1. Definitions and Interpretation
The definitions in this clause apply to these terms and conditions:
‘Data’ or ‘List’ means the information provided by Prolists comprising any combination of (but not limited to) postal addresses, email addresses, telephone numbers, contact names and other information such as organisation size etc., in any number of fields and not limited to hard copy or electronic form.
‘Service’ means any service supplied by Prolists including (but not limited to) the creation and execution of email postal and telephone campaigns, manipulation of data and databases, liaison with third parties.
‘Fee’ means the fee agreed for the supply of the List as set out within the Order Form.
‘Order Date’ means the date that the order was made for the licence of the List pursuant to these terms and conditions as set out on the Order Form.
‘Order Form’ or ‘Invoice’ means the invoice comprising the agreement entered into between You and Prolists for the supply of the List, pursuant to these terms and conditions.
‘Licence Term’ or ‘Term’ means the duration of our permission for You to use the Data or Service under these terms.
‘You’ and/or ‘Your’ means the person or organisation that has purchased a Service or License supplied by Prolists as set out in the Order Form.
- You have agreed to rent under Licence from Prolists a List in accordance with and subject to these terms and conditions.
- A copy of these terms is delivered with the invoice and are deemed to have been read and accepted by You. The terms do not need to be signed by either party.
3. Ownership of rights in the List and Data
- Prolists owns all rights in the List now and in the future.
- You will not own the list unless a special written arrangement has been made between You and Prolists
- Prolists grants to you a licence to use the List for a limited period (the Term).
- The Licence shall commence upon delivery of the List to you and terminate on the date set out within the Order Form.
- The List is considered to be received by You upon supply from Prolists.
- The List is supplied on either single (‘SU’) or multiple use (‘12MMU’) Term as set out in the Order Form. SU means that you may use the List for a single telemarketing, mailing or email campaign. 12MMU use means that you may telemarket, mail or email the List for 12 months. Where different terms are offered, they will be defined in the order form.
- The List cannot be used after the prescribed license period, or re-used in the case of single-use licences.
- A licence extension may be purchased if required, for a fee set by Prolists at the time of your application for an extension.
5. Security and Confidentiality of the List
- The List may be used for the benefit of a single business entity (You) during the Licence Term.
- You must not make the List or any Data contained within the List available to any third party including parent, subsidiary or related organisation, mailing house or telemarketing agency, without first obtaining our written. Such third parties must also agree, in writing, to these terms and conditions before embarking on any campaign on your behalf.
- You cannot sell, rent, lease, sub-license, lend, assign, time-share, or transfer, in whole or in part, or provide any third parties access to, the List or any Data contained within the List.
- You understand that a number of traceable records (‘Seeds’) are placed in every list in order to monitor its use. You may not remove such records if located and they must always be included in any campaigns that you run. This protects our investment while ensuring that the List is being used responsibly in accordance with these terms.
- You may load the List into a central electronic storage system for the duration of the Term only for the purpose of emailing, mailing or telemarketing.
- All records in the List must be clearly flagged and identifiable as the property of Prolists.
- You may not merge the List with any other list unless it can easily be de-merged in its entirety.
- The List may not be distributed using spreadsheets or other type of electronic or physical document. The list may not be stored in more than one computer database and must not exist on more than one computer.
- You must, at all times, have in place appropriate technical and organisational security measures to ensure a level of security appropriate to the security of the List.
- All Data and records comprising the List must be deleted by You and completely removed from all of Your systems (and systems under Your control) once a licence has expired or has been cancelled in accordance with these terms and conditions.
- You must ensure that all of your employees having access to the List are bound by these terms and conditions and that they are under a duty of confidentiality and that they agree not to copy, use, sell or damage the List.
6. Proper and Reasonable Use of the List
- You warrant that any and all communications that you execute using the List shall contain nothing which infringes copyright or is defamatory, obscene, indecent, or otherwise illegal and unlawful.
- You agree not to use the List for any purpose other than legitimate business marketing and communications. In particular, you are responsible for making sure that your use of the List does not contravene any local or international laws or the Data Protection Act.
- You shall at all times during the term of the licence, comply with all applicable legal and regulatory requirements relating to the obtaining, retention, processing and use of any personal data relating to customers contained within the List.
- All communications made to recipients on the List should be as relevant and targeted as possible.
- If a request is made for a recipient to be removed from the List, this should be respected and You should maintain a list of recipients that no longer wish to receive communication from You.
- Only reasonable attempts should be made by You to promote Your services/products, repeated calls/faxes/emails and/or any undue pressure being made to any recipient(s) will result in the licence being cancelled.
- Prolists accepts no responsibility or liability for any form of communication between You and the recipient.
7. List Update
- In the case of 12MMU licences, Prolists will issue at 6 months one update to the list upon receipt of a written or email request by You. Updates will not be issued within 2 month of the expiry of the licence Term.
8. Prolists warranty
- Whilst every effort is made by Prolists to supply accurate Lists and Data, Prolists does not guarantee the result(s) of any campaign or communication made by You using the List, or accept liability in the event of failure.
- You accept that the results of any campaign you execute depends entirely on market interest in your product service or proposition and your ability to sell such.
- Prolists will refund on a pro-rata basis any record(s) within the list that can be shown by You to be inaccurate. Any claim for a pro-rata refund must be made within 30 days of delivery of the List to You by Prolists. Claims must be submitted using a form approved by Prolists, which is available on request.
9. Fees, Payment and Interest
- Payment is required in advance unless a credit account has been established between Prolists and You. In cases where a credit account or monthly payment plan has been agreed, all payments must be made on or before their due date.
- Use of the List is expressly prohibited when payment(s) have not been made by their due date.
- Use of the List is expressly prohibited when the licence has expired, unless a new licence has been agree in writing by Prolists. Prolists reserves the right to charge interest on any overdue Fees at the rate of 3% per month.
- Penalties apply for the misuse of the data or for the contravention of these Terms.
- Where the data is used by You after the expiry of the Licence Term, without the prior agreement of Prolists, you agree to enter into a new and identical Licence Term and to immediately pay a fee equal to the original invoice value.
- Where any of the conditions listed in clause 5 are violated, you agree to immediately pay a fee equal to the original invoice value plus 100% for each violation thereof.
- Where a list supplied to You is subsequently found to be in the possession of an unlicensed entity or third party, that entity or third party will be informed of its theft.
- If any of these terms and conditions are breached Prolists shall be entitled to cancel the licence forthwith without any obligation to reimburse you for the Fees.
- Orders cancelled by You, following delivery of the Data will be subject to the full invoice value regardless as to whether You have used the List or not.
- You shall keep Prolists fully indemnified against losses, costs, charges and expenses of whatsoever nature arising out of or in connection with a breach of these terms and conditions by You, and/or Your employees, and/or Your use of the List whether or not such claim is upheld and justified.
13. Limitation of liability
- Save for the limited warranty set out in clause 8 of these terms and conditions, Prolists cannot be held liable for any loss or damage, direct or consequential, however incurred, by your use of the List.
- The accuracy of the List is not a condition of contract.
- Damages for any loss or otherwise in respect of any claim by You arising out of or in connection with the List or any breach of contract by Prolists shall, in any event, be limited to the value of the Fees.
- You agree to notify Prolists immediately if you receive any notice of non-compliance with, or a request for information under, the Data Protection Act 1998 or any equivalent legislation in any other country and fully and promptly co-operate in dealing with any such notice or request.
- If at any time any one or more of the provisions of these conditions becomes invalid, illegal or unenforceable under any law or is held by a Court to be invalid, illegal or unenforceable the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
- These terms and conditions shall prevail over and supersede any inconsistent terms of the Order Form and over previous versions of Prolists’ terms and conditions.
- These Terms and Conditions and each and every licence pursuant thereto shall be governed by and construed in all respects in accordance with the laws of England, and the Prolists and You hereby agree to submit to the jurisdiction of the English Courts.