus detection software.
11.3 Halo gives no warranty that the Database(s) or the Services will be error free or accurate or fit for any purpose of the Client.
11.4 To the extent permitted by applicable law, Halo disclaims all other warranties with respect to the Media, Leads, Database(s), Software, and the Broadcasting Services, whether express or implied, including but not limited to any implied warranties relating to reasonable skill and care, quality, fitness for any particular purpose or ability to achieve a particular result.
11.5 The Client Warrants that:
11.5.1 in contracting with Halo it is dealing as a business and not as a consumer.
11.5.2 any Lists supplied to Halo have been compiled in all respects with the Data Protection Acts 1984 and 1998, the Telephone Preference Service, the Mail Preference Service and all other applicable codes of practice; and
11.5.3 the persons detailed in the Lists supplied to Halo have, where appropriate, not dissented to the use of their information for the purposes envisaged by this Agreement.
11.6 The Client indemnifies Halo against all claims and proceedings arising from the Client?s infringement (or alleged infringement) of the Data Protection Acts 1984 and 1998, the Telephone Preference Service, the Mail Preference Service and all other applicable codes of practice by reason of Halo?s possession or use of the Lists supplied by the Client.
11.7 As a condition of this indemnity Halo must:
a) notify the Client promptly in writing of any claim or potential claim;
b) make no admission relating to the claim; and
c) allow the Client to conduct all negotiations and proceedings taking into account any representations made by Halo and give the Client all reasonable assistance (for which the Client will reimburse Halo?s reasonable expenses).
12. Liability
12.1 Nothing in any contract shall limit or exclude Halo's liability for death or personal injury caused by its negligence or for fraud.
12.2 Subject to clause 12.1, in no event will Halo be liable for any damages resulting from loss of data or use, lost profits or loss of anticipated savings (in each case whether direct or indirect), nor for any damages that are an indirect or secondary consequence of any act or omission of Halo whether such damages were reasonably foreseeable or actually foreseen.
12.3 Subject to clause 12.1 and without prejudice to clause 7.4, Halo's maximum liability to the Client under any contract or otherwise for any cause whatsoever, including Halo's negligence, will be for direct costs and damages only and will not in any event exceed the Fee paid by the Client in respect of the applicable contract. If the Client requires Halo to agree a greater level of liability than that provided in this clause, it may request Halo to do so subject to Halo's right to increase the Fee as it may deem appropriate to reflect the enhanced risk.
12.4 The parties acknowledge that the limitations contained in this clause 12 are reasonable in light of all the circumstances. The Client agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with any contract and that the Fee has been agreed on the basis of the limitations and exclusions in these Conditions. The Client will effect such of its own insurance as it considers appropriate having regard to its particular circumstances and these Conditions.
12.5 The Client shall indemnify and hold harmless, and shall keep indemnified and held harmless, Halo from and against all loss (including legal expenses), damage or liability (whether criminal or civil) suffered or incurred by Halo arising from (i) any breach by the Client of these Conditions, and/or (ii) the provision by Halo of the Broadcasting Services in accordance with these Conditions and/or (iii) any errors that may exist in the Materials when broadcast. This provision shall survive termination or expiry of the applicable contract.
13. Force Majeure
13.1 Halo shall not have any liability under, or be deemed to be in breach of, any contract as a result of any delay or failure to perform its obligations which result from circumstances beyond its reasonable control, which shall include without limitation failure of Halo's suppliers to supply any items ordered by Halo for the purpose of fulfilling any contract. If such circumstances continue for a continuous period of more than 6 months, either party may terminate the applicable contract immediately by written notice to the other.
13.2 It is acknowledged by the Client that Halo has no control over the networks over which it will provide the Broadcasting Services or carry out any other Services.
14. Termination
14.1 Unless agreed otherwise in accordance with clause 4.6, each contract between the parties relating to the Services shall terminate at the end of the agreed period stated in the Contract. Save where any rights or obligations are stated to survive, Halo's obligations with respect to the Broadcasting Services, Lead Generation Services and Survey Services shall conclude on their proper provision.
14.2 Halo may terminate any contract or suspend the performance of any of its obligations if the Client does not pay the Fee as specified in the Contract within the agreed terms.
14.3 In addition to any other provisions allowing for termination of a contract, either party may terminate any contract between them immediately by written notice to the other in the event that any of the following occur:
(a) the other party commits any irremediable breach of a contract, or the other party commits any remediable breach of a contract and fails to remedy such breach within 30 days of its receipt of a notice from the terminating party specifying the breach and requiring it to be remedied;
(b) the other party ceases or threatens to cease to carry on its business;
(c) a receiver is appointed over all or any part of the assets or undertaking of the other party or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party or if any other person takes possession of or sells the other party's assets;
(d) the other party makes any arrangement for the benefit of its creditors;
(e) an order is made for the winding up of the other party or circumstances arise which entitle a court of competent jurisdiction to make a winding up order in respect of the other party or the other party goes into liquidation save for the purposes of a genuine amalgamation or reconstruction; or
(f) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986).
14.4 Termination of any contract shall be without prejudice to any other rights or remedies of the terminating party or any accrued rights of either party.
14.5 In the event of termination of a contract, the Client shall immediately cease using the Services (including any Database or Software) and shall within 14 days of the date of termination (i) in the case of physical Media, at Halo?s option return any physical Media (and any copies made under these Conditions) to Halo or destroy the same, or (ii) in the case of electronic Media or delivery by Extranet or FTP delete all copies of the Products from its computer systems and destroy any hard copies made. In any event the Client shall remove all copies of the Products and Software from its computer systems. If requested by Halo, the Client shall provide a declaration signed by a director certifying that it (and any Permitted Third Party) has complied with the provisions of this clause. If Halo is not satisfied that this clause has been complied with, it shall be entitled to enter the Client's property to verify the Client's compliance with this clause and/or to reclaim any items belonging to it.
14.6 Except as expressly provided or agreed with Halo at such time, the Client acknowledges and agrees that it has no right to cancel any contract after Halo has either (i) returned an Order Form signed by Halo to the Client, (ii) sent a confirmation of order to the Client (including by e-mail) or (iii) commenced performance of the contract.
15. General
15.1 These Conditions, together with the Order Form and any special terms set out on the same, and the Guidelines (where applicable) constitute the entire agreement between the parties relating to the Services ordered and supersede any prior discussions, negotiations or agreements whether written or oral in respect of the same. The Client acknowledges that, subject to clause 10.1 in respect of fraudulent misrepresentation, it has not relied on any representation by Halo that is not expressly included in these Conditions or on the Order Form.
15.2 If any provision of these Conditions or any part of the same shall be or become void or unenforceable for whatever reason, it shall be deemed deleted and the remaining provisions shall remain in full force and effect.
15.3 The Client may not assign its rights or delegate its duties without the prior written consent of Halo.
15.4 The Client agrees that during the subsistence of any contract and for an additional period of 6 months after its termination, the Client shall not directly or indirectly canvas with a view to offering or providing employment to (whether itself or in any subsidiary or affiliated company), offer to contract with or entice to leave Halo, any employee of or contractor to Halo engaged in the supply of the Services without the prior written consent of Halo. If the Client breaches this provision it shall pay to Halo by way of liquidated damages on the first day of such person's employment or engagement in whatever capacity with the Client (or any subsidiary or affiliated company) a sum equivalent to 22% of the employee's starting salary (including guaranteed bonuses and benefits) or (where such person is engaged otherwise than as an employee) a sum equivalent to 22% of the value of the relevant engagement.
15.5 Halo reserves the right to sub-contract any of the work required to fulfill the Client's order.
15.6 Unless specifically stated otherwise, any notice to be given under these Conditions shall be served by hand or sent by pre-paid registered letter or recorded delivery or by fax to the other party's address (or fax number) stated on the Order Form (in the case of a notice to the Client) or on these Conditions (in the case of a notice to Halo). Faxes set to Halo shall be sent to fax number 0870 88 00 889 and marked for the attention of the Finance Department. Notice served by hand during normal business hours shall be deemed served on delivery, or if outside normal business hours, on the commencement of the next working day. Notice sent by pre-paid registered letter or recorded delivery shall be deemed served 2 working days after posting. Notices sent by fax (together with evidence of successful transmission) shall be deemed served on delivery, or if outside normal business hours, on the commencement of the next working day. For these purposes, normal business hours mean 0900-1700 and working days mean Mondays to Fridays (inclusive), excluding public holidays, in each case in the United Kingdom.
15.7 Any delay or forbearance by Halo in enforcing any provisions of these Conditions shall not be construed as a waiver of such provision or Halo's right thereafter to enforce the same.
15.8 Nothing in these Conditions shall create, or be deemed to create, a joint venture or partnership or the relationship of employer and employee between the parties and unless expressly provided neither party shall be entitled to act as, or represent that it is, the agent of the other party for any purpose.
15.9 English law shall govern any contract between the parties and the parties submit to the exclusive jurisdiction of the English Courts.
15.10 Except as expressly stated in the Contract, the Contract is purely for the benefit of the parties to it and no third party shall have the right to enforce any of its terms. The consent of any third party shall not be required to amend, rescind or vary in any way the terms of the Contract.
|
