You have been granted access to the Database [or certain Dashboards within the Database] by way of password protected link provided to you by CTA. In accessing this database via the password protected link , you agree to the terms and conditions in Your Sales Order and as displayed in the text below.
The following terms and conditions govern your use of the Western Canada Pollution Loss Database and are binding as between You and CHARLES TAYLOR ADJUSTING LIMITED incorporated and registered in England and Wales with company number 01994696 whose registered office is at The Minster Building, 21 Mincing Lane, London, England, EC3R 7AG (CTA).
These terms and conditions shall apply from the date of Your Sales Order.
Background
(A) CTA has developed a pollution loss database (the “Database”) which may be accessed via a password protected link.
(B) You wish to use the Database in its business operations.
1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
Additional Services: any professional services that the parties may from time to time agree that Supplier will provide to Customer pursuant to a Work Order.
Additional Services Fee: the fee payable by You to CTA for the Additional Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Customer Data: the data inputted by You, Users or CTA on Your behalf using the Database or to facilitate Your use of the Database.
Control: The possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a company or other business entity, whether through the ownership of shares or voting securities (including through ownership of more than fifty percent (50%) of the shares or securities of an entity entitled to elect directors), contract or otherwise; and Controls, Controlled and Controlling shall be construed accordingly.
Confidential Information: Information of commercial value, in whatever form or medium, disclosed by or on behalf of a party to the other party that is identified or labelled as confidential and any information that would be regarded as confidential by a reasonable business person relating to: commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing, including (in the case of CTA) information relating to the Services (including the results of any performance tests of the Services), CTA Materials or any of their constituent parts and (in Your case) Your Data. The Screening Outcome shall be considered Confidential Information of both parties.
Dispute: as defined in clause 16.1.
Documentation: the document(s) made available to You by CTA from time to time which sets out a description of the Database and the user instructions in respect thereof.
End User: a natural person who is a prospective holder of a travel insurance policy issued by You.
Fees: the fees payable by You to CTA for the Services as detailed in Your Sales Order.
Initial Licence Term: 12 months from the Licence Term Start Date.
Intellectual Property: any trademarks, service marks, patents, inventions, trade names, copyrights and trade secrets (whether or not any of these rights are registered) names, logos, know how, ideas, rights in designs, and other marks, reports, computer programs, software (source code and object code), programming aides, guides or material, documentation, manuals, charts, specifications , formulae, data files, descriptions, diagrams, screen displays, schematics, blueprints, drawings, tapes, devices, listings, notes, records, tables, plans, schedules, flow charts, creative concepts and designs, program listings, or other materials, and any draft of any of the foregoing , including all applications for any such right, matter or thing or registration thereof and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these rights which may subsist anywhere in the world;
Liability: liability in contract (including under any indemnity), tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise, and Liable shall be construed accordingly.
Licenced Users: those of Your employees and information technology contractors who are authorised to use the Database.
Licence Term Start Date shall mean the date of the Sales Order signed by You.
Licence Term: a twelve (12) month period commencing either on the Initial Licence Term Start Date or an anniversary of such date.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 14.1.
RPI: the retail prices index (all items) published by the Office of National Statistics, or any successor index.
Sales Order: the sales order issued to and signed by You setting out the commercial terms on which the Licence is granted.
Screening: an End User connecting to the Software and completing the screening process as set out in the Documentation.
Screening Outcome: the output score for the Screening which is determined by the Software in accordance with the Documentation.
Supplier Materials: any Documentation, data, calculations, methods, information, Intellectual Property and other materials created or supplied by CTA under these terms and conditions including any algorithms or rules contained in the Database.
Support Policy: the Supplier's policy for providing support in relation to the Services and Software which shall be provided to you upon request
Term: has the meaning given in clause 12.1 (being the Initial Term together with any subsequent Renewal Periods).
Users: Licenced Users and End Users.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.3 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these terms and conditions.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these terms and conditions under that statute or statutory provision.
1.6 A reference to writing or written includes faxes but not e-mail.
1.7 References to “include”, “includes” and “including” shall be read as being followed by the words “without limitation” so as to provide a non-exhaustive list of examples.
2. Licence
2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of these terms and conditions, CTA hereby grants to You a non-exclusive, non-transferable right to permit Licenced Users to use the Services and the Documentation, and End Users to use the Services (excluding the UAT).
2.2 In relation to the Licenced Users, You undertake that:
(a) You shall not permit more than the maximum number of Licenced Users detailed in Your Sales Order to access the Database and each such Licenced User shall be limited to the maximum number of Transactions in any one Licence Term as detailed in Your Sales Order.
(b) Each Licenced User shall keep a secure password for his use of the Database, that such password shall be changed no less frequently than monthly and that each Licenced User shall keep their password confidential;
(c) it shall maintain a written, up to date list of current Licenced Users and provide such list to CTA within 5 Business Days of CTA's written request at any time or times;
(d) it shall permit CTA to audit the Services in order to establish the name and password of each Licenced User. Such audit may be conducted no more than once per quarter, at CTA's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Your normal conduct of business; and
(e) if any of the audits referred to in clause 2.2(c) reveal that any password has been provided to any individual who is not an Licenced User, then without prejudice to CTA's other rights, You shall promptly disable such passwords and CTA shall not issue any new passwords to any such individual.
2.3 You shall not, and shall procure that Users shall not, access, store, distribute or transmit any Viruses or any material while using the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and CTA reserves the right, without Liability or prejudice to its other rights, to disable Your access to any material that breaches the provisions of this clause.
2.4 You shall not, and shall procure that Users shall not:
(a) use the Database for any purpose other than the Permitted Purpose;
(b) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under these terms and conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Database in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Database; or
(c) access all or any part of the Database in order to build a product or service which competes with the Database; or
(d) use the Database to provide services to third parties; or
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Database available to any third party except the Users as permitted by clause 2.1; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Database, other than as provided under this clause 2; and
(g) access or use, or permit access to or use of, the UAT other than by Licenced Users.
2.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Database and, in the event of any such unauthorised access or use, promptly notify CTA.
3. Services
3.1 CTA shall, during the Licence Term, provide the Database and make available the Database to You on and subject to these terms and conditions.
3.2.1.1 The Supplier will provide the Client with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Policy. The Supplier may amend the Support Policy in its sole and absolute discretion from time to time as notified to the Client from time to time.
4. CTA's obligations
4.1 CTA undertakes that it will exercise reasonable skill and care in all material respects in accordance with these terms and conditions.
4.2 The undertaking at clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of the Database contrary to CTA's instructions, or modification or alteration of the Database by any party other than CTA or CTA's duly authorised contractors or agents.
4.3 CTA:
(a) does not warrant that Your use of the Database will be uninterrupted or error-free; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledges that the use of the Database may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.4 These terms and conditions shall not prevent CTA from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these terms and conditions.
4.5 CTA warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these terms and conditions.
5. Your obligations
You shall:
(a) provide CTA with:
(i) all necessary co-operation in relation to these terms and conditions; and
(ii) all necessary access to such information as may be required by CTA,
in order for CTA to perform its obligations under these terms and conditions and to verify that Your use of the Database is in accordance with the terms of these terms and conditions;
(b) comply with all applicable laws and regulations with respect to Your activities under these terms and conditions;
(c) ensure that the Users use the Database in accordance with the terms and conditions of these terms and conditions and shall be responsible for any User's breach of these terms and conditions; and
(d) be solely responsible for procuring and maintaining Your network connections and telecommunications links from its systems to CTA's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
6. Charges and payment
6.1 You shall pay the Fees to CTA in accordance with this clause 6 and the Sales Order.
6.2 You shall on the Licence Term Start Date provide to CTA valid, up-to-date and complete purchase order information reasonably acceptable to CTA and any other relevant valid, up-to-date and complete contact and billing details.
6.3 If CTA has not received payment within 30 days of the due date, and without prejudice to any other rights and remedies of CTA:
(a) CTA may, without Liability to You, disable Your password, account and access to all or any part of the Database and CTA shall be under no obligation to provide access to the Database while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
6.4 All amounts and Fees stated or referred to in these terms and conditions:
(a) shall be payable in CAD;
(b) non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to CTA's invoice(s) at the appropriate rate to the extent applicable.
6.5 CTA shall be entitled to increase applicable Fees:
(a) at the start of each Licence Term by no more than the percentage increase in RPI over the previous Licence Term without notice; and
(b) at the start of each Renewal Period upon at least 30 days' prior notice to You,
and the Sales Order shall be deemed to have been amended accordingly.
7. Proprietary rights
7.1 You acknowledge and agree that:
(a) CTA and/or its licensors own all Intellectual Property in the Database and any other Supplier Materials; and
(b) without limiting clause 7.1(a), CTA will own all Intellectual Property in all algorithms and rules (including algorithms and rules specific to or requested by You and You hereby assign, by way of present, and where appropriate, future assignment, to CTA absolutely with full title guarantee and free of any encumbrances or moral rights all Your present and future Intellectual Property in such algorithms and rules) contained in the Database.
Except as expressly stated herein, these terms and conditions does not grant You any rights to, or in, Intellectual Property, or any other rights or licences in respect of the Database or any Supplier Materials.
7.2 CTA confirms that it has all the rights in relation to the Database that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these terms and conditions.
8. Confidentiality
8.1 You will be given access by CTA to Confidential Information in accessing the Database. CTA's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission by You;
(b) was in Your lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2 You shall hold CTA’s Confidential Information in confidence and, unless required by law, not make CTA’s Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the performance of these terms and conditions.
8.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these terms and conditions.
8.4 The above provisions of this clause 8 shall survive termination or expiry of Your Licence.
9. Indemnity
9.1 You shall defend, indemnify and hold harmless CTA against claims, actions, proceedings, losses, damages, expenses and costs (including Court costs and reasonable legal fees) arising out of or in connection with Your use of the Database and any other Supplier Material or Documentation provided that:
(a) You are given prompt notice of any such claim;
(b) CTA provides reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and
(c) You are given sole authority to defend or settle the claim only where such settlement imposes no Liability (financial or otherwise) on CTA.
9.2 CTA shall defend You, its officers, directors and employees against any claim that the Database, Documentation or other Supplier Material infringe any UK patent, copyright, trademark, database right, or right of confidentiality, and shall indemnify You for any amounts awarded against You in judgment or settlement of such claims, provided that:
(a) CTA is given prompt notice of any such claim;
(b) You provide reasonable co-operation to CTA in the defence and settlement of such claim, at CTA's expense; and
(c) CTA is given sole authority to defend or settle the claim where such settlement imposes no Liability (financial or otherwise) on You.
9.3 In the defence or settlement of any claim, CTA may procure the right for You to continue using the Database, Documentation or other Supplier Material (as applicable) or replace or modify the Services, Additional Services, Documentation or Deliverables so that they become non-infringing or, if such remedies are not available on a reasonable commercial basis, CTA may terminate these terms and conditions on at least 2 Business Days' notice and in such event shall reimburse You, on a pro rata basis, any Fees paid in advance for the unused portion of the relevant Term or Renewal Period. CTA will have no additional Liability or obligation to pay liquidated damages or other additional costs to You.
9.4 In no event shall CTA, its employees, agents and sub-contractors be Liable to You to the extent that an alleged infringement is based on:
(a) a modification of the Database or other Supplier Materials by anyone other than CTA, its employees, agents and sub-contractors if such claim would not have arisen but for such modification; or
(b) Your use of the Database, Documentation or other Supplier Material in a manner contrary to the express provisions of these terms and conditions or the instructions given to You by CTA; or
(c) Your use of the Database, Documentation or other Supplier Material after notice of the alleged or actual infringement from CTA or any appropriate authority.
10. Limitation of Liability
10.1 This clause 10 sets out the entire financial Liability of CTA (including any Liability for the acts or omissions of its employees, agents and sub-contractors) to You:
(a) arising under or in connection with these terms and conditions;
(b) in respect of any use made by You or any User of the Database, Documentation or other Supplier Material or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms and conditions.
10.2 Except as expressly and specifically provided in these terms and conditions:
(a) You assume sole responsibility for results obtained from the use of the Database Documentation or other Supplier Material by You, and for conclusions drawn from such use;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms and conditions; and
(c) the Database, Documentation and other Supplier Material are provided to You on an "as is" basis.
10.3 Nothing in these terms and conditions excludes the Liability of CTA:
(a) for death or personal injury caused by CTA's negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) for any Liability which cannot be excluded or limited by law.
10.4 Subject to clause 10.2 and clause 10.3:
(a) CTA shall not be Liable for any:
(i) loss of profits;
(ii) loss of business or revenue;
(iii) loss of anticipated savings;
(iv) depletion of goodwill and/or similar losses;
(v) loss or corruption of data or information (including Customer Data); or
(vi) pure economic loss,
in all cases whether direct or indirect, or for any special, indirect or consequential loss, costs, damages, charges or expenses howsoever arising in connection with the performance or contemplated performance of these terms and conditions; and
(b) CTA's total aggregate Liability arising in connection with providing You with a right to access the Database, and the data and information contained therein shall be limited to 100% of the total Fees paid and payable by You during that Licence Term.
11. Term and termination
11.1 These terms and conditions shall, unless otherwise terminated as provided in this clause 11, commence on the Licence Term Start Date and shall continue for the Initial Term and, thereafter, these terms and conditions shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case these terms and conditions shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of these terms and conditions;
and the Initial Licence Term together with any subsequent Renewal Periods shall constitute the Term.
11.2 In the event that Your account is not enabled at the Licence Term Start Date, CTA may adjust the Licence Term Start Date and extend the End Date accordingly. Your invoice will reflect the updated Licence Term Start and End Dates
11.3 CTA may terminate these terms and conditions with immediate effect by giving written notice to the other party if:
(a) You fail to pay any amount due under these terms and conditions on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) You commit a material breach of any other term of these terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) You repeatedly breach any of the terms of these terms and conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these terms and conditions.
11.4 Either party may terminate these terms and conditions with immediate effect by giving notice to the other
(a) it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(e) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(h) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.4(d) to clause 11.4(j) (inclusive); or
(i) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.5 On termination of these terms and conditions for any reason:
(a) all licences granted under these terms and conditions shall immediately terminate;
(b) You shall return and make no further use of any Supplier Materials including copies of them;
(c) You shall delete any instance of any data contained in or derived from the Database (including, but not limited to, drawings, numeric data, graphs, tables, maps); and
(d) any rights, remedies, obligations or Liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these terms and conditions which existed at or before the date of termination shall not be affected or prejudiced.
12. Force majeure
CTA shall have no Liability to You under these terms and conditions if it is prevented from or delayed in providing the Database its obligations under these terms and conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of CTA or any other party), failure of a utility service or transport or telecommunications network, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that You is notified of such an event and its expected duration.
13. Law and jurisdiction
These terms and conditions shall be governed by English law and the parties irrevocably submit to the jurisdiction of the courts of England and Wales.
14. Variation
No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15. Waiver
No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. Severance
16.1 If any provision (or part of a provision) of these terms and conditions is found by any Court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17. Entire agreement
These terms and conditions together with the Sales Order, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
18. Assignment
18.1 You shall not, without the prior written consent of CTA, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under these terms and conditions.
18.2 CTA may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms and conditions.
19. Modern Slavery Act
19.1 In performing its obligations under these terms and conditions, CTA shall, and shall ensure that each of its sub-contractors shall, comply with the Modern Slavery Act 2015 (the “Modern Slavery Act”).
19.2 CTA represents and warrants that neither it nor any of its officers, employees or other persons associated with it:
(a) has been convicted of any offence involving slavery and human trafficking; and
(b) to the best of its knowledge, has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking.
19.3 CTA shall notify You if it becomes aware of:
(a) any breach, or potential breach, of the Modern Slavery Act; or
(b) any actual or suspected slavery or human trafficking in a supply chain, which has a connection with these terms and conditions.
20. Anti-Bribery
20.1 Each party shall:
(a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010; and
(b) promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of these terms and conditions.
21. No partnership or agency
Nothing in these terms and conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or Liability and the exercise of any right or power).
22. Third party rights
These terms and conditions do not confer any rights on any person or party (other than the parties to these terms and conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.