These Terms and Conditions (“Terms” or “agreement”) set out the terms on which Tussell Limited (incorporated and registered in England and Wales with company number 09454393) whose registered office is at 25 Moorgate, London EC2R 6AY (“Tussell”) licences use of the database known as Tussell Insight to you (“Customer” or “you”).
We licence use of the Services, the Database and Documentation to you on the basis of these Terms. We remain the owners of the Database and Documentation at all times.
You understand that by proceeding with use of the Services you agree to be bound by these Terms. These Terms shall apply and prevail over any inconsistent terms or conditions contained, or referred to any other document supplied by you, or implied by law, trade custom, practice or course of dealing.
1. In this agreement the following terms have the following meanings:
“Authorised Users” means the partners, employees and consultants of the Customer;
"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 5;
"Documentation" means any FAQs, manuals and materials (in whatever format) supplied by Tussell to aid the use of the Database;
"Fee" means the monthly licence fee that is payable for a Subscription agreed between Tussell and you;
"Intellectual Property Rights" means all copyright, patent rights, trade or service marks, design rights, rights in or relating to databases, rights in computer product, rights in or relating to confidential information or any other intellectual property rights (whether registered or unregistered) throughout the world, including all rights of reversion and rights to any applications and pending registrations;
“Order” means an order or request from you to use the Services for the Fee;
“Database” means the database known as “Tussell Insight”;
“Purpose” has the meaning set out in clause 2.2;
“Services” means the provision of the Database and the Documentation and the related services;
“Start Date” means the date from which the Services are provided in accordance with these Terms;
“Subscription” means a licence to use the Services on these Terms following payment of the Fee;
“Trial” means a licence to use the Services on a non-fee-paying basis for the Trial Period on these Terms;
“Trial Period” means the period agreed by Tussell from time to time;
1.2 The headings in this agreement are inserted for convenience only and shall not affect its construction or interpretation. Words importing the singular include the plural and vice versa. Words importing a gender shall include all genders.
1.3 Reference to any statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under them as from time to time amended, consolidated or re-enacted.
2.1 In consideration of you agreeing to be bound by these Terms, and subject to any restrictions set out in these Terms (including, without limitation, clause 2.2 below), Tussell grants to you and the Authorised Users a limited, non-exclusive, non-transferable licence to access and use the Services (a) in the case of an Order for the duration of the Subscription ) and (b) in the case of a Trial for the duration of the Trial Period.
2.2 You may use the Services for your own business purposes only ("Purpose"). Subject to the obligations in clause 2.3 below, you may use the materials generated from the Services for the Purpose for external publication subject to written acknowledgement in the publication of Tussell being the provider of the information.
2.3 Except to the extent set out in this clause you: (a) may only use the Services for the Purpose and for no other purposes; (b) may not allow third parties access to the Services or to the Customer’s user names and passwords; (c) may not use the Services on behalf of any third party (which includes providing any service to a third party using the Database); (d) will not modify, adapt or create derivative works from the Database and the Documentation or copy the Database or Documentation; (e) will not reverse-engineer or decompile the Database; (f) will use your best endeavours to prevent unauthorised access to the Database and unauthorised access, use or copying of the Database or Documentation (or any part of them) and will notify Tussell immediately if you becomes aware of any such unauthorised access, use or copying by any person; and (g) will take reasonable steps to ensure that nobody other than Authorised Users accesses the Database.
2.4 Without limiting this clause 2. and any other restriction in this agreement, you will not use or analyse the Database in order to analyse the way in which the Database operates or the methodology behind the Database, whether as a means of developing a competing service (either by itself or using a third party to do so) or for any other purpose.
3.1 The Fees for a Subscription are payable in accordance with the terms set out in the Order.
3.2 If Tussell has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Tussell:
(a) Tussell may, without liability to the Customer, suspend the access of the Customer to all or part of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
3.3 All amounts and fees stated or referred to in this agreement (a) shall be payable in pounds sterling; (b) are non-cancellable and non-refundable and (c) are exclusive of all taxes (including, without limitation, value added tax and withholding tax) which shall be added to Tussell's invoice(s) at the appropriate rate.
3.4 Tussell shall be entitled to increase the Fees on not less than 60 days' prior notice to the Customer.
4.1 Tussell will provide you with access to the Services for the duration of the Subscription in the case of an Order and for the Trial Period in the case of a Trial.
4.2 Tussell warrants that it has the right to grant the licences expressly granted by it under this agreement and that you will not infringe any third party Intellectual Property Rights by using the Services. The Database contains public sector information (a) licensed for use by the UK Government under the Open Government Licence v3.0 and/or (b) from the EU Tenders Electronic Daily website licenced for re-use by the European Commission.
4.3 Tussell will, during the term of a Subscription, provide the Customer with telephone and online support as available, but the Customer agrees that no commitments in terms of support availability, response or resolution times are given.
4.4 Tussell will be under no obligation to provide any enhancements or updates to the Database. Tussell may provide enhancements or updates of the Services to the Customer at its absolute discretion. Any such enhancements or updates of the Services will be subject to the terms and conditions set out in this agreement.
4.5 The Customer will be responsible for ensuring it has compatible browser and functioning internet connections and for the hardware, operating system and related software required to access the Services.
4.6 The Customer will be solely responsible for the security, and for the back-up, of its own data and Tussell will have no liability for any loss or corruption of any such or data, however caused.
4.7 Except as expressly provided in this agreement, no other warranties, undertakings, conditions or terms of any kind, whether express or implied, statutory or otherwise will apply, and all warranties, conditions, terms or other undertakings implied at law or by custom as to the condition, quality, performance, satisfactory quality or fitness for purpose of the Services or any part thereof are excluded. In particular:
(a) you assume sole responsibility for results obtained from the use of the Database and for conclusions drawn from such use;
(b) no condition, warranty, representation or other term is given or entered into to the effect that that use of the Services will be uninterrupted or error-free or that they will perform to or operate in accordance with any particular standard.
5.1 All Intellectual Property Rights in and relating to the Database and Documentation belong to Tussell and/or its licensors. The Customer shall have no rights in or to the Database and Documentation (including any Intellectual Property Rights therein) other than the right to use them in accordance with the terms of this Agreement.
5.2 The receiving party agrees not to use Confidential Information of the other party except as necessary for the performance of this agreement. The receiving party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information. The receiving party agrees to take all reasonable precautions to prevent any unauthorised disclosure of Confidential Information of the other party including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this clause, and (iii) who are informed of the non-disclosure obligations imposed by this clause and the receiving party will take appropriate steps to implement and enforce such non-disclosure obligations.
5.3 The confidentiality obligations in this Clause do not apply to information which: (a) is or becomes known by the receiving party without breach of any obligation to maintain its confidentiality; (b) is or becomes known to the public through no act or omission of the receiving party; (c) is independently developed by the receiving party without the use of any Confidential Information; or (d) is disclosed in response to a valid order by a court or governmental body, if prior to such disclosure, the receiving party gives written notice to the other party, so as to afford it the opportunity to object. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
5.4 The Customer agrees that Tussell may refer to the Customer as a user of the Services on its website and its marketing materials in print, online and on social media. The parties anticipate that Tussell may wish to use the Customer as a case study or other form of marketing reference for the Database, subject to the agreement of the parties (acting in good faith) as to the content of such materials. Except as set out above, each party will keep the existence, terms and nature of this agreement, and the discussions between the parties, confidential and will not release or make any public statement, advertisement or other disclosure with regard to this agreement without the prior written consent of the other party.
6.1 Neither party's liability (a) for death or personal injury caused by its negligence or the negligence of its employees or agents; (b) for fraud or fraudulent misrepresentation; or (c) for any other matter where liability cannot be excluded or limited under applicable law, is excluded or limited by this agreement, even if any other term of this agreement would otherwise suggest that this might be the case.
6.2 Subject to clause 6.1, Tussell shall not be liable to the Customer (whether for breach of contract, negligence, misrepresentation or for any other reason) for any loss or damage whatsoever incurred or sustained by the Customer in connection with this agreement and/or its use of the Services whether such loss or damage is direct, indirect or consequential and including, without limitation: (a) loss of profit; (b) loss of business; (c) lost data; (d) rerun time; (e) inaccurate output; (f) work delays, or (g) wasted staff or management time.
6.3 Subject to clause 6.1 and without prejudice to clause 6.2, Tussell’s maximum aggregate liability under or in relation to this agreement (whether for breach of contract, negligence, misrepresentation or for any other reason) will be limited to the aggregate sums (if any) paid by the Customer to Tussell during the 12 months preceding the date on which the claim is made.
7.1 In the course of Tussell providing the Services and of the Customer using the same under this agreement, it may be necessary from time to time for either party to have access to personal data. In relation to any transfer and processing of personal data as referred to in this clause :
(a) To the extent (if any) that Tussell will be a data processor, Tussell will process the personal data only in accordance with the terms of this agreement and any reasonable instructions given by the Customer from time to time;
(b) Each party warrants that where it is a data controller in respect of such personal data it will be and remain in compliance with the Data Protection Act 1988; and
(c) Each party will take appropriate technical and organisational measures against (i) unauthorised or unlawful processing of the personal data; and (ii) accidental loss or destruction of, or damage to, the personal data.
8.1 A Subscription shall commence on the Start Date and shall continue until terminated by written notice to the other. Following the giving of notice, the agreement shall terminate at the end of the month in which notice is given and the Fee for that whole month that shall remain due and payable.
8.2 A Trial shall commence on the Start Date and shall terminate automatically at the end of the Trial Period.
8.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without notice if the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach.
8.4 Apart from any other rights which Tussell may have, if the Customer breaches this agreement Tussell may suspend performance of any of its obligations or exercise of any of the Customer's rights under this agreement until the Customer remedies the breach to the reasonable satisfaction of Tussell.
8.5 All licences granted by Tussell under this agreement will automatically terminate on expiry or termination of this agreement (for whatever reason) and the Customer will immediately cease all use of the Services and will promptly return to Tussell all copies of the Confidential Information of Tussell in its possession or control or (at Tussell’s option) destroy them and certify in writing that this has been done. Expiry or termination of this agreement (for whatever reason) will not affect: (a) any accrued rights or liabilities which either party may have by the time termination takes effect; or (b) the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after its expiry or termination. Without prejudice to the foregoing, clause 5 (Intellectual Property Rights), clause 6 (Exclusions and Limitations) and clause 7 (Data Protection) will survive termination or expiry of this agreement.
9.1 All notices, agreements and consents under this agreement will be in writing (including by email). Notices will be sent to the address of the recipient set out in the Order or to such other address as the relevant party will notify to the other in accordance with this clause. Emails sent shall be treated as having been delivered 24 hours after sending (provided the sender does not receive a notification that the message is undeliverable). Any letter may be delivered by hand or first class pre-paid letter and will be treated as having been delivered (a) if sent by hand, when delivered; and (b) if by first class post, 48 hours after posting.
10.1 Tussell may sub-contract the performance of any of Tussell’s obligations under this agreement, provided that Tussell will remain liable to the Customer for any breach of this agreement if it sub-contracts any of its obligations. Tussell may assign this agreement or any of Tussell’s rights or obligations under this agreement without the Customer’s prior written consent. The Customer may not assign any or all of its rights or obligations under this agreement without Tussell’s prior written consent.
11.1 Neither party will be liable for any delay or failure in performing any of its obligations under this agreement if such delay or failure is caused by circumstances outside its reasonable control. All variations to this agreement must be agreed on behalf of both parties before they take effect. If any provision of this agreement is held for any reason to be ineffective or unenforceable, this will not affect the validity or enforceability of: (a) any other provision of this agreement; or (b) this agreement as a whole. No term of this agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this agreement.
11.2 This agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it. Each party acknowledges that, in entering into this agreement, it has not relied on any statement or representation not expressly set out in this agreement.
11.3 This agreement is to be interpreted in accordance with English law and parties submit to the exclusive jurisdiction of the English courts.