LICENCE TO USE THE USP DATA APPLICATION 

(A) DEFINITIONS

The words listed below have the following meanings in this Agreement:

FAIR MARKET VALUE: the fair market value of any Items downloaded, copied, exported, or otherwise retained by you following the termination of this Agreement, as reasonably determined by us;

INTELLECTUAL PROPERTY RIGHTS: patents, patentable rights, copyright, registered and unregistered design rights, utility models, trade marks (whether or not registered), trade names, rights in inventions, rights in data, database rights, rights in know-how and confidential information and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);

INTERNAL PURPOSES: Using the USP Data Application for your internal purposes only, which means that you may use the USP Data Application for your research and supply of your services but cannot make it (or any substantial part of it) available for resale to any third party, in particular the resale of data or reports, subject to statutory rights;

ITEM: a component part of the USP Data Application and/or any data, text, graphics, images, databases or other information contained in the USP Data Application; 

MONTHLY PAYMENT PROGRAMME: a scheme for paying the Subscription Fee and/or the Renewal Subscription Fee, whereby the relevant fees shall be increased by 15%, but such fees shall be payable monthly (on the first day of each monthly period within the relevant term), if the Parties elect to apply such scheme to the Agreement;

RENEWAL SUBSCRIPTION FEE: a fee which is applicable to any renewal of the term pursuant to clause 6,1 herein, as notified to you for such purposes from time to time; 

SUBSCRIPTION FEE: a fee which is applicable to the initial grant of the licence pursuant to clause 1 herein, as notified to you for such purposes prior to your acceptance of this Agreement;

USE: to access, receive, store, use, reproduce, extract, distribute, display, reformat, re-utilize and create derivative works;

USP DATA APPLICATION: the website access supplied to you comprising data, text, graphics, images, databases or other information from the URL www.uspdata.co.uk; and

USP REPORTS: the sector reports contained within the USP Data Application.

(B) INTERPRETATION

1. GRANT OF LICENCE

1.1 Subject to the terms of this Agreement, we hereby grant you a world-wide, non-exclusive, non-transferable licence for the term of this Agreement to Use the USP Data Application for your Internal Purposes only.

1.2 For the avoidance of doubt, you will not Use the USP Data Application in any other way and all rights not expressly granted to you under this Agreement are reserved to us.

1.3  You may not use the USP Data Application or any information contained therein or provided by Unique Sector Performance Data Limited to create any materials whose expression is substantially similar to that of the USP Reports nor use such information in any manner which would be restricted by any copyright subsisting in it and/or directly or through a third party create a product that competes with the USP Reports. For the duration of this licence and for a period of three years following the expiry or termination of this licence you shall not directly or indirectly through a third party create or develop a product that competes with the USP Reports.

2. INTELLECTUAL PROPERTY RIGHTS OF UNIQUE SECTOR PERFORMANCE DATA LTD

2.1 All Intellectual Property Rights in the USP Data Applications are, and will remain, our (or our licensors) exclusive property.

2.2 You will immediately notify us and at our expense give us all reasonable assistance to allow us (at our sole option) to protect the Intellectual Property Rights in the USP Data Application if you become aware of any unauthorised use of the USP Data Applications.

2.3 You will not use our name, trade names, trade marks, trade dress or logos without our prior consent.

3. WARRANTY

3.1 We will endeavour to ensure that your use of the USP Data Applications in accordance with the terms of this Agreement will not infringe the Intellectual Property Rights of any third party.

3.2 We will prepare the USP Data Applications using reasonable care and skill.

3.3 You acknowledge that the information provided in the USP Data Applications will represent or be based on information provided to us by third parties whose accuracy we cannot control and may contain expressions of advice or opinion and accordingly we do not warrant the accuracy of the information contained in the USP Data Applications or the validity of any advice given or opinion expressed on the basis of such information. Consequently, subject to clause 3.6, we assume no financial responsibility to you as to the accuracy or currency of any information obtained from the USP Data Application, nor are such representations or warranties to be implied in this Agreement. Email information included in the application is not supplied as opted in and you at your sole responsibility must make all necessary and legal enquiries regarding its use. We recommend that you do not make business decisions based solely on the contents of the USP Data Applications. In particular, but without limitation, we do not warrant that the USP Data Application will be suitable for any particular requirement of yours, that the format will be compatible with your hardware equipment or software environment, or that the USP Data Applications are complete, virus-free, accurate or up-to-date.

3.4 Subject to clause 3.6, we will not be liable to you for any of the following: loss of profit, earnings, business or goodwill; damage to reputation (including, without limitation, damage caused by defamation, libel and trade libel); or any indirect, punitive, special or consequential losses, damages, costs, expenses or other claims (whether caused by our negligence or that of our servants, agents, sub-contractors or otherwise) which arise directly or indirectly from the subject matter of this Agreement.

3.5 If any part of this clause 3 is held to be invalid or unenforceable under any applicable statute or rule of law then it will be deemed to be omitted, and if as a result we become liable for loss or damage which would otherwise have been excluded it will be deemed to be replaced with something as near to the original intention of the clause as is allowable under the applicable law.

3.6 Nothing in this Agreement will operate to limit or exclude either party’s liability for death or personal injury resulting from that party’s negligence, or either party’s liability for fraudulent misrepresentation.

4. CONFIDENTIALITY

You undertake that you will not at any time, divulge or make known to any other person, firm or company (including a member of the same group of companies), any confidential information relating to our affairs or business, including, without limitation, any terms offered or agreed under this Agreement.

5. WITHDRAWAL OF ITEMS FROM THE DATABASE

5.1 We reserve the right at any time to withdraw from the USP Data Application any Item or Items included in it:

5.1.1 if we no longer retain the right to use such material or license others to use it;

5.1.2 if required to do so by judicial governmental or administrative decision rule or order;

5.1.3 if, in our sole discretion, we believe that there is a reasonable chance that publication of it would amount to an infringement of Intellectual Property Rights, or infringement of other third party rights or constitute any unlawful act;

5.1.4 which was published in error.

5.2 In the event that any Item is to be withdrawn from the USP Data Application pursuant to clause 5.1 we will give notice to you. On receipt of such notice you will immediately cease all Use in any and all media of the withdrawn material and will erase, delete or otherwise destroy all copies of it in whatever format and certify to us that this has been done. We will have the right at our own expense to appoint an independent auditor to verify such actions and you will co-operate with such auditor to provide such verification.

6. TERM OF THE AGREEMENT AND TERMINATION

6.1 This Agreement will commence on the date of delivery of the USP Data Application and, subject to earlier termination by us as provided elsewhere in this Agreement, it will continue for a minimum of one year and will automatically renew on every one year anniversary thereafter unless terminated in accordance with these terms. 

The Subscription Fee shall be payable for the initial one-year term of this Agreement, and shall be paid to us before the commencement of the licence (or in accordance with the Monthly Payment Programme if expressed to be applicable). The Renewal Subscription Fee shall be payable for each subsequent one-year term of this Agreement, and shall be payable annually to us in advance on each anniversary of the date of this Agreement, or in accordance with the Monthly Payment Programme (if expressed to be applicable). We reserve the right to vary Renewal Subscription Fees and will provide reasonable notice of such variation prior to the commencement of the related one-year term.

All fees are subject to VAT at the prevailing rate. Following the termination of this Agreement, you shall be liable to pay the Fair Market Value to us (which may be partially or fully accounted for through any Subscription Fees or Renewal Subscription Fees already paid to us pursuant to this Agreement). For the avoidance of doubt, we may deduct the Fair Market Value from any refunds due to you pursuant to the following paragraph, and/or demand the payment of any further amount in order to fully account for the Fair Market Value due. 

You shall have the right to terminate this Agreement by giving 30 days’ written notice following the commencement of the initial term of this Agreement. Upon such termination, you shall be entitled to a refund of any Subscription Fee you have paid, net of any Fair Market Value payable by you pursuant to the foregoing paragraph. Pursuant to such termination, you undertake to immediately cease all Use in any and all Items and will erase, delete or otherwise destroy all copies of it in whatever format and certify to us that this has been done. We will have the right at our own expense to appoint an independent auditor to verify such actions and you will co-operate with such auditor to provide such verification. 

Except pursuant to the foregoing paragraph, you shall not be entitled to the refund of any fees paid to us following your unilateral termination of this Agreement, and any fees outstanding pursuant to the Monthly Payment Programme and/or the balance of the Fair Market Value (as applicable) shall remain payable.

LATE PAYMENT

If you fail to pay any monies when due, we reserve the right to charge  interest day-to-day on any unpaid amounts at a compound rate of 5% per annum over Bank of England Base Rate, from the date such amounts become due until payment is made in full and you shall be liable (on a full indemnity basis) for any costs and expenses incurred by us in the recovery of any overdue monies (including, but not limited to, any solicitors or debt collection agency fees).

6.2 We will have the right to terminate this Agreement immediately at any time by written notice to you if you breach or fail to perform any term of this Agreement, and either: (a) such failure is incapable of remedy; or (b) such failure is capable of remedy and has not been remedied within 30 days of our notice. In such circumstances, you shall not be entitled to the refund of any fees paid to us, and any fees outstanding pursuant to the Monthly Payment Programme and/or the balance of the Fair Market Value (as applicable) shall remain payable. 

7. CONSEQUENCES OF TERMINATION

Clauses 2, 3.3, 3.4, 3.5, 3.6, 4, 5 and 7 will survive expiry or termination of this Agreement, however occurring.

8. FORCE MAJEURE

Neither party will be liable for any loss, damages, or delay caused by war, riots, civil commotions, strikes, embargoes or contingencies beyond its control which may prevent or delay the defaulting party in performing any obligations under this Agreement; and the time for performance of that obligation will be extended accordingly, provided that if the force majeure circumstance lasts for more than three months the non-defaulting party will have the right to terminate this Agreement immediately on notice to the other party.

9. GENERAL TERMS

9.1 You may not assign, sub-contract or sub-license your rights or our obligations under this Agreement to any other person without first obtaining our consent. Any purported assignment, sub-contracting or sub-licensing of this Agreement without such consent will be void and will entitle us immediately to terminate this Agreement.

9.2 Any notice, certification, consent or other communication given under this Agreement must be in writing, to the electronic mail or physical addresses as notified by the receiving Party to the other Party from time to time. 

9.3 The failure of either party to require performance by the other of any provision of this Agreement will not affect its full right to require such performance at any subsequent time; nor will the waiver by either party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.

9.4 Nothing in this Agreement will be held to constitute a partnership or joint venture between the parties, nor the relationship between them of principal and agent, nor will a party have any authority to bind the other. 

9.5 Subject to clause 3.6, this Agreement constitutes the entire agreement between us in relation to the provision of the USP Data Application and supersedes all prior agreements and dealings relating to such subject matter. Any variation will be in writing and signed by authorised signatories for both parties.

9.6 Nothing in this Agreement is intended on a proper construction of the Agreement to confer any benefit on any third party and no term will be enforceable by any third party.

9.7 References to clauses and sub-clauses are to the clauses and sub-clauses of this Agreement.

9.8 Headings are for convenience only and will be ignored in interpreting this Agreement.

9.9 If any provision or part of this Agreement is held to be invalid, amendment to this Agreement may be made by the addition or deletion of wording as appropriate to remove the invalid part or provision but otherwise retain the provision and the other provisions of this Agreement to the maximum extent permissible under applicable law.

9.10 This Agreement will be governed by and construed in accordance with the laws of England regardless of the place of execution or performance. The English Courts will have non-exclusive jurisdiction to deal with any dispute or other difference arising out of or in connection with this Agreement.