Terms and conditions
TERMS AND CONDITIONS
1.1 In these Conditions the following words and expressions shall have the following meanings:
Charges: the charges to be paid by the Customer to the Supplier pursuant to these Conditions.
Conditions: means these standard conditions for the supply of the Report.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or sub-contractors involved in the provision or receipt of the Report who need to know the confidential information in question (Representatives) to the other party and that party’s Representatives in connection with these Conditions, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Customer: the entity that has paid for a licence to the Report.
Customer System: any information technology system or systems (including portable devices) owned or operated by the Customer from which the Report is received in accordance with these Conditions.
Enterprise Licence: means (i) access to the Report for an unlimited number of Registered Users within the Customer globally; (ii) each Registered User is permitted to read the Report on up to three electronic devices or offline on the Customer System; and (iii) printing of the Report is enabled.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licence Type: a Single User Licence, Multi User Licence or Enterprise Licence (as applicable) as agreed in writing between the Customer and the Supplier.
Multi User Licence: means (i) access to the Report limited to a pre-determined number of Registered Users as agreed between the parties; (ii) each Registered User can read the Report online across up to three electronic devices or offline on the Customer System; and (iii) printing of the Report is enabled.
Registered User: any employee or subcontractor of the Customer authorised to access and use the Report.
Report: the report or information, in whatever form including images which is provided by the Supplier to the Customer pursuant to these Conditions.
Security Feature: any security feature including any key, PIN, password or copy or edit protection embedded within the Report.
Single User Licence: means (i) access to the Report limited to one Registered User only across three electronic devices or offline on the Customer System; (ii) the Report can be read offline; and (iii) printing of the Report is enabled.
Supplier: FCBI Energy Limited registered in England and Wales with company number 09823824 of 7 – 9 Fashion Street, London, E1 6PX.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Conditions.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4 A reference to writing or written includes e-mail but not faxes.
1.5 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2 SUPPLY OF THE REPORT AND USE
2.1 These Conditions shall prevail over any terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing.
2.2 On payment of the Charges, the Supplier shall supply the Report to the Customer and the Customer shall access and use the Report in accordance with the terms of these Conditions.
2.3 The Supplier may, at any time, change the content, format or nature of the Report.
3.1 The Supplier grants to the Customer a non-exclusive, non-transferable, non-sublicenseable, revocable, worldwide licence for the Customer’s internal business use, subject to the Licence Type and clause 3.2, to:
3.1.1 access and view the Report;
3.1.2 store, process and/or copy the Report as may be necessary for the internal business purposes of the Customer (including back-up, contingency and archiving with no right to copy the Report to other sites or third parties).
3.2 The Customer shall:
3.2.1 limit access to the Report to the Registered Users;
3.2.2 not use the Services for any purpose contrary to any law or regulation or any regulatory code, guidance or request;
3.2.3 not extract, reutilise, use, exploit, redistribute, redisseminate, sell, copy or store the Report for any purpose not expressly permitted by these Conditions without the prior written permission of the Supplier; and
3.2.4 not do anything which may damage the reputation of the Supplier or the Report.
3.3 If any unauthorised use is made of the Report and such use is attributable to the act or default of, or through, the Customer then, without prejudice to the Supplier’s other rights and remedies, the Customer shall immediately be liable to pay the Supplier an amount equal to the Charges that the Supplier would have charged, had the Supplier authorised the unauthorised user at the beginning of the period of that unauthorised use.
4.1 For the supply of the Report, the Customer shall pay to the Supplier the Charges.
4.2 The Charges shall be due and payable in full to the Supplier prior to the supply of the Report. The Supplier shall have no obligation to supply the Report if payment is not received in full and cleared funds.
4.3 All Charges are expressed exclusive of VAT. The Customer shall pay to the Supplier, in addition to the Charges, the amount of VAT (if any) which is properly chargeable by the Supplier to the Customer on or in respect of the Charges.
4.4 Any offers or discounts offered by the Supplier cannot be used in conjunction with any other offer or discount. Only one discount or offer can be applied against any one product containing the Report.
4.5 Once the Report has been received by the Customer, the Customer will not be entitled to any refund of the Charges.
5.1 The term Confidential Information does not include any information that:
5.1.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 5);
5.1.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
5.1.3 was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
5.1.4 was known to the receiving party before the information was disclosed to it by the disclosing party; or
5.1.5 the parties agree in writing is not confidential or may be disclosed.
5.2 Each party shall keep the other party’s Confidential Information confidential and shall not:
5.2.1 use any Confidential Information except for the purpose of exercising or performing its rights and obligations under these Conditions (Permitted Purpose); or
5.2.2 disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
5.3 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know that Confidential Information for the Permitted Purpose, provided that:
5.3.1 it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and
5.3.2 at all times, it is responsible for the Representatives’ compliance with the confidentiality obligations set out in this clause 5.
5.4 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.
5.5 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information, other than those expressly stated in these Conditions, are granted to the other party, or are to be implied from these Conditions.
5.6 The provisions of this clause 5 shall continue to apply after termination of these Conditions.
6 SECURITY AND PASSWORDS
6.1 The Customer shall ensure that the Report is kept secure by using the Security Features and in an encrypted form, and shall use the best available security practices and systems applicable to the use of the Report to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Report.
6.2 Where the Supplier uses Security Features in relation to the Services (wholly or in part), the Security Features must, unless the Supplier notifies the Customer otherwise, be kept confidential and not lent, shared, transferred or otherwise misused.
6.3 If the Customer becomes aware of any misuse of the Report, or any security breach in connection with these Conditions that could compromise the security or integrity of the Report or otherwise adversely affect the Supplier or if the Customer learns or suspects that any Security Feature has been revealed to or obtained by any unauthorised person, the Customer shall, at the Customer’s expense, promptly notify the Supplier and fully co-operate with the Supplier to remedy the issue as soon as reasonably practicable.
6.4 The Customer agrees to co-operate with the Supplier’s reasonable security investigations.
6.5 The Supplier may change Security Features on notice to the Customer or the Registered Users for security reasons.
7 INTELLECTUAL PROPERTY RIGHTS OWNERSHIP
7.1 The Customer acknowledges that:
7.1.1 all Intellectual Property Rights in the Report are the property of the Supplier or its licensors, as the case may be;
7.1.2 it shall have no rights in or to the Report other than the right to use it in accordance with the express terms of these Conditions; and
7.1.3 the Supplier or its licensors has or have made and will continue to make substantial investment in the obtaining, verification, selection, coordination, development, presentation and supply of the Report.
7.2 The Customer acknowledges that reference in any element of the Report to trade names or proprietary products where no specific acknowledgement of such names or products is made does not imply that such names or products may be regarded by the Customer as free for general use, outside the scope of the use of the Report authorised by these Conditions.
8 LIMITATION OF LIABILITY
8.1 Except as expressly stated in these Conditions, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
8.2 Without limiting the effect of clause 8.1, the Supplier has used all reasonable efforts to ensure that the information in the Report is fit for purpose but notwithstanding this, the Supplier does not warrant that:
8.2.1 the Report is accurate, complete, reliable, secure, useful, fit for purpose or timely; or
8.2.2 that the Report will be suitable for or be capable of being used by the Customer or any third party.
8.3 It is the Customer’s responsibility to ensure that the Report is suitable for its needs. In particular, except as expressly set out in these Conditions, the Supplier expressly disclaims all warranties of merchantability, satisfactory quality or fitness for a particular purpose or that use of the Report or any part of it will result in any economic advantage, increase in profits or reduction in costs.
8.4 Nothing in these Conditions shall limit the liability of the Supplier to the Customer for:
8.4.1 death or personal injury resulting from its negligence (as defined in the Unfair Contract Terms Act 1977);
8.4.2 fraudulent misrepresentation; and
8.4.3 any liability which cannot be excluded by law.
8.5 Subject to clause 8.1, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
8.5.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
8.5.2 any loss or corruption (whether direct or indirect) of Report or information;
8.5.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
8.5.4 any loss or liability (whether direct or indirect) under or in relation to any other contract.
8.6 The Customer acknowledges that information used to compile the Report may be obtained from third party sources and has not been independently verified by the Supplier in every single case and the Customer agrees that the Supplier shall not be responsible or liable for the content of the Report or the use to which the Report is put by the Customer (including but not limited to any reliance placed on the Report).
8.7 Subject to clause 8.1, the Supplier’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with these Conditions shall in all circumstances be limited to the total Charges paid by the Customer to the Supplier for the Report.
9 DATA PROTECTION
10.1 These Conditions are personal to the Customer and it shall not assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under these Conditions without the prior written consent of the Supplier (which is not to be unreasonably withheld or delayed).
10.2 The Customer confirms it is acting on its own behalf and not for the benefit of any other person.
No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.1 All notices between the parties with respect to these Conditions shall be in writing and signed by or on behalf of the party giving it. Any notice shall be duly given (i) on delivery if delivered by hand, (ii) 48 hours after sending if sent by first class post or special or recorded delivery (or other “proof of delivery” or “proof of posting” service that Royal Mail may from time to time offer) or (iii) on sending if sent by email (provided that a copy is also sent by post).
12.2 Notices shall be sent:
12.2.1 in the case of notices delivered by hand, post or recorded delivery, to the address set out in these Conditions in the case of notices to the Supplier and to the registered address of the addressee in the case of notices to the Customer or such other address as the addressee may from time to time have notified for the purpose of this clause, and
12.2.2 in the cases of notices sent by email to email@example.com for notices to the Supplier. No notices by email shall be sent to the Customer.
12.3 Any notice or communication given under these Conditions shall not be validly given if sent by fax or any form of messaging via social media or text message.
13 ENTIRE AGREEMENT
13.1 These Conditions constitute the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
13.2 Each party acknowledges that in entering into these Conditions it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Conditions.
13.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.
15 NO PARTNERSHIP OR AGENCY
15.1 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
15.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16 THIRD-PARTY RIGHTS
A person who is not a party to these Conditions shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions.
If any dispute arises in connection with these Conditions, the parties agree to enter into mediation to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (“ADR notice”) to the other party to the dispute referring the dispute to mediation. A copy of the referral should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice. No party may commence any court proceedings in relation to any dispute arising out of these Conditions until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
18 GOVERNING LAW
These Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual disputes or claims).