TERMS AND CONDITIONS

These Terms and Conditions are effective from 20th May 2007 and apply to the purchase of any services via this website.

Acceptance of these Terms and Conditions means that they will apply to the use of the services (as defined below) via this account, and will supersede any Terms and Conditions previously signed. Unless otherwise agreed, any previous pricing agreements with the Marine Product Index will remain in force.

1. Definitions

1.1 Some words and phrases used in these Terms and Conditions have special meanings. These meanings are set out below:

• Application Information
  Information supplied to us by you for potential purchasers of your products or services so that we can perform the Services.
• Application Fees
  The fees you pay for the Services. These are set out in the Pricing Schedule (unless otherwise agreed by us in writing). If these are not contained in the Pricing Schedule then our standard charges available through our Customer Services will apply (unless otherwise agreed by us in writing).
• Company Group Members
  Your subsidiaries, holding company and/or the other subsidiaries of your holding company.
• Commencement Date
  The date specified in the Pricing Schedule or if none is specified the date on which you first use the Services (unless otherwise agreed by us in writing).
• Data
  The information we provide to you as part of the Services.
• Equipment
  Your computer hardware/modem/CD-ROM reader.
• Hardware
  Any computer hardware/modem/CD-ROM reader we provide upon which the Software is to be used.
• Initial Term
  The period starting on the Commencement Date (or earlier) during which you will pay Application Fees as set out in the Pricing Schedule.
• Information
  The reports and the information, including Data and any information that does not relate directly to the Services, that we provide to you.
• Pricing Schedule
  The schedule attached to these Terms and Conditions or any other schedule agreed by you and us which contains details of your use of our services and refers to these Terms and Conditions.
• Services
  The business information and related services we provide to you through the Website or any programs comprised in the Software.
• Software
  Our software or any other software we provide for you to use the Services. This includes any software accessed on-line or downloaded from the Website.
• Subsequent Term
  Any period of 12 months starting on the expiry of the Initial Term or a previous Subsequent Term during which you will pay Application Fees.
• Term
  The period of the Initial Term as extended by any Subsequent Term until termination of this agreement.
• We
  Means the Marine Product Index a trading name of Esphera Solutions Ltd (company registered in England number 4757685 ) our registered office is at Tower House, Parkstone Road, Poole, BH15 2JH .
• Website
  The website located at www.marineproductindex.com or any other website through which we deliver our business information services.
• You
  Means the person, firm or company which we accept as a registered account holder in respect of our business information data services.

1.2 The headings used in these Terms and Conditions are for convenience only and do not affect the construction of these Terms and Conditions.

2. Period of Agreement

2.1 Your entitlement to receive the Services starts on the Commencement Date and continues until terminated in accordance with these Terms and Conditions.

3. The Services

3.1 We will provide the Services, Hardware and Software in accordance with these Terms and Conditions.

3.2 Your use of the Services, Hardware and Software is subject to these Terms and Conditions.

3.3 We can at any time vary the nature of the Services or stop providing the Services or any part of the Services, due to circumstances beyond our reasonable control.

3.4 We will tell you in writing if we amend or vary these Terms and Conditions. Such amended or varied Terms and Conditions shall apply to the provision of Services after the date on which you receive our written notice.

3.5 If you do not agree with the amendment or variation then you may write to us within 28 days of receiving our written notification and terminate your entitlement to receive the Services. In these circumstances you will be obliged to pay all outstanding Application Fees up to the date of termination.

4. Payment of Application Fees

4.1 You will pay the Application Fees for the Services. You will pay for any Software or Hardware you request at our standard rates (unless set out in the Pricing Schedule).

4.2 We can invoice you at any time after the end of each calendar month for the Application Fees you incur in that calendar month. You will pay each invoice within thirty days of the date on which you receive it or, if we agreed in writing, by direct debit to our nominated bank account.

4.3 If you do not pay the Application Fees on time we can write to you and inform you that we will charge you interest on the outstanding amount. This will not affect any other remedies that are available to us. Interest will be charged at 2% per annum above HSBC Bank plc base from the date on which you receive our written notice until the date on which we are paid (whether before or after any court judgement). You will pay any costs incurred for pursuing outstanding invoices.

4.4 All sums payable to us do not include Value Added Tax, or any other duty, which will be charged at the prevailing rate.

4.5 You will pay for the Services on an as used basis in accordance with the standard charges available through our Customer Services.

5. Licence

5.1 We grant you a non-exclusive, non-transferable licence to use the Services solely at the locations set out in the Pricing Schedule and in accordance with these Terms and Conditions.

5.2 This licence will start on the date you are notified of your username and password and expire on the termination of your entitlement to receive the Services.

6. Use of Services

6.1 You may only use the Services in the following manner and undertake:

• not to copy, reproduce, translate, adapt, vary or modify the Services (unless expressly permitted by statute)
• not to disclose, communicate or make the Services available to anyone else without our prior written consent (unless expressly permitted by statute)
• to notify us if you become aware of any unauthorised copying, disclosure or use of the Services and if we request take such steps necessary to prevent further unauthorised copying, disclosure or use
• to supervise and control the use of the Services in accordance with these Terms and Conditions
• to protect the Services from and against theft destruction or damage
• not to provide or otherwise make the Services available (in whole or in part and in any form) to any person other than your employees who need to have access to the Services in order to properly use the Services
• to ensure that the Services are used in the operating environment and in accordance with other operating instructions that we reasonably specify
• to ensure that the Equipment complies with any minimum requirements that we specify.

6.2 You acknowledge that the Software is licensed to you for the sole purpose of being able to receive and operate the Services. You agree that you will only use the Software for such purposes. You may use other software on your Equipment but do so at your own risk.

6.3 We do not accept any liability for loss or damage of any kind whether direct, indirect and/or consequential caused by your use of other software on your Equipment.

7. Copyright and Confidentiality

7.1 All of the intellectual property rights (including copyright and database right) in the Information belong to us, or our licensors. You will not acquire any proprietary rights to the Information and may only make such copies of the Information as you reasonably require for the purposes set out below.

7.2 The rights granted to you to use the information are personal to you and you may only use the Information for the internal purposes of your business and (unless required by law) will:

• keep the Information strictly confidential.
• not publish the Information.
• not divulge or disclose the Information to anyone else.
• only permit access to the Information to your officers and/or employees who need to know or use them. You will ensure that your officers and employees comply with these confidentiality provisions.
• not copy, distribute or commercially exploit the Information unless expressly permitted by these Terms and Conditions.
• not use the Information for or on behalf of anyone else.

7.3 You undertake not to use, or permit others to use, the Information to provide product enquiry services to anyone else. This restriction does not prevent you from sharing the Information with your Company Group Members. However, you must ensure that the provisions under the headings "Licence", "Use of the Software and Hardware" and "Confidentiality" also bind your Company Group Members.

8. Application Information

8.1 You grant to us a royalty-free, non-transferrable, perpetual licence to use the Application Information. We can use the Application Information to enhance the databases we use to provide the Services and any other databases, including those we use to provide similar services and other risk and fraud prevention services to others.

9. Our Undertaking

9.1 If, in our reasonable opinion, a defect in the Software or the Hardware prevents you from obtaining the Services then we undertake to use all reasonable endeavours to procure the repair of such defect within a reasonable time. This Undertaking only applies whilst you are entitled to receive the Services and on the condition that you give us, our agents or subcontractors all reasonable assistance in respect of procuring such repair.

9.2 This undertaking is our entire liability in respect of defects in the Software and/or Hardware. This undertaking does not apply to Software and/or Hardware which has been damaged or rendered defective by:

• your neglect or misuse of the Services
• your failure to operate the Services in accordance with the provisions under the heading "Use of the Services"
• any alteration modification or maintenance of the Services by you or anyone else without our prior written approval
• the use of software (or equipment) not provided by us
• by any computer virus which does not originate from us
• your failure to allow us or our representatives access to the Services using your Username/Password.

9.3 We can charge you for call out charges at our standard rates and for any work we carry out on the Software and/or Hardware where such work is not covered by this undertaking.

9.4 We further undertake that whilst you are entitled to receive the Services to supply you with updates to the Data and Software. We will provide these updates at the times and frequency specified in the Pricing Schedule or as we may otherwise agreed with you. Such updates will be taken as forming part of the Data and Software for the purpose of these Terms and Conditions.

10. Ownership of the Software

10.1 All the intellectual property rights (including copyright) in the Software shall belong to us, or our licensors. You acknowledge that you will not obtain any title or rights in the Software. This does not affect any of the provisions under the headings "Use of the Software" or "Copyright and Confidentiality".

10.2 You will be responsible for the Software and Hardware once it is delivered to you.

11. Security

11.1 You will comply with any rules and guidelines that we reasonably prescribed in relation to the manner in which we provide the Services. We will adopt such measures necessary to ensure the security of the Information and/or the Services.

11.2 We will provide you with an individual identification, which we call "Username". Only the individual to whom it is issued may use the Username and must be used in conjunction with a Password. The Username cannot be transferred to or used by other users.

11.3 You acknowledge and agree that control of and security for your Username/Password is your sole responsibility and that we have no liability at all for any losses (whether direct, indirect or consequential) arising from any use of your Username/Password by any persons, whether authorised by you or not this includes unauthorised access to your computers and/or network or any information not deleted when these systems are updated or replaced. We can issue you with new Username/Password at any time. Any new Username/Password will take effect 24 hours after we notify you of the new Username/Password.

11.5 You also agree that you will: maintain appropriate technical and organisational security measures and procedures to prevent the accidental or unauthorised disclosure of your Username/Password or its use by unauthorised persons inform us as soon as you become aware of any unauthorised use and/or disclosure of your Username/Password, or if any equipment you use to access the Services is stolen be liable for any and all Charges incurred in connection with the Username/PasswordD whether or not you authorise such Charges.

11.6 We may invalidate or suspend use of your Username/Password if: you break any of your obligations under these Terms and Conditions we are notified of, or become aware of, any unauthorised or improper use of your Username/Password (either by you or someone else) or of the fact that any of the equipment you use to access the Services has been stolen.

12. Performance and Liability

12.1 You agree and acknowledge that you will not use the Information as the sole basis for any of your business decisions.

12.2 You acknowledge that the Information is based on information provided to us by others and that we cannot control the accuracy of this information, which may also contain expressions of advice or opinion.

12.3 We use all reasonable skill and care to provide the Services. However, you agree that it is reasonable for us to limit our liability. In particular we: do not warrant the accuracy of the Information or the validity of any advice given or opinion expressed are not liable for any loss of any kind which you suffer as a result of a claim by a subject of the Information, advice or opinion.

12.4 We are not liable to you for any of the following as a result of our negligence, breach of contract, other tort or otherwise:

• indirect or consequential loss
• loss of profit, loss of sales or increase in (or failure to reduce) bad debts
• loss of business.

12.5 Our total liability to you in any year (starting on the Commencement Date or subsequent anniversary of that date) for all claims for negligence, breach of contract, tort or otherwise is limited. In the first year our liability does not exceed the amount payable by you for the Services provided during that year. In subsequent years our liability does not exceed the amount payable by you for the Services provided in the previous year.

12.6 We do not give any representations, warranties, conditions, undertakings, or terms (either express or implied):

• as to the fitness for a particular purpose of the Services and/or the Information
• that the Services and/or Information will meet your requirements
• that provision of the Services will be uninterrupted, timely, secure or error free.

12.7 We exclude all such representations, warranties, conditions, undertakings and terms to the fullest extent permitted by statute.

12.8 Nothing in these Terms and Conditions excludes our liability for death or personal injury arising out of our negligence.

12.9 You will protect us and keep us fully protected against any claims or actions made or brought against us as a result of:

• you rendering the Information inaccurate or incomplete (whether by an act or omission)
• your use of the Services.

This protection shall include all losses, damages, costs and other expenses (including any payments we make to settle any such claims or actions on the advice of our lawyers) that we incur and you promise to pay us or reimburse us if there is any such loss, damage, cost or other expense. This protection will not apply where we are in default.

13. General Confidentiality

13.1 We both will ensure that our respective officers, employees and agents shall, maintain in strictest confidence and not divulge or communicate to anyone else any Confidential Information relating to the other. This shall not affect any of the other part of these Terms and Conditions.

13.2 "Confidential Information" means (as the context may require): any information concerning either of our trade secrets, customer, business dealings, transactions or affairs which may come to the notice of the other party any information and/or knowledge relating to the methods or techniques we use to provide the Services and/or Information. These include any tapes, documents or other materials comprising any part of such information and/or know how we make available to each other any information and/or knowledge relating to the methods or techniques we use to design or develop the Software, including any tapes, documents or other materials comprising any part of the Software and/or know how we make available to you.

13.3 These provisions do not apply to any Confidential Information which: either you or we are required to divulge by a Court, tribunal or governmental authority with competent jurisdiction. is already public knowledge, other than where either you or we break these confidentiality provisions. was already known to the recipient before the date of disclosure (as evidenced by written records). was independently obtained from someone else, without that person breaking any confidentiality obligations they have to either you or we.

13.4 You grant us a perpetual, royalty-free, transferable licence to use data relating to your use of the Services and your payment record within our other products and services.

14. Co-operation and Assistance

14.1 You shall at your own cost co-operate with us to such extent and provide to us such information and assistance as we reasonably require to perform our obligations in relation to the Services.

15. Termination

15.1 Either of us may terminate your entitlement to receive the Services by giving the other not less than 30 days prior written notice unless otherwise agreed by the parties. Such notice will not take effect until the end of the Term in which it is made.

15.2 Either you or we may terminate your entitlement to receive the Services by written notice if: either you or us break this agreement and fail to remedy that breach within seven days of receiving written notice of the breach from the other to that effect an order or resolution is made or passed to wind up the other (unless this is solely for the purpose of reconstruction or amalgamation) if the other becomes insolvent or has an administrator or administrative receiver is appointed over it's assets Such notice will take effect immediately or on the date specified in the notice.

15.3 Not using or infrequently using the Services can be an indication of possible fraud. We therefore may terminate your entitlement to use the Services by written notice if:

• you make no use of the Services for a continuous period of 6 months; or
• the charges which you incur in relation to the Services in any continuous period of 12 months are less than £500 plus VAT (or such other minimum spend figure as we apply generally to our clients of the Services at any time).

We may also suspend your use of the Services if we have any other reason to believe that the Services may be being used for the purpose of fraud. We will notify you if we exercise this right to suspend, and will give due consideration (through our standard procedures) to any request you make for the Services to be re-instated. If, however, we then remain of the view that the risk of fraud remains, or if you have not made a request for reinstatement within a reasonable time period set by us, we may terminate your entitlement to use the Services by written notice.

15.4 Termination will not affect: any other rights either you or we may have acquired before termination any part of these Terms and Conditions intended to survive termination.

15.5 We will invalidate your Username and password as soon as termination occurs. Immediately upon termination you will deliver to us:

• any documents provided to you in connection with the Services
• all copies of our Confidential Information.

15.6 Any licence granted to you will cease immediately on termination of these Terms and Conditions.

16. Statutory Compliance

16.1 Both of us undertake to each other that in respect of the provision and use of the Services (as appropriate) we will both comply fully with all relevant statutory enactments. These include without limitation: the Consumer Credit Act 1974 the Data Protection Act 1998 (including the Data Protection principles) all re-enactments and amendments to the acts above any regulations or requirements made by any governmental authority or equivalent body of competent jurisdiction.

16.2 You further undertake to us that:

• you hold all necessary registrations and licences prior to your use of the Services.
• you will obtain all necessary consent from individuals in order to gain access to and make use of personal data. This includes consent from individuals acting in the capacity of a director, a partner or sole-trader of a business against which we are carrying out searches on your behalf.
• you will use wording proposed by us (if any) when obtaining all necessary consents. If you fail to obtain any necessary consent we are not obliged to provide the relevant part of the Services or in our discretion may provide an alternative service that does not make use of personal data.

16.3 You warrant that you have in place and will maintain: appropriate technical and organisational measures against accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of the Data adequate security programmes and procedures to ensure that unauthorised persons do not have access to equipment used to process the Data or on which Data is stored.

17. Force Majeure

17.1 If either of us are unable wholly or in part to carry out our obligations by "force majeure" then whichever party cannot perform its obligations will notify the other of such "force majeure". The obligations of the party giving such notice shall be suspended to the extent that they are affected "force majeure". That party shall use all reasonable endeavours to remove or avoid the "force majeure" as soon as possible.

17.2 The term "force majeure" shall mean the following acts or circumstances which by exercising due diligence neither of us can prevent: acts of God strikes, lockouts or other industrial disturbances acts of public enemy, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fire, storm, civil disturbances and terrorism governmental or quasi-governmental regulations and directions any failure of hardware and/or software and/or telecommunications services or equipment which is used by us to provide the Services which is due to the default of someone else any other cause not within the reasonable control of the party claiming suspension.

17.3 If either your or our obligations are suspended as a result of "force majeure" for more than 30 days then either of us may terminate your entitlement to receive the Services on written notice.

18. Assignment

18.1 The rights granted by these Terms and Conditions are personal. Neither of us can assign or grant any of these rights to anyone else without the prior written consent of the other. Such consent not to be unreasonably withheld or delayed.

19. Waiver

19.1 If either of us fails to exercise any right or remedy available under these Terms and Conditions then such failure or delay will not prevent either of us from relying on those rights or remedies in the future.

20. Entire Agreement

20.1 These Terms and Conditions and the Pricing Schedule are the whole agreement between both of us. They supersede all previous negotiations, understandings and/or representations. These Terms and Conditions may only be varied in writing, signed by both our duly authorised representative (except to the extent that either of us has relied upon a fraudulent misrepresentation of the other which induced either that party to agree to these Terms and Conditions).

20.2 If these Terms and Conditions conflict with any other terms posted or available on the Website at any time (including but not limited to the Terms of Use) then these Terms and Conditions shall prevail. References in this document to these "Terms and Conditions" shall be to these Terms and Conditions as amended or varied at any time.

21. Severance

21.1 If any part of these Terms and Conditions is found to be invalid by a court it shall be deleted and the rest of these Terms and Conditions will remain in full force and effect.

22. Law

22.1 These Terms and Conditions shall be governed by, and construed in accordance with, English law. We both agree that the Courts of England shall have exclusive jurisdiction to settle any dispute that may arise out of, under, or in connection with these Terms and Conditions.

23. Notices

23.1 All notices must be in writing and sent by recorded delivery post or facsimile or e-mail. If we write to you we will use the address or facsimile number or e-mail set out in your application to receive the Services. You can write to us at the address shown on the Website if this is from our registered office address.

23.2 All notices are deemed received: if posted to the correct address - two working days after being posted if sent by facsimile to the correct facsimile number - one hour after transmission if sent by facsimile outside the normal working hours of the addressee - one hour after the re-opening for business of the addressee if sent by e mail to the correct e mail address when a receipt notification is received. Service by facsimile is only effective if the original of the facsimile is placed in the post the same day as the facsimile is transmitted.

24. Third Party Rights

24.1 Only you and we have legal rights under these Terms and Conditions. It is not intended that any part of these Terms and Conditions will be enforceable, by virtue of the Contract (Rights of Third Parties) Act 1999, by any other person.