Barbour ABI : Terms and Conditions of Use

Definitions – The following terms shall have the following meanings:

Advertising Services

means all online, email or print based advertising in Barbour Product Search or any other advertising service offered by us from time to time.

Agreement

means the Order Form, any Selector Forms and these Terms.

Analysis Services

means data reports for bespoke research and/ or tailored analysis specific for your individual business the terms of which are governed by clause 6 of these Terms, which may include, without limitation, Backrun Data and Live Application Data.

Backrun

Means Information associated with planning applications in respect of which all building project work has been completed or abandoned (as the case may be).

Barbour ABI, us, our or we

means a trading name of Barbour ABI Limited, a company registered in England and Wales with company number 13427982 whose registered office is at 5th Floor, 133 Houndsditch, London, EC3A 7BX.

Client, you or your

means the person or entity listed as the subscriber or advertiser on the Order Form.

Controller

has the meaning given to it in the Data Laws.

Data Laws

means all applicable laws and regulations in force from time to time relating to the processing, free movement and privacy of personal data, including the General Data Protection Regulation (EU) 2016/679.

Delivery Point

means the postal address or email address (as applicable) stated on the Order Form (or as otherwise notified by you from time to time) as the delivery address to which the Information shall be delivered by us to you.

End User

means your employees or other individuals contracted by you as may be authorised to access and use the Information or Services strictly in accordance with this Agreement.

Entries

means information, images and representations related to your products, services, company, brand and trading names described in the Order Form to be published through our Advertising Services.

Information

means all information and data supplied by us to you under this Agreement (including Personal Data) whether supplied in a raw or processed format, or transmitted in electronic, online, disc, hard copy, email or any other form of media including but not limited to Analysis Services.

Intellectual Property Rights

means all copyright, patents, trade marks, trade secrets, rights in designs (whether registered or unregistered), database rights, know-how, rights to sue for goodwill or passing off, rights in domain names, moral rights and all other legal and beneficial intellectual and industrial property and similar rights of all types anywhere in the world and including all renewals, applications and registrations relating to any of the foregoing.

Live Application Data

means Information associated with planning applications in respect of which building project work and/or procedural processes remains ongoing and/or incomplete.

Personal Data

has the meaning given to it in the Data Laws.

Processing

has the meaning given to it in the Data Laws (and “Process” shall be interpreted accordingly).

Order Form

means the attached order form and any supporting documentation containing details of the Information, Services and/or Advertising Services you require from us.

Relevant Data

means such of the Information which comprises Personal Data.

Selector Form

means the form(s) completed and signed by you that notify us of the relevant Information and Services you require from us.

Services

means any software, computer program, or internet based service or Analysis service to be provided or made available by us to you for the purposes of performing our obligations under this Agreement.

Start Date

means the date on which we accept your order contained on the Order Form.

Subscription Period

means an initial period of 12 months (or such other period as may be agreed by us with you) starting on the Start Date followed thereafter by successive Subscription Periods of 12 months (or alternative agreed periods), unless and until terminated by either party in accordance with these Terms.

Term

means, in respect of the Advertising Services, the editions or periods during which Entries are to be included in the Advertising Services as set out in the Order Form. All of these editions or periods together shall form the Term of this Agreement unless it is terminated earlier in accordance with these Terms.

Terms

means these terms and conditions.

Total Costs

i. for Information means the fee for the initial Subscription Period as stated on the Order Form and for each subsequent Subscription Period means the amount notified by us to you before the commencement of such Subscription Period, the value of whose constituent parts shall be determined in our absolute discretion from time to time.

ii. for Advertising Services means the total cost stated on the Order Form which is payable for each edition or each other period of the Term

iii. for Analysis Services means the total cost stated on the Order Form.

Websites

means the Barbour ABI website at www.barbour-abi.com, the Barbour Product Search website at www.barbourproductsearch.info, or any other domain or URL controlled or managed by us.

1. Interpretation

1.1 The headings in these Terms do not affect its interpretation.

1.2 Unless the context otherwise requires: references to clauses are to clauses of these Terms; references to Barbour ABI and the Client include their permitted successors and assigns; references to statutory provisions include those statutory provisions as amended or re-enacted; references to one gender includes reference to the other; words in the singular include the plural and vice versa; references to a party’s obligation not to do something includes an obligation not to permit it or authorise it to be done, references to person means any individual, firm, association, corporation or other body or legal entity and any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words proceeding those terms.

1.3 In the case of any conflict or ambiguity between any provision of these Terms and any provision contained in the Order Form and/or Selector Form, the provision of these Terms shall take precedence followed by the Order Form, followed by the Selector Form.

2. Application of Terms

2.1 These Terms shall govern the relationship between us and you to the exclusion of all other terms and conditions. No terms or conditions endorsed on, delivered with or contained in the Order Form, Selector Form or other document shall form part of this Agreement unless agreed in writing by us.

2.2 The Client shall ensure that the details stated on the Selector Form and Order Form are complete and accurate.

3. Commencement and Duration

3.1 This Agreement will come into force on the date we receive a signed copy of the Order Form from you, at which point you will be deemed to have accepted these Terms. The Agreement shall continue thereafter in accordance with these Terms.

3.2 We will provide the Information, and where applicable the Services and/or Advertising Services, to you for the initial Subscription Period, after the expiry of which, this Agreement will continue automatically unless and until

it is terminated in accordance with clause 11.

3.3 We shall be entitled to terminate the Agreement for Advertising Services at any time, without liability to you, by giving you 30 days written notice. In these circumstances we shall refund to you any monies you have paid for the Advertising Services up to the point of termination.

3.4 The parties acknowledge that these Terms shall apply in force and effect to any trial period agreed by us at our discretion.

3.5 We shall have the right to make any changes to the Information and Services which are necessary to comply with any applicable law or regulatory requirement, or which do not materially affect the nature or quality of the Services.

4. Provision of Information

4.1 We shall provide the Information requested by you in the Selector Form in accordance with these Terms.

4.2 The Information may be available through various Services. We shall deliver the Information according to the Services requested by you on the Order Form. Subject to clause 3.6 any change in delivery format or media within Services shall be agreed in advance with you, and your agreement shall not be unreasonably withheld or delayed.

4.3 Subject to these Terms, we shall:

(a) provide the Information with reasonable skill and care;

(b) use reasonable endeavours to provide the Information to you in such a manner that it complies in all material respects with the Selector Form and the Order Form; and

(c) use reasonable endeavours to ensure that the Information is delivered to you at the frequency specified on the Order Form. Any dates specified by us for delivery of Information are intended to be an estimate and time for delivery shall not be of the essence and may not be made of the essence by you, whether by notice or otherwise.

4.4 By entering this Agreement we grant you a non-transferable, non-exclusive licence to use the Information and Services in accordance with these Terms. Upon termination of this Agreement, this licence will automatically terminate.

4.5 The Information shall be delivered to the Delivery Point or made available through the agreed Services unless otherwise agreed by the parties. You are responsible for notifying us in writing of any change in the Delivery Point and we shall not be held liable for any failure to receive or access the Information where you have not notified us with reasonable notice in advance. Where you subscribe to Information through Services consisting of an online facility, delivery shall comprise the allocation to you of username, password and permissions necessary to enable access to the Information. If applicable, you are responsible for the provision of and payment for the necessary computer, email and telecommunications services to receive and access the Information.

4.6 Where applicable, we shall provide you with names and passwords for the number of End Users stated on the Order Form. If you wish to register additional End Users (for which there may be an additional fee) please notify us in writing.

4.7 You agree that we are not responsible for the achievement of any purpose or results which you intend to obtain via use of the Information, whether or not such purposes or results are communicated to us. You further accept responsibility for the selection of the Information to achieve your intended results and, where applicable, shall ensure compatibility of the Information and Services with any hardware, software, products or services as may be required.

4.8 The Information and the Services are provided on an ‘as is’ basis. We shall use reasonable endeavours to ensure that the Information is correct at the time it is provided to you but this does not warrant the accuracy or completeness of the Information. You acknowledge that a substantial part of the Information is obtained from third party sources and that we cannot guarantee the accuracy of the Information. You also acknowledge that we may insert control projects in the Information at our discretion for monitoring purposes. Some data and/or material may have been omitted from the Information in order to increase its usability. The Information is not intended to be a complete collection of data and/or material and is not necessarily exhaustive in its range. The Information may include references to products, services, data or other material which are no longer relevant, current or available. In each case it is your responsibility to determine the extent to which they remain valid or relevant. We are not liable for any loss or damage you suffer as a result of treating the Information as complete or up-to-date or such other reliance on the
Information by you.

4.9 We shall have no obligation to notify you if Information provided is subsequently amended or becomes inaccurate or incomplete, nor shall we have any obligation to update or amend such Information.

4.10 We do not represent that use of the Information, Services, Websites or Advertising Services will be uninterrupted or error free. We may temporarily suspend the availability of the Websites or Services for upgrades and/or maintenance at our discretion. Save for emergency upgrades, repairs or maintenance (as determined by us), we shall use reasonable endeavours to ensure that any and all such suspensions are carried out at such times outside normal UK working hours and in such manner as to not materially interfere with your access to the Information or Services, or in the case of online Advertising Services other persons access and use of these.

4.11 You acknowledge that we shall be entitled to amend the format, presentation or content of the Information and Advertising Services including but not limited to the look and feel of internet based Services and the Entries without notice, provided this does not result in a material degradation of the Information and in respect of the Entries, provided that such changes do not materially affect the content supplied by you, nature, scope of, or the charges for the Entries.

4.12 If the performance of our obligations under this Agreement is hindered, prevented or delayed by any act or omission by you, your End Users, agents, sub-contractors or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such interference, prevention or delay.

4.13 In the event that you breach any of these Terms, we shall have the right to immediately suspend the provision of Information, Services or Advertising Services without notice. You shall indemnify us, on demand, against all reasonable costs, charges or losses sustained or incurred by us (including any direct, indirect or consequential losses, loss of profit and loss of reputation) arising directly or indirectly from your failure to perform or delay in the performance of any of your obligations under this Agreement, and/or from your fraud or negligence.

4.14 The Agreement is personal to you. You may not assign, sub-licence, sub-contract, transfer or otherwise dispose of any of your rights or obligations under this Agreement without our prior written consent (which may be reasonably withheld and in our absolute discretion).

5. Advertising Services

5.1 An order for Entries may be for an entry in any of the Advertising Services.

5.2 We shall produce Entries from the information supplied by you and shall include them in the Advertising Services as stated on the Order Form. We may pass relevant information that you provide to our sub-contractors and to anyone using the Advertising Services and we may collect relevant information from websites associated to your products, company, trade name and brands when compiling Entries.

5.3 Although the detail of Entries may vary between the different Advertising Services, we shall ensure that Entries conform to the standard presentation of other entries in the same product or service group in the same Advertising Service. The quality of any printing will be to a high commercial standard.

5.4 We reserve the right to make changes to copy or illustrations at any time during the production process to ensure that the Advertising Services editorial style is maintained.

5.5 If you fail to supply information as and when requested, we shall be entitled (at our option) to:

(a) include Entries in the Advertising Services using the most recent relevant information previously supplied to us; or

(b) omit the Entries from the Advertising Services.
Whichever option we chose, you are not relieved from your obligation to pay the Total Cost.

5.6 You acknowledge and agree that our sub-contractors and agents involved in the production process of our Advertising Services may process and hold copies of any information, material, images or other items relevant to the creation of the Advertising Services received by us from you, and you hereby grant them a licence to use any of your Intellectual Property contained within that for the purpose of compiling the Entries and generally fulfilling our obligations under this Agreement.

6. Analysis Services

6.1 Analysis Services shall be provided by Us to You as set out in the Order Form and in accordance with this clause 6 of these Terms.

6.2 The Total Costs and the time and duration of delivery of Analysis Services shall be as set out in the Order Form or as agreed between Us and You in writing.

6.3 The provision by Us of Analysis Services to You shall be governed solely by this clause 6 and the following clauses of these Terms;
Clauses 1.1, 1.2, 1.3, 2.1, 2.2, 3.1, 3.5, 3.6, 4.2, 4.3, 4.4, 4.5, 4.7,4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 7.1, 7.2, 7.3, 7.5, 7.6, 7.7 (a) and (b), 7.8, 7.9, 8.1 (a), (b), (e), (f), (g), (h), (i), 9.1, 9.2, 9.3, 9.4, 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 11.1 (a), (c), (d), 11.2, 11.3, 11.4, 12, 13, 14.1, 14.2, 14.3, 14.4, 14.5, 14.6, 14.7, 14.8, 14.9, 14.10, 14.11, 14.13

6.4 You acknowledge that the Analysis Services are merely commentary and opinion and you agree that that we are not responsible for the achievement of any purpose or results which you intend to obtain via use of the Information, whether or not such purposes or results are communicated to us.

6.5 The Analysis Services shall only be used by you or your employees; only for your own internal requirements; and only in the course of your business and you will not sell, publish or distribute outside of your business without prior permission in writing from Us and subject always to you correctly dating and referencing the source of such information as being credited as Barbour ABI.

7. Payment and Costs

7.1 You shall pay us the Total Costs for the Information, Services and/or the Advertising Services, together with VAT at the applicable rate.

7.2 Following submission of the completed Order Form to us, we will submit to you an invoice for the Total Costs which shall include details of our payment terms.

7.3 In respect of Information and Services, at the end of the current Subscription Period, and subject to termination in accordance with clause 3.2, we will submit to you an invoice for the Total Costs for the next Subscription Period.

7.4 In respect of Advertising Services, we will submit to you an invoice for the Total Costs for the next successive Term.

7.5 Payment of our raised invoices can be made by cheque (payable to Barbour ABI Limited and sent to Hinderton Point, Lloyd Drive, Cheshire Oaks, Cheshire. CH65 9HQ ; or BAC’s (HSBC Bank Plc; Account number 22233673; Sort Code: 40-05-20). Alternatively, you may arrange for payment to be made in monthly or quarterly instalments by way of direct debit or any other method agreed by us in writing, in which case clause 7.6 below will apply.

7.6 If payment is to be made by way of direct debit or any similar payment method agreed by us in writing, you must ensure that you complete the online direct debit mandate to which a link will be provided to you and/or make any necessary arrangements to set up that payment method. In the event that the direct debit mandate is not completed and submitted as required and/or the necessary arrangements have not been put in place within 14 days of us receiving the completed Order Form from you, then the total amount of our raised invoice shall automatically become due within 30 days of the date of such invoice (“Accelerated Payment Mechanism”). For the avoidance of doubt, the Accelerated Payment Mechanism will automatically take effect in the event that you fail to make payment in full of any instalment previously agreed pursuant to clause 7.5 above.

7.7 Without prejudice to any other right or remedy that we may have, if you fail to pay us any monies due on or before the due date, as specified on our invoices or payment schedules, we may at our sole discretion:

(a) charge interest on such sum from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and

(b) in respect of Information and/or Services, suspend provision of these until payment has been made in full. In circumstances where we suspend the provision of the Information and/or Services, the applicable Subscription Period will not be extended to account for such suspension nor will we be obliged to supply you with back copies of the Information relevant to the period of suspension; and

(c) in respect of Advertising Services withdraw all or any Entries from any or all of the Advertising Services until we receive all such monies in cleared funds. After we receive such cleared funds, if the Term is still in effect we will re-instate the Entries in the Advertising Services as soon as practicable.

7.8 Time for payment shall be of the essence of this Agreement. All sums payable to us under this Agreement shall become due immediately on its termination. This clause is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

7.9 We may, without prejudice to any other right we may have, set off any liability you have to us against any liability we have to you.
7.10 In the event that You have not previously purchased products or services from Barbour, the Services provided shall include 18 (eighteen) months’ of Backrun which shall be made available to You during the period up to and including the first anniversary of the Start Date and which shall be valued in accordance with our reasonable discretion by reference to our internal accounting processes from time to time.

8. Client Obligations

8.1 You warrant, represent and undertake that you shall and shall procure that all relevant third parties within your power or control shall:

(a) provide in a timely manner such information as we may request in relation to this Agreement and ensure that it is accurate in all material respects;

(b) ensure all End Users are informed of and comply with these Terms;

(c) allow only the number of End Users stated on the Order Form to access the Information and/or Services;

(d) ensure that each End User uses his/her own username and password for his/her own purposes only and does not divulge such name or password to a third party;

(e) use the Information and Services only for your own internal requirements and only in the course of your business;

(f) keep possession of and control over the Information, keep the Information confidential and not disclose or make available the Information or
Services to any third party;

(g) adopt and maintain appropriate security measures to prevent access to the Information by any third party and notify us immediately if you become aware of any authorised disclosure, use or
copying of the Information;

(h) ensure that any copyright notice, trade mark, trade name, marking or notice contained in the Information is not removed, amended or obscured; and

(i) maintain and provide to us upon request a complete and accurate record of your use of the Information.

8.2 You shall not, nor knowingly permit any third party to:

(a) misuse (including by introducing viruses or other harmful material) the Websites, Information, Services or Advertising Services;

(b) use, publish, reproduce, sell or distribute Information, Entries or access to Services other than in accordance with the permitted uses under this Agreement;

(c) reproduce or supply physical or electronic copies of the Information (or extracts of such), including but not limited to any third party;

(d) alter or attempt to alter the Information, Services, Websites or Advertising Services;

(e) attempt to gain unauthorised access to the Information, Services or protected areas of the Websites;

(f) copy the Information, Services, Websites;

(g) copy or use any of our registered or unregistered trade marks; or

(h) create or offer a competing product or service on the basis of the Information, Services, Websites or Advertising Services.

9. Intellectual Property Rights

9.1 All Intellectual Property Rights and all other rights in the Information, Services, Websites and Advertising Services are and shall remain the property of Barbour ABI.

9.2 You agree that the Intellectual Property Rights in the Information, Services, and Websites shall remain the property of us and that any goodwill or other right, title or interest arising from their use accrues solely for our benefit. You do not by virtue of this Agreement obtain any proprietary rights in the Intellectual Property Rights. You agree to, and shall use your best endeavours to procure that all relevant third parties do, all such acts and execute any documents as may be necessary to vest such Intellectual Property Rights in us.

9.3 You shall notify us promptly if you become aware of any use of the Information, Services or Website outside of the terms of this Agreement.

9.4 All rights (including copyright and database rights) in the Advertising Services and all rights in or attributable to those aspects of the Entries created by us, belong to us. You are not entitled to and shall not reproduce the whole or any part of the Advertising Services or any aspect of the Entries created by us without our written permission.

9.5 You shall indemnify us and keep us indemnified in respect of Advertising Services against:

(a) all liability and loss suffered or incurred by us arising out of claims made by any third party concerning the publication of any information supplied by you; and

(b) all costs and expenses, including legal fees, incurred by us in dealing with any such claim, including defending and/or settling it.

10. Limitation of Liability – Your Attention is Particularly Drawn to the Provisions of this Clause

10.1 This clause 10 sets out our entire liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:

(a) any breach of this Agreement;

(b) any use made by you of the Information and/or Services;

(c) any Entries published in the Advertising Services; and

(d) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

10.2 We, our employees, agents and sub-contractors shall not be liable for:

(a) any loss of, or damage to, any contracts, revenue, profits, business, goods, use, anticipated savings, goodwill or reputation you suffer;

(b) any loss of, or damage to, any data or computer program you suffer following the use of any Services or Information;

(c) any indirect or consequential loss or damage you suffer howsoever caused and whether arising under contract, tort (including negligence) or otherwise save as specifically stated in this Agreement.

(d) any liability, loss or damage (including any costs and expenses) arising out of any claim concerning the Information, Services or Entries made by any third party, except to the extent it relates to the proven infringement of that third party’s copyright by us and such infringement is not the consequence of using something supplied by you; or

(e) any loss of, or damage to, any material (including artwork) or information submitted to us. You shall insure all such material or information against all loss and damage whatsoever arising in any way whatsoever.

10.3 Our total liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising in connection with this Agreement shall be limited to the Total Cost paid by you for the relevant Information, Service or Advertising Service in which such liability arises.

10.4 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979), custom, course of dealings or by reason of circumstances in which the Agreement is made are, to the fullest extent permitted by law, excluded from this Agreement.

10.5 Nothing in these Terms purports to exclude or limit our liability for death or personal injury as a result of our negligence, fraud or fraudulent misrepresentation or any liability that cannot be excluded by law.

10.6 You acknowledge and accept that, due to the nature of computer hardware, we do not guarantee or warrant that Services or Information will be error-free or uninterrupted and therefore we are not liable for loss or damage as a result of any such errors or interruptions.

10.7 Each part of each of the clauses 10.1 to 10.6 is to be construed as a separate provision and each has effect notwithstanding:

(a) that any other part of that clause or the rest of the Agreement is held to be void, voidable or unenforceable; and

(b) the expiration or termination of the Agreement, even if we are in fundamental breach of the Agreement or in breach of a fundamental term.

11. Termination

11.1 Without prejudice to any rights that have accrued under this Agreement or any of our rights or remedies, we may, in the event that you breach any of the terms of this Agreement exercise at our discretion any of the following options:

(a) in respect of Information or Services, suspend provision of the Information or access to Services until the breach has been remedied. In circumstances where we suspend the provision of the Information, the applicable Subscription Period will not be extended to account for such suspension nor will we supply you with back copies of the Information relevant to the period of suspension; and/or

(b) in respect of Advertising Services, withdraw all or any Entries from any or all of the Advertising Services until the breach has been remedied. After the breach is remedied, if the Term is still
in effect we will re-instate the Entries in the applicable Advertising Services as soon as practicable for the remainder of the Term; and/or

(c) terminate this Agreement immediately upon written notice if you fail to remedy the breach within 30 days of written notice to do so; and/or

(d) terminate this Agreement immediately upon written notice if you repeatedly breach any of the terms of this Agreement in such manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to these Terms.

11.2 Either party may terminate this Agreement immediately upon written notice if the other enters into and/or itself applies for, and/or calls meetings of members and/or creditors with a view to one or more of a moratorium, administration, liquidation (of any kind, including provisional), or composition and/or arrangement (whether under deed or otherwise) with creditors and/or has any of its property subjected to one or more of appointment of a receiver (of any kind), enforcement of security, distress, or execution of a judgment (in each case to include similar events under the laws of other countries), is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, is dissolved as a partnership, or has passed a resolution for its winding up, except for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all the previous entity’s obligations under this Agreement, is declared insolvent or has an order for its bankruptcy, winding up or administration made by a court, or ceases to carry on its business or substantially the whole of its business.

11.3 We may terminate this Agreement immediately upon written notice to you if you undergo a change of ownership or control to which we object. For the purposes of this clause control shall have the meaning attributed to it in section 995 of the Income Tax Act 2007.

11.4 On or after the expiry of the initial Subscription Period, either party may terminate this Agreement on giving written notice of not less than 90 (ninety) days to the other party.

11.5 In the event of any termination of this Agreement, within fourteen (14) days after such termination, you shall: (i) pay any monies outstanding under this Agreement up to the effective date of termination; (ii) discontinue all use of the Information and Services; (iii) erase or destroy any Information contained in the computer memory or data storage apparatus under your control; (iv) return to us or destroy, at your expense, the Information, including all copies thereof, and (v) deliver to us a certification, in writing signed by an officer of the Client, within thirty (30) days of the termination of this Agreement, that the Information and all copies thereof have been returned or destroyed, as requested by us, and their use discontinued.

11.6 In addition to your obligations under clauses 11.5, on termination of web based Advertising Services by you, or by us as a result of your breach of contract, you shall pay to us the sum of 50% of the remaining Total Costs for the Term by way of liquidated damages together with the value of any discounts given in previous years of the Term.

11.7 The parties confirm that the sums set out above at clause 11.6 represent a genuine pre-estimate of loss that Barbour ABI would suffer in the event that this Agreement is terminated either by you, or by us as a result of your breach of contract.

12. Data Protection

12.1 You warrant and represent that you shall comply with your obligations under the Data Laws with regard to your obtaining and Processing of the Relevant Data.

12.2 It is acknowledged and agreed that (without affecting our status as a Controller in respect of the Relevant Data which is also retained by us) you shall be a controller in respect of the Relevant Data.

12.3 In your capacity as Controller of the Relevant Data, you shall (without prejudice to clause 3 above):

(a) where required to do so under the Data Laws make notification(s) to the applicable regulator or authority in relation to your Processing of the Relevant Data;

(b) ensure that only your properly authorised personnel shall have access to or Process the Relevant Data and that such personnel have entered into appropriate contractually-binding obligations to keep the Relevant Data confidential;

(c) ensure that, if and to the extent applicable, all fair processing notices have been given (and/or, as applicable, consents obtained) as required in accordance with the Data Laws for your Processing of the Relevant Data; and

(d) implement and maintain technical and organisational security measures against the unauthorised or unlawful Processing of the Relevant Data and against the accidental loss or destruction of,
or damage to, the Relevant Data sufficient to comply at least with the obligations imposed by the Data Laws.

12.4 Where we notify you that any data subject (as defined in the Data Laws) whose Personal Data forms part of the Relevant Data has exercised their right to erasure of their Personal Data, you shall promptly take all necessary steps to comply with the exercise of such right.

12.5 Each party will (at its own cost) provide any cooperation or assistance reasonably requested by the other in connection with steps that a party takes to comply with Data Laws insofar as they relate to this Agreement or the Relevant Data.

12.6 Without prejudice to the generality of clause 12.1, you shall maintain complete and accurate records and information to demonstrate your compliance with the Data Laws regarding Relevant Data, including such records as are required to be maintained pursuant to the Data Laws. You shall make available to us all information reasonably requested by us to demonstrate your compliance with the obligations set out in this clause 12. You will allow for and contribute to audits, including on-site inspections of your business premises or processing facilities, conducted by us or an auditor of our choice to assess your compliance with the Data Laws and the obligations set out in this clause 12. The process of such audits will be determined by us in consultation with you.

12.7 You shall, without undue delay, enter into such additional agreements with us and/or agree to such amendments to the Agreement as may be required to comply with the Data Laws.

12.8 As a result of the performance of our obligations under this Agreement, we may obtain data about you, your End Users or other individuals connected with you. You authorise us to store this information and use it in accordance with this Agreement and to pass it onto our sub- contractors where necessary to allow us to comply with our obligations under this Agreement. You acknowledge that we may use such data for the purposes of marketing our products and services, subject to obtaining the requisite consents from relevant End Users if you or your End Users could be identified from this.

12.9 Where End Users are accessing online Services or are otherwise (directly or indirectly) providing their personal data to us, you shall be responsible for ensuring that the relevant End Users and other relevant individuals are aware of the provisions of this clause 12 and have read and agree to the privacy policy appearing on our Websites.

13. Force Majeure

We shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a transport network, act of God, war, riot, civil commotion, malicious damage, terrorist act, epidemic, compliance with any law or governmental order, rule, regulation or direction, the Information becoming unobtainable or its use no longer being permitted by operation of law or otherwise, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

14. General

14.1 The Agreement represents the entire agreement between the parties and supersedes and replaces all representations and other arrangements, understandings, promises or agreements between you and Barbour ABI concerning the Information, Services, Advertising Services and Websites, even those made contemporaneously with this Agreement.

14.2 The Agreement will supersede any prior agreement for the supply of the same Information or Services or Advertising Services for the same period as set out and listed on the Order Form.

14.3 No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.

14.4 Our rights and remedies under this Agreement are in addition to any other right or remedy available to us.

14.5 The failure of a party to exercise a right or remedy does not constitute a waiver of that right or remedy or any other, or a variation of this Agreement, and nor does any delay by a party in exercising any right or remedy. The other party shall not rely on any such failure or delay as constituting such a waiver or variation, or as preventing the exercise of any right or remedy.

14.6 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

14.7 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 will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

14.8 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement. We are entitled to subcontract our obligations under this Agreement or assign the benefit of this Agreement to any person.

14.9 Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

14.10 No person, other than a party to this Agreement, and their respective successors and permitted assigns, shall have any rights to enforce any term of this Agreement.

14.11 Notice given under this Agreement shall be in writing, sent for the attention of the person, and to the postal address, email address or fax number, given in the Order Form or such other postal address, email address, fax number or person as the relevant party may notify to the other party and shall be delivered personally, sent by email or fax or sent by pre-paid, first-class post or recorded delivery. Subject to clause 14.12 a notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of email and fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this clause 14.11 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by email or fax, to the fax number or designated email address (as the case may be) of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

14.12 You acknowledge that to terminate this Agreement in accordance with clause 3.2, you must send written notice of termination to us either by (i) registered post; or (ii) by couriered letter signed by our representative upon receipt of delivery.

14.13 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter except that we are entitled to apply to the courts of any jurisdiction for an injunction or equivalent remedy.

BY SIGNING THE ORDER FORM YOU ARE ACCEPTING THESE TERMS AND CONDITIONS AND CONFIRMING YOU ARE AUTHORISED TO ACCEPT THESE.

Last updated: 1st October 2024