Terms & Conditions

Smith’s Clarity Solutions

Studio 4, Capitol House, 4-6 Heigham Street, Norwich NR2 4TE

1. Data and Services Terms & Conditions

1.1. DEFINITIONS

The terms below shall have the following meanings unless stated otherwise.

Smith’s Clarity Solutions (SCS) means our business. We are the broker of Data Records.

Agent (“or Agency”) means a person or company which conducts Managed Marketing Services on behalf of End Customers/Clients.

Agreement means the Order Form and/or Invoice Form along with these Terms and Conditions.

Certificate of Destruction means a document signed by the You (Client) confirming You have deleted or otherwise destroyed any Data Records supplied by Smith’s Clarity Solutions.

Client means You – business or person named on the Invoice/Order Form received from SCS within the Customer Information section of the Invoice or Order form.

Commencement Date means the Commencement Date which is the date of the invoice provided to the Client/End Customer. OR when Order Form is signed by You.

Contract Year means each successive period of twelve months commencing on the Commencement Date and then on each anniversary of the Commencement Date.

Data Owner means the companies we approach to purchase the Data Records our Clients require for their business.

Data Records means any general business information supplied by SCS which includes, company name, mailing address, telephone numbers, email addresses and other related information.

Data means any or all information supplied by Smith’s Clarity Solutions to You.

Data Counts means a process performed by Smith’s Clarity Solutions to identify Data Records of interest to the Client in relation to industry sectors, company size, geographical locations and contacts.

Data Fields means the specific pieces of information that may comprise of a Data Record supplied by Smith’s Clarity Solutions. These fields will be outlined via electronic communication before the order is confirmed.

Data Protection Requirements means the General Data Protection Regulation, Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426), as amended, re-enacted, extended or replaced from time to time. This also covers any other legislation applicable to privacy and the processing of personal information.

Direct Marketing means any form of marketing of your products or services by telephone, fax, email or direct postal mail. Also covered are market research, profiling, and any other pre-sales activities which support Direct Marketing.

Data Matching means any process where an enquiry is made in relation to a record sourced by Smith’s Clarity Solutions from a data owner, for a Client to ascertain where a corresponding Data Record (whether or not accurate or complete) appears in any other Database sourced by Smith’s Clarity Solutions.

Email Campaign means the transmission of electronic mail for direct marketing communications either by Smith’s Clarity Solutions or the Client.

Emails Means email addresses included within the Data Records supplied by Smith’s Clarity Solutions.

End Customer means any person or company to whom SCS supplies Data Records to (either directly or through an Agent) along with any services.

Force Majeure means any circumstances, events or causes beyond the party’s control which includes accidents, explosions, fires and any legislation, regulation or order which materially restricts the licensing of the data supplied by Smith’s Clarity Solutions (broker) or data owner to the Client.

Intellectual Property Rights means all trademarks, copyright, database rights, domain names, moral rights, rights in inventions, patents, rights in confidential information, and any other equivalent rights or forms of protection in any part of the world in each case whether registered or unregistered.

Invoice means the form submitted to the client which will be supplied along with these terms and conditions and outlines the agreed order, data license and payment amount.

License means the term of the contract between SCS and the Client. This License period will be stipulated on the Order Form and/or Invoice.

Managed Marketing Services means the conducting of Direct Marketing or Email Marketing on the behalf of the End Customer/Client, using Data Records supplied by SCS but not releasing those Data Records to the End Customer for their own use. For clarity, a mailing house or email delivery service provider is a Managed Marketing Service.

Misuse means Data Records being used outside the terms of this Agreement or failing to comply with Data Protection Regulations. Misuse is normally identified through Seed Records or complaints.

Order Form means the form submitted to the Client which will outline the length of the Data License along with the agreed price for the data records and/or services.

Permitted Uses means the allowed use of Data Records supplied by SCS as set out on the Invoice and/or Order Form.

Single Use License means any Data Records supplied by Smiths Clarity Solutions can be used once by the Client by means of making contact with the Data Records within the license period.

12 Months Use means the type of use which is stated on the Invoice and/or Order Form. The Data Records can be used by You for 12 months from the Commencement Date within the terms of this Agreement.

Seed Records means a dummy or imitation Data Record (which looks and responds like a real Data Record supplied by SCS) that is inserted into the Data, set to monitor Usage of any Data Records supplied by SCS to identify misuse and ensure compliance.

Services means any or all of the Data Records and/or email campaigns described via email communication to the client or by order form/Invoice Form.

Suppression Data means Data Records collected by the Data Owner who have indicated a wish not to receive marketing material/communication from third parties.

Total Price means the amount specified on the Invoice or Order Form sent to the client indicated in the field marked as ‘Total’.

Usage means the Single-Use or a period of use of the data permitted under this agreement as set out in the Order Form or Invoice.

1.2. In this Agreement unless the context otherwise requires:

1.3. Data subject, processing and personal data shall bear the meanings given to those terms in the Data Protection Requirements;

1.4. A reference to a statute or statutory provision is a reference to it as extended, amended or re-enacted from time to time;

1.5. the singular includes the plural and vice versa;

1.6. any words following the terms “include”, “including”, “in particular” or “for example” or any similar words/phrases shall be construed as illustrative and shall not limit the generality of the related words; and

1.7. References to a party or parties shall be the parties to this Agreement.

For the purpose of this contract “We”, “Us”, “Our” or “SCS” means Smith’s Clarity Solutions. “You”, “Your”, “You’re”, “Licensee”, Purchaser”, “Client” or “End Customer” for the purpose of this contact means the organisation, company, firm or person addressed within the order form or invoice form identified within the ‘customer information’ section.

2. TERM

The agreement shall commence on the commencement date which for the purposes of this contract will be the date signed on the Order Form or when payment of the Invoice amount by the Client is received and shall continue until the end of the Data Usage/License, unless terminated earlier in accordance with section 10 or unless;

2.1. Client continues to use the data beyond the Usage/License; or;

2.2. Client fails to comply with clause 11.2.2 (destruction of data on termination) and/or 11.2.4 (certification of destruction of data), in each such case and without prejudice to SCS’s other rights, the Agreement shall be extended automatically for 12 months period(s) and SCS may charge the client (as applicable) an appropriate fee upon each such extension.

3. DATA AND SERVICES

3.1. SCS and the Data Owner hereby grants to the Client a non-exclusive, non-transferable and non- sublicensable license to combine Data Records supplied under this Agreement with other data that Client is entitled to hold to generate Client Consolidated Data which the Client may use for its own direct marketing purposes only.

3.2. Client shall not use or supply Data Records supplied by SCS for any purposes except as expressly permitted in this Agreement. In particular, but without limitation, You shall not supply any Data Records provided by Us to any third party (including any companies in the same group of companies as Client) for any purpose.

3.3. You hereby agree not to send more than twelve (12) communications to any Email in any consecutive twelve (12) month period and/or send more than 4 (four) communications to any email in any one calendar month.

3.4. Client shall ensure that any data records supplied by SCS will remain easily identifiable from your own Data Records and are capable for being extracted and destroyed. Easily identifiable means being clearly and unambiguously flagged or marked.

3.5. You shall only make copies of Data Records supplied by SCS to the extent reasonably necessary for back-up, mirroring, security, disaster recovery and testing purposes.

3.6. You agree upon commencement of the Agreement that you are responsible for ensuring the data supplied by Us is kept up-to-date and secure for the duration of the License. During this period, it is your responsibility to keep a Suppression File of any person which unsubscribes from marketing communication from you. You also have the responsibility of checking the phone numbers against the TPS/CTPS registers for the duration of the License.

3.7. You acknowledge that Data Records supplied under the agreed License set out in the Invoice or Order Form may contain Seed Records to monitor Usage. Seeds Records are included to indicate misuse of Data Records supplied by SCS to You. If it has been indicated that a Seed Record is being misused by the Client, then it shall be construed that that the Client is Misusing the entirety of the Data Records supplied by SCS. In which case We will make You aware of the Misuse.

3.8. If Misuse persists beyond 7 days of date of this notification, SCS shall:

3.8.1 Where the Misuse is You communicating to a Data Record Email more than 12 times but less than 18 times (in the case of ’12 Months License’ Usage) or more than once (in the case of ‘single use’ Usage), You shall be invoiced for the original Invoice amount, i. e. a duplicate sum. This will enable SCS to purchase a new License from the Data Owner.

3.8.2 Where the Misuse is You communicating to a Data Record with no current License, We shall issue an Invoice for 1.5 times the original sum. This shall enable Us to reissue a License to You for a repeat term, or,

3.8.3 Where the Misuse constitutes a breach or suspected breach of Data Protection Requirements, We shall issue a processing fee of 2 times the original sum alongside a cessation order.

4. DELIVERY

4.1. SCS shall deliver the Data Records as set out to the Client via email communication. Data Records will be sent to the Client via a secure download link to Your email in an excel attachment or .CSV format. Any dates or times are estimates only and time for performance by SCS shall not be essence of this Agreement.

4.2. You acknowledge that not each Data Record supplied by Us contains all Data Fields, however, SCS will use reasonable endeavours to ensure that You have as many of those Data Fields as exist in relation to each business.

5. PAYMENT

5.1. Client shall pay SCS the Total Price as set out in the Order Form or Invoice. If Your Data Records are supplied upon signed Order Form, any delay in payment of sums beyond 30 days from the due date shall result in the sum bearing interest at the rate of 4% above the base rate from at the time from the Royal Bank of Scotland.

5.2. Without prejudice to clause 10.1.3, in the event Client fails to make any payment under this Agreement by its due date, SCS shall be entitled to suspend delivery of the Data and/or provision of services outlined in the Order Form or Invoice.

6. CLIENT OBLIGATIONS

6.1. You shall notify Us in writing, immediately upon the occurrence of a change of control of Client or Client’s holding company.

6.2. Client shall keep, in paper and electronic form, at its normal place of business detailed, accurate and up-to-date records sufficient to enable SCS to verify Client’s compliance with the provisions in this Agreement relating to the Data License, Data Protection, Intellectual Property and Confidentiality.

6.3. Client shall, on reasonable written notice in advance allow SCS or the Data Owner or any auditors or other advisors to SCS or the Data Owner, to access any of the Client’s premises, personal, relevant records and systems as may be reasonable required to verify Client’s Compliance with the provisions as detailed in clause 6.2 and shall provide SCS or the Data Owner with reasonable co-operation and assistance. We and/or the Data Owner will make all endeavours to ensure the Client is not unreasonably disturbed within any such verification process.

6.4. SCS’s and the Data Owners rights to clause 6.3 shall continue for 2 years after the termination of this Agreement. Any costs associated with this process shall be borne by Us or the Data Owner unless the verification reveals a material failure by the Client to comply with the provisions of this Agreement. In such a case, the Client shall reimburse SCS and/or the Data Owner for its costs on demand.

6.5. Under the Permitted Use Agreement, We shall require You or the End Customer to sign and return a Certificate of Destruction Form upon of the End of the 12 Months License. We shall send the Certificate of Destruction Form directly to you on the 12-Month of Purchase and we require signed confirmation the Data Records have been destroyed within 30 calendar days of receiving the Certificate of Destruction.

6.6. Notwithstanding any other provision of the Agreement, failure by the client to comply fully with clause 6 will entitle SCS without prejudice to its other rights to terminate the Agreement with immediate effect.

7. DATA PROTECTION

7.1. You acknowledge that the Data Records supplied may include personal information and that in accordance with the Data Protection Requirements, both SCS and Client shall act as data controller in respect of such personal data, as, without prejudice to the terms of this Agreement, they will each separately determine the purposes for which and the manner in which such data is processed. For the avoidance of doubt, You shall not be processing any personal data on behalf of SCS, under this Agreement.

7.2. Both SCS and Client at all times will comply with the Data Protection Requirements in relation to the Data Records.

7.3. If you receive any compliance, communication or notice that relates directly or indirectly to the processing of the Data Records or to either party’s compliance with Data Protection Requirements (as it relates to the data) you shall notify SCS immediately and provide full details and copies of any communication. You shall use reasonable endeavours to work with SCS to remedy the situation.

7.4. You shall indemnify on demand SCS for any cost, claim or expense arising as a result of you (a) breaching any of the Data Protection Requirements; or (b) causing SCS to be in breach of any of the Data Protection Requirements.

8. INTELLECTUAL PROPERTY RIGHTS

Client acknowledges that all Intellectual Property Rights in the Data Records are property of the Data Owner. The Client shall have no rights in or to the Data Records other than the right to use it in accordance with the express terms of this Agreement.

9. CONFIDENTIALITY

Neither of the parties hereto shall disclose or publicise to any third party, during or after this Agreement is terminated, the subject matter or content of this Agreement without prior written consent of the other (which shall not be unreasonably withheld or delayed), although the fact that you use the Data Records is not confidential information. The receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors on a need to know basis. Any party who confidential information shall also agree to this Confidentiality clause.

10. TERMINATION

10.1.1. Without affecting any other remedy or right available to it, this Agreement may be terminated by SCS;

10.1.2. on giving at least 30 days’ prior written notice to Client in the event of any legislation, regulation or order which materially restricts the provision or licensing of the Data Records by SCS to You; or

10.1.3. on giving at least 30 days’ prior written notice to Client in the event of a change of control of Client or of any holding company of the Client; or

10.1.4. on giving at least 14 days’ prior written notice if Client is late in paying any instalment of the Total Price.

10.2. Without affecting any other remedy or right available to it, this Agreement may be terminated by either party on giving written notice to the other if;

10.2.1. the other party commits a material breach of the Agreement (for example), but without limitation, any breach of Clause 8 (Intellectual Property) or Clause 9 (Confidentiality) and (in the case of a breach capable of remedy) fails to remedy such breach within 30 days of written notice request the breach to remedied; or

10.2.2. the other party is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of reconstruction or amalgamation of the company), or commences negotiations with its creditors with a view of rescheduling its debts of entering into an compromise or arrangement with its creditors (other than for the purpose of a scheme for a solvent reconstruction), or has a receiver or manager or administrator appointed of its assets or ceases for any reason to carry on business.

11. CONSEQUENCES OF TERMINATION

11.1. Termination of the Agreement for any reason shall not affect the accrued remedies, rights, obligations or liabilities of the parties existing at expiry or termination.

11.2. Upon any expiry or termination of this Agreement;

11.2.1. the rights under this Agreement shall immediately cease and terminate and Client shall immediately cease all use of the Data Records;

11.2.2. Client shall destroy all confidential information, all SCS Data Records, all copies of Data Records and all material relating to the Data Records in all systems. However, You shall be able to keep any Data Records supplied by SCS that are now your clients or have opted in to your previous marketing campaigns;

11.2.3. each party shall settle all monies due and payable by it to the other at the time of termination.; and

11.2.4. Client shall with 28 days of termination confirm to SCS in writing (signed by an officer) that it has fully complied with its obligations in clause 11.2. This will be the Certificate of Destruction Form.

12. WARRANTIES

12.1. SCS warrants that is has the right to grant you the license of the Data Records as specified in this agreement.

12.2. SCS will use all reasonable efforts to ensure that Data Records supplied by the Data Owner are as complete and accurate as reasonably possible. However, You acknowledge that the completeness or accuracy of the Data Records supplied by Us from the Data Owner relies upon periodic verification by the Data Owner and the Data Records may not be complete or accurate for a number of reasons, including, but not limited to, if businesses are created or fail between the Data Owners periodic verification process, or if businesses request that they are not included within the Data Records. SCS does not accept any responsibility or warrant the Data Owners Data Records and/or the Data is accurate, complete, reliable, useful, fit for purpose or timely.

12.3. Except as expressly stated in this Agreement, all warranties, terms and conditions, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.

13. LIABILITY

13.1. Neither party limits or excludes liability to the other party for; (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) in respect of your liability to SCS, infringement of SCS’s intellectual property rights in the Data Records; (iv) misuse of confidential information, or (v) any matter in respect of which it would be unlawful for the parties to exclude liability.

13.2. Subject to clause 13.1, neither party shall in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty however arising), misrepresentation (whether negligent or innocent), restitution or otherwise, for (i) any loss of profits (whether direct or indirect), business, business opportunities, turnover, revenue, goodwill or reputation; (ii) any loss (whether direct or indirect) under or in relation to any other contract; (iii) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time), or (v) any indirect or consequential losses.

13.3. You acknowledge that damages may not be an adequate remedy for the resulting losses suffered by SCS arising out of a breach of this Agreement and the SCS is entitled to injunctive relief in relation to any such breach or threat of a breach.

13.4. Neither party shall be in breach of this Agreement or liable for delay in performing, or failure to perform, any of its obligations under this Agreement if that delay or failure results from Force Majeure. In these circumstances, the parties will be entitled to a reasonable time extension for performing its obligations.

14. NOTICES

14.1. Any notices to be given to a party under this Agreement shall be in writing with proof of delivery and shall be delivered to the address of each party as set out on the Invoice Form, or as notified to the other party from time to time.

14.2. Notices under this Agreement shall be made by (a) first class prepaid mail, providing proof of delivery or postage; or (b) by hand or reputable courier, in either case addressed to the recipient at its notice address.

15. GUARANTEE

15.1. We provide a full guarantee for the Data Records We supply. If any Data Records supplied are incorrect, We shall replace or refund those Records for you. This guarantee is in place once You have provided us with notice of the incorrect Records and we will endeavour to replace or refund any Records within 24hrs.

15.2. This guarantee extends for 90 days from the date of Purchase.

16. MISCELLANEOUS

16.1. Neither party is the agent nor representative of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose.

16.2. This Agreement constitutes the whole Agreement between the parties and supersedes and extinguishes all previous agreements, promises, warranties, assurances understandings and representations between them, whether written or oral, relating to its subject matter.

16.3. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

16.4. The rights and remedies of the parties in connection herewith are cumulative and are not exclusive of any rights or remedies provided by law.

16.5. No provision (or part provision) of this Agreement shall be amended by either party without prior written consent.

16.6. Without our prior written Agreement You shall not be entitled to assign, sub-contract, sub-license, charge or otherwise part with any of its rights or obligations arising under this Agreement.

16.7. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

16.8. This Agreement shall be construed in accordance with and governed by the Laws of England and Wales and the parties hereto submit to the non-exclusive jurisdiction of the English Court.

16.9. Acceptance of these Terms & Conditions and the Agreement overall between SCS and You is enforced upon receiving payment from You of the Invoice amount for the supply of Data Records. It will be construed that upon receiving payment from you of the Invoiced amount, you have read and accept these Terms & Conditions.

 

Smith’s Clarity Solutions, is a trading name for William Smith (proprietor), registered in England.

Registered Office – Studio 4, Capitol House, 4-6 Heigham Street, Norwich, Norfolk, NR2 4TE