DBS e-Bulk agreement
This agreement is made between Eurocom C.I. Ltd of Stonebridge House, 28-32 Bridge Street, Leatherhead, KT22 8BZ
The Client wishes Eurocom C.I. Ltd to provide certain online services to the Client and Eurocom C.I. Ltd wishes to provide such services. By indicating that you agree to these conditions the parties agree to be bound by the terms of this agreement.
The Client is permitted to make use of the DBS checks facility for the sole purpose of obtaining Disclosure & Barring Service information as specified under the Police Act 1997. For the avoidance of doubt, the Client will not be using the Services for any other purpose whatsoever unless specified and agreed by Eurocom C.I. Ltd.
The Client shall pay Eurocom C.I. Ltd in advance for the use of the services at the rates agreed at the commencement of this agreement and adjusted from time to time to take account of any volume discounts. DBS fees are exempt from VAT and only the Eurocom C.I. Ltd admin fee is subject to VAT at the current rate.DEFINITIONS
In this agreement the terms here specifically defined have the meanings assigned. ‘Buyer ’ shall mean any individual/organisation that has entered into an End-User Agreement with the Client in respect of the use of the Output Result.
‘Web Sites’ means all and any Internet Database or Web Sites operated by Eurocom C.I. Ltd from time to time.
‘Client Materials’ means all Client data and materials made available to the ‘Client’ pursuant to this agreement including (without limitation) data input onto Eurocom ’s databases by (or on behalf of) the Client as part of the Services.
‘Confidential Information’ means all trade secret and confidential or proprietary information of each party including (but not limited to) information concerning its products, services, customers, suppliers, business accounts, financial or contractual arrangements or other dealings, computer systems, test data, software, source and object code, business methods and development plans, contained in any format and whether or not communicated orally and whether or not marked “confidential “;
‘Documentation’ means all user guides provided by Eurocom C.i.Ltd to the Client in respect of the Services.
‘DP’ means the Data Protection Act 1998.
‘End-User agreement’ means an agreement entered into between the Client and the Buyer in respect of the use of the Output Result (Disclosure Result which End-User Agreement must contain the Mandatory Terms).
‘Mandatory Terms’ shall mean those terms more particularly specified in Appendix 1.
‘Output’ means all data, scores, reports, documents and other output and information provided by Eurocom C.I.Ltd as part of the Services.
‘Output Result’ means a verbal statement given by the Client to verify (or otherwise, as the case may be) that the data supplied by the Criminal Records bureau in respect of the applicant’s identity corresponds with the data contained within the Output.
‘Permitted Purpose’ means in respect of the Services the purpose set out in the Schedule.
‘Services’ means the provision of the Output and, where appropriate, Software, Documentation and consultancy by Eurocom C.I. Ltd to the Client as more particularly specified in the schedule including where agreed between the parties access to Eurocom ’s Database or Web Sites and includes the Output Result.
‘Service Start Date’ means the date upon which the Services are first made available to the Client.
‘Software’ means all software utilised by or made available by Eurocom C.I. Ltd in connection with the Services.
‘Year ’ means each period of twelve consecutive months commencing on the Service Start Date or any anniversary thereof.
This agreement shall be deemed to have commenced on the date acknowledged by both parties or (if earlier) on the Service Start Date and (subject to earlier termination in accordance with the provisions of clause 12) shall continue in effect for an undetermined period and thereafter until terminated by either party giving to the other not less than 30 days prior written notice (such notice to expire on the last day of the Initial Period or on any anniversary of that date).
3. SUPPLY OF THE SERVICES
3.1 Eurocom C.I. Ltd shall use reasonable care and skill in the provision of the Services.
3.2 Eurocom C.I. Ltd may from time to time change the form and content of the Services and/or upgrade or modify any of the methods used to access the Services, in such circumstances Eurocom C.I. Ltd shall use reasonable endeavours to give the Client not less than 2 months ’ prior notice of such proposed change, upgrade or modification and shall have due regard to the interests of the Client.
3.3 The Client shall ensure that it has the necessary facilities as notified by Eurocom C.I. Ltd (including but not limited to, computer hardware, software and communications equipment) to obtain access to the Services.
4. SOFTWARE AND DOCUMENTATION
5. USE OF THE SERVICES
5.1 Eurocom C.I. Ltd licences the Client to use the Services with effect from the Service Start Date and for the duration of this agreement for the Permitted Purpose only. The Client shall not use the Services for any other purposes whatsoever.
5.2 The Client shall not sell, transfer, distribute or otherwise make the Services available to, or use the Services on behalf of, any third party.
5.3 Notwithstanding clause 5.2, the Client shall be permitted to make the Output Result only available to Buyers for their own internal purposes for the Permitted Purpose only provided that:
5.3.1 the Client does not pass the Output itself (in any form whatsoever) to the Buyer or to any other party;
5.3.2 the Client has entered into (and enforces) an End-User Agreement with each Buyer;
5.3.3 the Client shall indemnify Eurocom C.I. Ltd and keep it indemnified against all costs, claims, demands and expenses (including without limitation legal expenses) arising out of or in connection with any claims made against Eurocom C.I. Ltd by any Buyer or Seller arising as a result of the Client making the Output Result available to any Buyer.
5.4 The Client shall only make the Output Result available to a Buyer subject to the terms and conditions set out in the End-User Agreement.
5.5 Without prejudice to the generality of clause 5.4, the Client is responsible for ensuring that the Output and the Output Result is not detrimentally affected by the fact that the Output and the Output Result is delivered via, utilised, modified, amended or interpreted by the Client and shall indemnify Eurocom C.I. Ltd and keep Eurocom C.I. Ltd fully and effectively indemnified against all losses, costs, claims, demands and expenses suffered or incurred by Eurocom C.I. Ltd as a result of the Output or Output Result being affected by reason of being delivered via, utilised, modified, amended or interpreted by the Client.
5.6 The Client shall not itself and shall procure that each Buyer shall not: (i) do anything which will render the Output and the Output Result inaccurate; (ii) in any way devalue the Output and the Output Result; or (iii) place itself or Eurocom C.I. Ltd in breach of any legislation including without limitation the DPA.
5.7 The Client shall obtain the explicit consent of any person who is the subject of any search carried out by a Buyer pursuant to the Services (hereinafter ‘Data Subject ’) prior to any such search being carried out on such Data Subject.
5.8 The Client shall obtain the explicit consent of the Data Subject that the search footprint to be retained by Eurocom C.I. Ltd in respect of a search made using the Services, will read as having been made by the Client rather than the Buyer.
5.9 All training, sales, advertising and marketing material utilised by the Client in respect of any part of the Services (including without limitation the name of Eurocom C.I. Ltd) must be approved in advance by Eurocom C.I. Ltd prior to live use by the Client.
6.1 Title, copyright and all other intellectual property rights in the Services shall at all times remain vested in Eurocom C.I. Ltd (or its third party licensors) and the Client shall acquire no rights whatsoever therein save as expressly provided in this agreement.
6.2 Title, copyright and all other intellectual property rights in the Client Materials shall at all times remain vested in the Client and Eurocom C.I. Ltd shall acquire no rights whatsoever therein save as expressly provided in this agreement.
6.3 The Client grants to Eurocom C.I. Ltd a non-transferable, non-exclusive license to use and copy the Client Materials to enable Eurocom C.I. Ltd to carry out its obligations under this agreement.
7. COMPLIANCE WITH LAWS
7.1 Eurocom C.I. Ltd and the Client shall at all times in respect of the subject matter of this agreement comply with all applicable laws, regulations and rules having equivalent effect including without limitation, the CRB, the DPA and the Regulations (as hereinafter defined). In particular, but without limiting the above, Eurocom C.I. Ltd and the Client shall ensure that:
7.1.1 Each holds all appropriate licences under the CCA and complies with such licences;
7.1.2 Each is notified under the DPA and conducts its business in accordance with such
7.1.3 Each complies with the Data Protection Principles referred to in the DPA.
7.2 The Client acknowledges that the supply of the Services by Eurocom C.I. Ltd and use thereof is governed by various statutes regulatory requirements, codes of practice and guidelines relating to the use, provision and sharing of personal data, including without limitation, the Principles of Reciprocity (being the rules (as amended from time to time) established by the Steering Committee on Reciprocity which is an unincorporated body that governs the use of shared data in the credit industry) and the Representation of the People (England and Wales) (Amendment) Regulations 2002 ( collectively ‘the Regulations ’) and that the Regulations may change from time to time. The Client agrees that Eurocom C.I. Ltd may cease providing the whole or part of the Services if necessary in order to enable Eurocom C.I. Ltd to comply with the Regulations in which case Eurocom C.I. Ltd shall not be deemed to be in breach of this agreement.
7.3 The Client is responsible for ensuring that it retains sufficient records and audits in respect of data utilised and searches made in respect of the Services as may be required by any regulator from time to time. Eurocom C.I. Ltd is not responsible for retaining such information.
8.1 Each party will employ operational and technological processes and procedures in accordance with best industry practice in respect of security against unauthorised use, access , loss , destruction , theft or disclosure of the Services and the other party ’s Confidential Information.
8.2 The Client s hall comply with all of Eurocom C.I. Ltd ’s reasonable security rules and regulations in place from time to time in respect of access to the Services including without limitation those relating to restrictions on password use.
8.3 Where the Client is granted access to Eurocom C.I. Ltd ’s Database or Web Site it shall not access or attempt to access any part of Eurocom C.I. Ltd ’s Database or Web Site that the Client does not have express authority to access.
8.4 The Client shall not carry out any linking of pages of any Eurocom C.I. Ltd Database or Web Site nor shall it incorporate any part of Eurocom C.I. Ltd ’s Database or Web Site a s part of the Client’s own web site or that of any other party.
9.1 Without prejudice to the provisions of clause 8 and subject to clause 9.3, each party shall in respect of the other party ’s Confidential Information:
9.1.1 keep the Confidential Information in strictest confidence and not make the same available to any third party; and
9.1.2 only use the Confidential Information for the purposes of this agreement and ensure that only those of its employees who need to know have access to the Confidential Information; and
9.1.3 ensure that before any employee is allowed access to the Confidential Information, the duty of confidentiality under this clause 9 is brought to his or her attention.
9.2 Clause 9.1 survives the expiry or termination of this agreement.
9.3 Clause 9.1 does not apply to Confidential Information to the extent that:
9.3.1 it is in the public domain at the date of its disclosure or subsequently comes in to the public domain otherwise than by breach of this agreement; or
9.3.2 the receiving party can show was lawfully in its possession or known to it by being in its use or being recorded in its files or computers or other recording media prior to receipt from the disclosing party, or which has been lawfully developed by or for the receiving party independently of any Confidential Information disclosed to it by the disclosing party; or
9.3.3 it is lawfully disclosed to the receiving party by any third party and is not the subject of any restriction as to its use or disclosure imposed by or on that third party at the time of provision; or
9.3.4 the receiving party is obliged to disclose it by law, by any court of competent jurisdiction or any regulatory body provided that (where permitted by law) it gives the disclosing party reasonable notice of such disclosure and the reason for the disclosure; or
9.3.5 provision of the Services requires Eurocom C.I. Ltd to make the Confidential Information available to sub-contractors or third party data suppliers who are the subject to similar obligations of confidentiality; or
9.3.6 disclosure of the Confidential Information to third parties by the receiving party is permitted under the terms of this agreement or has been authorised in writing by the disclosing party.
10.1 The Client acknowledges (i) that data is supplied to Eurocom C.I. Ltd by third parties over whom Eurocom C.I. Ltd has no control and (ii) that where the Output, Output Result or information is transferred over the Internet it may be subject to interference by third parties. Therefore Eurocom C.I. Ltd can give no warranties as to the accuracy of the Output or Output Result.
10.2 Eurocom C.I. Ltd makes no representations as to the suitability of the Output or Output Result for any particular purposes. The Client is responsible for satisfying itself that the Output and Output Result are suitable for any use to which the Client wishes to put them.
10.3 The Client acknowledges that where any Eurocom C.I. Ltd Web Site contains a link to another third party Database or Web Site, Eurocom C.I. Ltd is not liable for the nature or content of that other Database or Web Site nor for the accuracy of the material contained within that other Web Site as such websites are outside Civil and Corporate Security ’s control ;
10.4 Eurocom C.I. Ltd advises that the Client does not use the Services as the sole basis for any business decision and shall not be liable for any losses suffered as a result of the Client doing so.
10.5 Eurocom C.I. Ltd shall not be liable for any indirect or consequential loss or damage arising out of or in connection with this agreement or its subject matter even if Eurocom C.I. Ltd had notice of the possibility of such loss.
10.6 Eurocom C.I. Ltd shall not be liable for any loss of business, loss of profits, loss of anticipated savings, loss of reputation, loss of goodwill or business interruption or increase in bad debt arising out of or in connection with this agreement or its subject matter even if Eurocom C.I. Ltd had notice of the possibility of such loss.
10.7 Eurocom C.I. Ltd’s entire liability in respect of all claims arising out of or in connection with this agreement or its subject matter in any Year shall not exceed an amount equal to the sums received by or due to Eurocom C.I. Ltd from the Client under this agreement during that Year.
10.8 Notwithstanding any other term of this agreement, Eurocom C.I. Ltd does not limit or exclude liability for death or personal injury arising from its negligence.
10.9 Except as expressly provided in this agreement, all conditions and warranties or terms of equivalent effect whether express or implied (by statute or otherwise) are excluded to the fullest extent permitted by law.
11. PAYMENT AND COSTS
11.1 The Client will pay Eurocom C.I. Ltd’s charges for the Services as set out in the schedule.
11.2 All sums due must be paid in advance of the date of Eurocom C.I. Ltd’s invoice. The Client shall pay interest on any overdue payment at the rate of 2% above Barclays Bank plc base rate from time to time or, if that base rate ceases to be published, Eurocom C.I. Ltd and the Client shall agree another comparable replacement base rate (such agreement not to be unreasonably withheld or delayed) from the due date until the date of payment, such interest to accrue on a daily basis both before and after judgment.
11.3 Value added tax is to be paid by the Client at the prevailing rate on all sums due under this agreement.
11.4 The charges payable under this agreement are subject to receipt by Eurocom C.I. Ltd of the Minimum Throughput Amount in the first Year of this agreement. If the minimum Volume Amount of usage has not been met then Eurocom CI Limited reserve the right to invoice additional fees and/or deduct admin fees from payments held on account.
11.5 The charges payable under this agreement are also subject to the Client carrying out the Minimum Volume Amount of usage of the Services in the first Year of this agreement.
12. SUSPENSION & TERMINATION
12.1 If the Client breaches any of its obligations under this agreement or if any Buyer breaches any of its obligations under the End-User Agreement, Eurocom C.I. Ltd shall be entitled to suspend the whole or part of the Services immediately.
12.2 For the avoidance of doubt, suspension of the Services pursuant to clause 12.1 shall not affect the Client’s obligations under clause 11.
12.3 Eurocom C.I. Ltd may also suspend the Services in response to or in compliance with any law, statute, legislation, order, regulation or guidance issued by government, a court of law, an emergency service or any other competent regulatory authority or if the security processes set up to protect the Services are breached in any way.
12.4 Either Eurocom C.I. Ltd or the Client may terminate this agreement immediately on notice if:
12.4.1 the other commits any material breach of this agreement and such breach (where capable of remedy) is not remedied to the non defaulting party ’s reasonable satisfaction within 14 days of notice specifying the breach and requiring its remedy;
12.4.2 in respect of the other a resolution is passed or an order is made for winding up (save for the purpose of a bona fide reconstruction or amalgamation);or
12.4.3 in respect of the other an administration order is made, or a receiver or administrative receiver is appointed over any of its property or assets; or
12.4.4 the other is dissolved or is insolvent or would be taken to be insolvent under section 123 of the Insolvency Act 1986.
12.5 Eurocom C.I. Ltd may terminate this agreement at any time if any Buyer breaches its End User Agreement.
12.6 On termination of this agreement for whatever reason, the Client shall:
12.6.1 as soon as reasonably practicable delete all electronic copies and destroy all physical copies of any Output and Output Result in its possession or control; and
12.6.2 return to Eurocom C.I. Ltd all assets which Eurocom C.I. Ltd has provided for the purposes of this agreement including without limitation the Software and the Documentation and any other materials provided by Eurocom C.I. Ltd relating to the Services (and all copies thereof); and
12.6.3 provide Eurocom C.I. Ltd with a certificate of compliance with the provisions of this clause signed by a duly authorised officer.
12.7 Termination is without prejudice to any antecedent breach or to any continuing obligation12.8 After 12 months of inactivity on a Client’s eBulk account, the account will be closed automatically without notice. Any residual funds held in the Client’s account will be deemed to have been used as account administration fee.
13. AUDIT OF BOTH PARTIES
13.1 Eurocom C.I. Ltd agrees that, subject ‘The Client’ being given reasonable prior written notice, it shall permit the Client and its authorised independent auditors to have reasonable access during Eurocom C.I. Ltd ’s normal business hours to Eurocom C.I. Ltd ’s relevant premises and relevant operations for the sole purpose of ensuring that it is complying with its obligations under this agreement.
13.2 The Client agrees that, subject to the Client being given reasonable prior written notice, it shall permit Eurocom C.I. Ltd and its authorised independent auditors to have reasonable access during the Client ’s normal business hours to the Client’s relevant premises and relevant operations for the sole purpose of ensuring that the Client is complying with its obligations under this agreement.
13.3 In the event of either party exercising its rights under clauses 13.1 or 13.2 (as appropriate) the visiting party shall at all times comply with the host party’s reasonable safety and security rules and regulations in place from time to time. Each party agrees to reimburse the other for all damage, losses, costs, claims demands and expenses suffered by the other that are directly attributable to the acts or omissions of the visiting party (or its authorised representatives) in exercising its rights of access under this clause 13.
14. FORCE MAJEURE
14.1 Neither party shall be liable to the other for any delay or non-performance of its obligations under this agreement (except for any obligation to make payment) arising from any cause beyond its reasonable control including (without limitation) any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion, industrial action, failure in telecommunications services or unauthorised interference with either party ’s systems or services via the Internet;
14.2 The party affected by the event of force majeure shall use reasonable endeavours to mitigate the impact of any event of force majeure and to recommence performance of its obligations under this agreement as soon as is reasonably practicable.
14.3 If the affected party is unable to perform its obligations under this agreement by reason of the event of force majeure for more than four weeks, the non-defaulting party may terminate this agreement immediately by serving notice on the other to that effect in which event neither party shall be liable to the other by reason of such termination.
Any amendment, modification, variation or supplement to this agreement must be made in writing and signed by an authorised signatory of each party.
16. ASSIGNMENT AND SUB-CONTRACTING
16.1 Either party is entitled to sub-contract the performance of any of its obligations under this agreement provided that such party shall be liable for its obligations under this agreement to the same extent as if it had carried out the work itself.
16.2 The Client shall not assign, transfer or otherwise make over any part of this agreement without the prior written consent of Eurocom C.I. Ltd (such consent not to be unreasonably withheld or delayed).
If any provision of this agreement is found to be illegal or unenforceable by any court of competent jurisdiction then that provision shall be deemed to be deleted, but without affecting the remaining provisions.
Nothing in this agreement constitutes a partnership between the parties, and neither party is deemed to be the agent of the other for any purpose whatsoever. Neither party has the power or authority to bind the other or to contract in the name of the other party.
19. ENTIRE AGREEMENT
This agreement sets out the entire agreement between the parties and supersedes all oral or written agreements, representations, understandings or arrangements, relating to its subject matter. Neither party seeks to exclude liability for any fraudulent pre-contractual misrepresentation upon which the other party can be shown to have relied.
Failure by either party to exercise or enforce any rights available to that party or the giving of any forbearance, delay or indulgence is not to be construed as a waiver of that party’s rights under this agreement;
21. HEADINGS & INTERPRETATION
21.1 The headings in this agreement are for convenience only and do not affect its meaning or construction.
21.2 Any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time.
21.3 References to clauses and schedules are to the clauses and schedules to this agreement.
21.4 References to any gender includes any other gender and the singular includes the plural and vice versa.
All notices, requests, consents and authorisations made pursuant to this agreement must be in writing to its chief trading address specified in this agreement (or such other trading address as is notified to Client from time to time), and where the Client is the recipient, be sent to its registered office or chief trading address as specified in this agreement (or such other trading address as is notified to Eurocom C.I. Ltd from time to time). Notices may be sent either by first class mail or fax. Correctly addressed notices sent by first class mail are deemed to have been delivered seventy-two hours after posting. Notices sent by fax during the recipient’s business hours are deemed to have been delivered at the time set out in the transmission confirmation document and notices sent by fax outside the recipient’s business hours are deemed to have been sent on the first business hour (of the recipient) following transmission.
23. GOVERNING LAW AND JURISDICTION
23.1 The formation, existence, construction, performance, validity and all aspects whatsoever of this agreement or of any term of this agreement or of any non contractual obligation undertaken or incurred in connection with this agreement (including those arising out of pre-contractual dealings) will be governed by the laws of England.
23.2 The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in any way relate to this agreement or its formation, existence, construction, performance or validity or of any non-contractual obligation undertaken or incurred in connection with this agreement (including those arising out of pre-contractual dealings) and, for these purposes, each party irrevocably submits to the exclusive jurisdiction of the courts of England.
23.3 The rights and remedies provided in this agreement are cumulative and (except as otherwise stated) are not exclusive of any rights or remedies provided by law
24. THIRD PARTY RIGHTS
The parties confirm their intent not to confer any rights on any third parties by virtue of this agreement.
25. SET UP
The Client is responsible for set up and administration of organisational structures, user IDs and passwords.
26. NON COMPETITION
26.1 The Client and Eurocom C.I. Ltd shall not, either during the active term of this agreement or for a period of twelve (12) months following the termination of this agreement for whatever reason without the prior written consent of either party, carry on, or be engaged in, or be concerned with, or interested in, or employed by, any person engaged in or concerned with or interested in a business which is the same as, or substantially similar to, or in competition with, the either party’s business at the time of any such termination within the UK.
26.2 After expiration or termination of this agreement, the Client agrees to respect the confidentiality of Eurocom C.I.Ltd patents, trademarks and trade secrets, and not to disclose them to anyone.
26.3 The Client agrees not to set up in business or continue business as a competitor to Civil and Corporate Security with any separate database or web site that has in any way the same look, feel or flow of the database from Eurocom C.I. Ltd or copy any fields and functionality that is not included in the CRB specification document covering e-Bulk submissions.
26.4 The Client agrees to pay damages to Eurocom C.I. Ltd if any violation of this agreement is proved or admitted.