Standard Terms and Conditions: Last Reviewed October 2018 DataXcel Ltd is referred to as DataX for the purposes of this document:
Please take special notice of our data compliance policy which governs the compliant use of data supplied by DataX. This policy is reviewed on a quarterly basis against all regulatory authorities in Ireland, the UK and the EU. You can view our compliance policy here:For Ireland
For the UK
For the purposes of this clause the following definitions shall apply:
(a) Data Protection Legislation: (i) the Data Protection Act in Ireland 1988 and the amended act 2003 and in the UK 1998 (DPA), until the effective date of its repeal; (ii) the General Data Protection Regulation (EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the Territory, and (iii) any successor legislation to the DPA and the GDPR, in particular the Data Protection Bill 2017 – 2019, once it becomes law.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, DataX is the data controller and the client is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Insertion Order to this Agreement sets out the scope, nature and purpose of processing by DataX and the client, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
Without prejudice to the generality of these terms the client shall, in relation to any Personal Data provided by DataX in connection with the performance by DataX of its obligations under this Agreement:
(a) process that Personal Data only on the written instructions of the insertion order unless otherwise required by the laws of any member of the European Union or by the laws of the European Union applicable to the client to process Personal Data (Applicable Laws).(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of DataX has been obtained and the following conditions are fulfilled:
(i) the Client or DataX has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) DataX and the client complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) The client complies with reasonable instructions notified to it in advance by DataX with respect to the processing of the Personal Data;
(e) assist DataX, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify DataX without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of DataX, delete or return Personal Data and copies thereof to the DataX on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by DataX and or the DataX designated compliance auditor. Use of sub-processors to carry out specific processing activities in relation to Personal Data in relation to this Agreement (Sub-Processors) must be notified and agreed by DataX prior to the transfer of data. If a sub processor is to be used the client must have in place a data processing agreement with the sub processor incorporating terms which are substantially similar to those set out in this agreement.
1.1 The following words shall have the following meanings:
Agreement this Agreement (including the Contract and these Terms and Conditions);
Client DataX’s client for the Services as specified in the Contract;
Client’s Account the account between the Client and DataX through which the Total Quantity of Data is made available for the Client to access;
Confidential Information all Data and any other deliverables which DataX may from time to time provide to the Client under this Agreement;
Contract the document, which forms part of this Agreement, describing the services to be delivered by DataX to the Client and all relevant Fees to be charged;
Data all information, data, and specifications to be used by DataX on behalf of the Client in connection with this Agreement;
De-duping the removal and replacement of unsuitable and/or duplicate entries from the Data and De-Dupe and De-Duped shall be construed accordingly;
Fees the Fees to be paid by the Client for the Services as specified in the Contract;
DataX (registered number 480849) whose registered office is 29 Lower Patrick Street, Kilkenny.
Services the services specified in the Contract to be provided by DataX to the Client;
Timetable any timescale specified in the Contract for the provision of the Services;
Total Quantity the total quantity of Data supplied by DataX, whether equal to, less or in excess of the quantity specified in the Contract,
Words denoting persons shall include corporations, companies, firms or other bodies as the case may be and vice versa. Words denoting the masculine shall include the feminine and neuter or vice versa. The singular shall include the plural and vice versa.
1.3 “Copy” means a copy in any format whatsoever and includes a partial copy.
2.1 DataX and the Client agree to be bound by the terms and conditions of this Agreement.
2.2 DataX will provide the Services to the Client. Any dates and times given for the provision of the Services are estimates only.
2.3 The Client will pay all Fees within 30 days of date of invoice, in euro or sterling , to DataX’s nominated bank account. All Fees are quoted exclusive of VAT and any other applicable taxes, Fees or deductions which shall be payable by the Client in addition. In the event of non – payment of any Fees or any other due sum (whether in whole or in part) DataX reserves the right to: 2.3.1 charge interest on all outstanding sums at 8% above the bank rate of Allied Irish Bank Plc ‘s base rate from time to time, compounded daily; and 2.3.2 Refuse to provide (or suspend the provision of) any or all Services (in whole or in part) owed to the Client under any Agreement, until payment of all outstanding sums is made in full.
2.4 DataX may make the Total Quantity of Data available in one or more installments. Regardless of the number of such installments, DataX may issue a single invoice in respect of the Total Quantity of Data but reserves the right to issue invoices in respect of each installment as it is made available. Invoices are generally raised on or after (and usually within the month following) the date on which the relevant installment(s) of the Total Quantity of Data has been made available, save where otherwise expressly agreed.
2.5 Where services supplied to the Client do not include live De – duping or where separate acceptance criteria applied to the Data supplied by DataX (and the Client is therefore required to confirm the results of its own Deduping for the purpo ses of determining acceptable Data), the Client is required to confirm the amount of accepted Data contained within any given installment of the Total Quantity of Data within 1 5 days of the last day of the month in which such installment has been made avai lable. Such confirmation includes providing a report to DataX detailing all unsuitable and/or duplicate entries and giving all necessary information to allow DataX to verify such details. If the Client does not provide such confirmation within this timeframe, DataX reserves the right to invoice The Client for the full amount of Data included in the installment in question.
3.1 As soon as practicable after signature of this Agreement:
3.1.1 DataX will collect the Total Quantity of Data, using its reasonable ende a vours to do so in accordance with the Timetable but the Client acknowledges that time shall not be of the essence for this purpose;
3.1.2 where the Services include De-duping, DataX will use its reasonable endeavours to De-dupe such Data (including against any other data previously supplied to the Client);
3.1.3 DataX will supply or make available through the Client’s Account, a copy of such Data to the Client.
Any queries should correspond with:
29 Lower Patrick Street
Tel 00353 56 7790295
3.1.4 the Client will promptly examine such Data and report (where appropriate) any remaining unsuitable and/or duplicate entries/ goneaways to DataX, giving DataX all necessary information to allow DataX to De – dupe such entries;
3.1.5 DataX will, where appropriate, remove from the Data any unsuitable and/or duplicate entries reported by the Client in accordance with clause 3.1.4 and will supply an amended copy of the Data to the Client;
3.1.6 When the Client is reasonably satisfied that the Data has been De – duped, the Client will notify DataX of its acceptance of the Data. 3.2 DataX grants the Client a non – exclusive perpetual non – transferable non – sub licensable worldwide license to use the Data to distribute material on its own behalf.
3.3 DataX reserves the right to change and/or refuse to use any wording and/or imagery supplied by the Client in connection with the Services where it believes such wording and/or imagery provided is in breach of this Agreement or is otherwise inappropriate. Notification of any such changes will be made to the Client.
3.4 The Client acknowledges that DataX cannot control or guarantee the number of consumer registrations and may therefore from time to time collect more or less than the quantity of Data specified in the contract. Unless and until the Client gives DataX not less than 10 working days’ notice to the contrary, DataX may supply Data to the Client in excess of or less than the amount of Data specified in the Contract. And the Client undertakes that it shall pay DataX Fees (to be calculated pro – rata with the Fees) in respect of all Data so supplied.
3.5 DataX may provide to the Client a user iden tification code, password or other information (“Security Information”), as part of it’s’ security procedure to enable the Client to access and download Data from the Client’s Account. Where Security Information is provided, it must be treated as confident ial and not disclosed to any third party. DataX has the right to suspend, disable and/or re – issue any Security Information if it has been misused, lost or stolen or if DataX exercises its rights pursuant to clause 2.3.2.
4.1 DataX excludes all implied warranties as to the quality, accuracy, performance or fitness for a particular purpose of any Service.
4.2 DataX will ensure that it and its employees and representatives use all reasonable skill and diligence in the performance of the Services provided that under no circumstances shall any failure by DataX to comply with all or any part of the Timetable be a breach of this clause
4.3 DataX reserves the right to use, and permit the use of, the Data for any purpose.
4.4 DataX makes no guarantee that either its own websites or any third party websites relevant to the Services will be accessible at any given times.
4.5 DataX gives no warranty as to the accuracy or composition of the whole or any part of the Data and, in particular (but without prejudice to the general nature of the foregoing):
4.5.1 DataX makes no warranty at any stage that any Data supplied will have been completely Deduped;
4.5.2 The Client accepts and acknowledges that the Data may include any number of seeded control entries to allow DataX to track use and misuse of the Data.
4.6 DataX shall not be liable to the Client for any loss or damage whatsoever or howsoever caused, whether direct, indirect, consequential or economic loss (including loss of profit, business, revenue, goodwill or anticipated savin gs or other economic loss or damage) arising from:
4.6.1 any inaccuracy of or errors or defects in the whole or any part of the Data or any use of or reliance upon any of them, in whole or in part, and, in particular (but without prejudice to the general nature of the foregoing), DataX shall not be liable to the Client in respect of any Data which have Not been correctly De – Duped provided that no such Data shall be counted towards the Total Quantity; or
4.6.2 late or non – performance of the Services; or 4.6.3 negligence on the part of DataX, its employees and/or representatives; or
4.6.4 Otherwise, except to the extent to which it is unlawful to exclude any such liability under any applicable law.
4.7 In the event that any exclusion or limitation of liability contained in this Agreement shall be held to be invalid for any reason and DataX becomes liable to the Client for loss or damage that may lawfully be limited, such liability shall be limited to the level of the Fees paid by the Client in the preceding 12 months.
4.8 Notwithstanding any other provision within this Agreement, DataX does not (nor does it seek to) exclude or limit in any way its liability for death or personal injury caused as a result of the negligence of DataX or its employees, agents or authorised representatives.
4.9 DataX will adhere at all times in accordance with the data protection and other regulatory laws in Ireland , the UK and EU and where a client /brand uses data contrary to the dat a compliance policy set down by DataX which can be viewed HERE , DataX accept no liability of any sort for such use of data or any consequential loss or loss resulting from any regulatory actions as enforced by the Data Protection Commissioners for the local market territory.
4.10 DataX will accept a maximum of 20% rejections from any data provided which is inline with industry normal rules as set down by bodies governing the UK and Ireland where a net names agreement equaling to and not more than 20% of the data provided. Fees will apply for a minimum of 80% of the data supplied regardless of the reasons for rejections unless agreed in advance with DataX as part of the terms of the data supply contract.
5.1 The Client warrants, represents and undertakes to DataX that:
29 Lower Patrick Street, Kilkenny, Co Kilkenny, Ireland
5.1.1 it will keep the Data confidential and use them only as permitted by clause 3 and that it shall take all necessary precautions to ensure that no unauthorised use is made of (and that no unauthorised person gains access to) them, and/or the Security Information in whole or in part including (without limitation) ensuring that appropriate and adequate security systems are in place at all times to protect the Data from being accessed or retrieved by any unauthorised person;
5.1.2 it will not make (nor allow to be made) any copies of the Data without DataX’s prior written consent;
5.1.3 once it has completed use of the Data as permitted by this Agreement, it will immediately delete all copies of the Data in its possession or control;
5.1.4 All Data in possession of the client/end user must be used and deleted within 30 days of Data supply from DataX and a written verification sent to DataX at email@example.com immediately upon deletion.
5.1.5 it will not use the Data (whether on behalf of itself or a third party) except as expressly permitted by this Agreement;
5.1.6 it will not copy, sell, lease, license, sub-license, provide or otherwise make available or otherwise disclose the Data or any copies, in whole or in part, to any third party;
5.1.7 it will, at all times whenever it is handling Data (including, but not limited to, managing returns, unsubscribe requests and incoming queries) and/or entering into any correspondence and/or communication with individuals by reference to the Data:
(i) Comply with all relevant legislation (including the Data Protection Act and the Privacy and Electronic Communications – applicable for both the Irish, UK and EU wide market area.Regulations);
(ii) comply with all applicable guidelines and current best practices (including the ICO’s Electronic Communications Guidance, the British Code of Advertising Practice, the ICSTIS Code and the British Code of Sales Promotion Practice (as appropriate));and
(iii) Not permit the Data to be used by it or on its behalf to distribute or communicate any material which infringes the copyright or any other right of any third party, or which is defamatory, obscene, blasphemous or otherwise illegal orunlawful.
5.2 The Client acknowledges that all intellectual property rights (including without limitation all domain names, copyrights, database rights and trade marks) subsisting in or used in connection with the Data shall be and remain the sole property of DataX.
6.1 DataX agrees to indemnify and save harmless and defend at its own expense the Client from and against any and all claims of infringement of third party rights arising from the provision of Services under this Agreement except to the extent that such claims arise as a result of or in connection with
6.1.1 anything validly excluded in clause 4.6;and/or
6.1.2 Anything the Client shall have done or omitted to do including non-compliance with DataX compliance policy (including acts or omissions of third parties allowed by the Client).
6.2 In the event that any such infringement occurs or may occur, DataX may at its sole option and expense procure for the Client the right to continue using any and all Deliverables or repay to the Client the Fees relating to the whole or the infringing part of the Deliverables.
6.3 The Client undertakes to notify DataX promptly of any claim specified in clause 6.1 that is made against the Client and DataX shall have the right to defend any such claims and make settlements at its own discretion. The Client shall give such assistance as DataX may reasonably require to settle or oppose any suchclaims.
7.1 The Client agrees that the Confidential Information is confidential and proprietary to DataX and agrees that it shall use the Confidential Information solely as specified in this Agreement. The Client shall not at any time during or after expiry or termination of this Agreement disclose any Confidential Information, whether directly or indirectly, to any third party without DataX’s prior written consent.
7.2 Clause 7.1 shall not prevent the disclosure or use by the Client of any information which is or may become, through no fault of the Client, public knowledge, known to the Client other than under a duty of confidence owed (directly or indirectly) to DataX, or to the extent permitted by law.
7.3 The Client shall ensure that this Clause 7 is observed by itself and by its employees.
Ormonde House, 10 Ormonde Road, Kilkenny
8.1 DataX shall be under no liability to the Client in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of circumstances beyond its reasonable control which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, terrorism, war, accident, embargo, labour disputes, riot, civil commotion, acts of local government and parliamentary authority.
9.1 Any order that is cancelled following the signing of an Order confirmation otherwise known as an IO will incur 70% of the original value of the order.
9.1.2 Invoices that are not paid within 30 days will incur a late penalty fee which will commence on the 45th day due, from the original invoice issue date of 4% of the value of the order per month. Such fees will be added to any settlement figure in recovering payment for the original invoice.
9.1.3 In respect of each Service specified on the Contract, this Agreement shall continue in force from the date of signature until the provision of such Service, unless terminated in accordance with the provisions of this clause 9.
9.2 DataX may, by immediate notice in writing to the Client, terminate this Agreement if any of the following events shall occur:
9.2.1 any outstanding Fees are not paid within 30 days of a relevant invoice;
9.2.2 the Client is in breach of any other obligation under this Agreement and where such breach is capable of remedy, fails to remedy it within 7 days of written notice of the breach from DataX;
9.2.3 the Client, being a body corporate, convenes a meeting of its creditors or to pass a resolution for voluntary winding up; presents a petition or has a petition presented by a creditor for its winding up; ceases or threatens to cease to carry on business; goes into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation); has an administrative receiver or receiver and manager or administrator appointed for it or its assets; enters into a voluntary arrangement with its creditors; suffers any similar insolvency process or process which affords it protection from its creditors; or is deemed by relevant statutory provisions to be unable to pay its debts;
9.2.4 The Client shall at any time, in any way question or dispute the ownership by DataX of DataX’s rights described in clause 5.2.
9.3 The Client may terminate this Agreement or the Services on not less than 4 weeks’ written notice to DataX prior to the Start Date but shall remain liable to DataX for any Fees relating to any work carried out by DataX prior to such notice in respect of this Agreement or the Services so terminated.
9.4 Upon termination, DataX may immediately cancel the provision of all Services and the Client shall immediately:
9.4.1 pay all outstanding sums due to DataX, under this Agreement or otherwise; and
9.4.2 Cease all further use of the Data and return to DataX or destroy any copies of the Data.
9.5 Termination, howsoever or whenever occasioned shall be subject to any rights and remedies DatanX may have under this Agreement or in law.
10.1 DataX may assign or sublicense its rights and obligations, in whole or in part, under this Agreement to any third party with the consent of the Client (such consent not to be unreasonably withheld or delayed). The Client shall not (and shall not purport to) assign, sublicense or charge its rights or obligations, in whole or in part, under this Agreement to any third party.
10.2 Nothing in this Agreement is deemed to constitute a partnership between DataX and the Client, nor constitute either as the agent of the other for any purpose.
10.3 No relaxation, forbearance delay or indulgence by either party in enforcing any of the terms and conditions of this Agreement, or the granting of time by either party, shall prejudice or restrict the rights and powers of that party under this Agreement nor shall any waiver by either party of any breach of this Agreement operate as a waiver of or in relation to any subsequent or any continuing breach of this Agreement.
10.4 The rights and remedies of each of the parties under or pursuant to this Agreement are cumulative, may be exercised as often as such party considers appropriate and are in addition to its rights and remedies under general law.
10.5 No amendment or other variation to this Agreement shall be effective unless it is in writing is dated and is signed by a duly authorised representative of each party.
10.6 In the event that any of the terms, conditions or provisions contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
10.7 Any notice to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall be deemed served on a party if given personally, left at or sent by prepaid recorded delivery or faxed or emailed to that party at the addresses or numbers set out in the Contract, or such others as may be notified from time totime.
10.8 No term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party toit.
5 DataXcel Ltd
29 Lower Patrick Street,
10.9 This Agreement shall be governed by and construed in accordance with Irish law and the parties hereby submit for to the exclusive jurisdiction of the courts of Ireland.