Prospect Builder - Terms & Conditions

motor retailers estate agents retail outlets

help desk FAQs

Terms & Conditions

Prospect Builder Licence Terms and Conditions

1 Definitions

"Additional Term" means a twelve (12) month period.

"Agreement" means the Order Confirmation, the terms and conditions of this document, any Data Provider Licence, and any document incorporated by specific reference.

"Annual Licence Fee" means the fee specified as such in the Order Confirmation (as increased from time to time in accordance with this Agreement).

"Authorised Number of Users" means the number of Users within your organisation specified in the Order Confirmation, which are authorised to use the Licensed Products.

"Commencement Date" means the date of commencement of your right to use the Licensed Products, as specified in the Order Confirmation as the "Effective Date".

"Data" means the information or data provided as part of or in conjunction with the Licensed Programs, which information or data is ordered by you as specified in the Order Confirmation. The information or data includes any Data Updates.

"Data Provider" means the owner of the Data or the person who has the right to licence or provide the Data for use by third parties.

"Data Provider Licence" means the specific terms and conditions issued by a Data Provider relating to the use of that Data Provider's Data, which terms and conditions we will provide to you.

"Data Update" means an update to the Data supplied to you under this Agreement and included in the Initial Licence Fee and Annual Licence Fee. "Documentation" means the user guide, operational manual and any other materials relating to the use or operation of the Licensed Programs as provided to you.

"Initial Licence Fee" means the fee specified as such in the Order Confirmation.

"Initial Licence Period" means the period specified as such in the Order Confirmation and commencing on the Commencement Date. "Licensed Products" means the Licensed Programs, the Documentation and the Data.

"Licensed Programs" means the object or executable code of the "Prospect Builder" computer programs ordered by you and as specified in the Order Confirmation, including any New Release.

"New Release" means any maintenance release relating to the Licensed Programs including error fixes, minor upgrades and patches (but not including New Versions), which we make available to you under this Agreement or otherwise and which are included in the Initial Licence Fee and Annual Licence Fee;

"New Version" means a new version (as determined by us) of the Licensed Products (or part thereof), which we make available to you under this Agreement or otherwise but which is not included in the Initial Licence Fee or Annual Licence Fee. "Order Confirmation" means the completed form entitled "Software Order Confirmation".

"Product Acceptance and Integration Protocol" means the document identified by us as the "Product Acceptance and Integration Protocol" and delivered to you.

"Special Terms" means any terms or conditions specified as such in the Order Confirmation.

"User" means a personal computer, workstation, terminal or peripheral device within your organisation, which can access either directly, or indirectly any of the Licensed Programs or any part of the Data.

"We" or "Us" or "Our" means the LVT Company specified in the Order Confirmation. "You" or "Your" means the name of the customer specified in the Order Confirmation.

Prospect Builder Licence Terms and Conditions

This Licence Agreement is an agreement between the customer referred to in the Order Confirmation, and LVT TeleMarketing specified in the Order Confirmation.

This Agreement covers the licence to you for your use of the licensed Program, Documentation and the Data we provide to you from time to time.

2 Licence

By installing and using the licensed Products, you acquire a non-exclusive licence to use the Licensed Products on the terms of this Agreement.

3 Terms

Subject to the terms of this Agreement, this Agreement:

(a) Commences on the Said Date and continues for the Initial Licence Period; and

(b) Shall be automatically extended after the Initial Licence Period for an Additional Term (and thereafter, subsequent Additional Terms) unless terminated in accordance with this Agreement.

4 Payment

4.1 In return for the licence to use the Licensed Products for the Initial Licence Period and the services we provide to you under this Agreement during the Initial Licence Period, you agree to pay to us the Initial Licence Fee in accordance with this Agreement.

4.2 In return for the licence to use the Licensed Products for an Additional Term and the services we provide to you under this Agreement during that Additional Term, you agree to pay to us the Annual Licence Fee in accordance with this Agreement.

4.3 We may increase the Annual Licence Fee in respect of an Additional Term by giving you notice in writing at least thirty (30) days prior to the commencement of that Additional Term:

(a) By an amount considered by us to be reasonable or if we reasonably determine that the existing Annual Licence Fee does not give us an appropriate return when compared to returns from other of our customers.

4.4 All fees payable under or in relation to this Agreement are exclusive of all taxes, duties and government charges. We may add any new or increased tax, duty or government charge (including a goods and services tax or value added tax but not including our corporate or personal income taxes) and will notify you of the addition to our fees. The increased fee is payable within thirty (30) days of the date of invoice.

4.5 You must pay all relevant fees to us (including any tax or duty component) within thirty (30) days of the date of our invoice to you for the relevant fee. If you fail to pay the relevant fee by the due date, we reserve the right to charge interest on any unpaid fee at our determined interest rate, which we will notify, to you.

5 Ownership

I This Agreement does not pass to you any intellectual property or other ownership rights in the Licensed Products.

6 Delivery and Risk

6.1 On or before the Commencement Date we shall deliver to you the agreed number of Licensed Products on the agreed media. Any Data Updates, New Releases and New Versions delivered to you will also be delivered on the agreed media.

6.2 Risk in the media passes to you on delivery.

7 Installations

You are responsible for installing the Licensed Programs and Data on your equipment. We will assist you with installation in accordance with clause 12 - Technical Support. You must install the Licensed Programs and Data in accordance with the Documentation and, in particular, you must carry out all procedures specified in the Product Acceptance and Integration Protocol.

8 Restrictions on Use

8:1 You agree to:

(a) Use the Licensed Products strictly in accordance with the terms and conditions of this Agreement and in accordance with the Documentation and any reasonable procedures, instructions and guidelines issued by us.

(b) Use the Licensed Products solely in conjunction with the operating system and applications (if any) and solely at the location (if any) specified in the Order Confirmation.

(c) Use the Licensed Products only for your own business purposes and solely for the purpose of obtaining and managing addresses, postcodes and other elements of the Data.

(d) Ensure that only the Authorised Number of Users use the Licensed Programs and Data and that, subject to clause 8.2, all persons who operate or access the Licensed Programs and Data are your employees (including temporary employees) only, and are made aware of all relevant terms and conditions of this Agreement. You must have a reasonable procedure in place to ensure that the number of Users who access the Licensed Programs and Data does not exceed the Authorised Number of Users. You will be responsible for the acts of all persons in relation to the access or use of your copy of the Licensed Programs and Data;

(e) Keep the Licensed Products confidential and secure;

(f) Comply with all relevant laws and regulations, including privacy and data protection laws and regulations, in your use of the Licensed Products.

We are not liable or responsible for your breach of these laws or regulations even if it occurs as a result of your use of the Licensed Products; and

(g) Take all reasonable steps to prevent the occurrence of any of the events in clause 8.2 and notify us immediately if you become aware of the happening of any of those events.

8.2 You agree not to:

(a) Without our prior written consent or save as permitted by law, copy, reproduce, translate or do any act, which infringes the copyright in the licensed Products;

(b) Create a derivative work from the Licensed Products by any means;

(d) Give, lease, licence, rent, assign, transfer, disclose, display, demonstrate, publish or otherwise make available the licensed Products (in any form) to any other person without our prior written consent;

(e) Permit any other person or company (including your related or associated companies) to use the licensed Products without our prior written consent;

(f) Use the licensed Products for the business purposes of any other person or in any service bureau arrangement (either conventionally or on the Internet) without our prior written consent. If you wish to outsource your information technology requirements and this involves a third party taking over the management of the Licensed Programs or Data, we will discuss with you the options to enable this to occur but at no time will the third party be permitted to use the licensed Programs or Data other than for your own internal business requirements;

(g) Do anything, which adversely affects or damages our interests or the interests of our related or associated companies or of any of the Data Providers, including ownership interests in the licensed Products; and

Prospect Builder Licence Terms and Conditions

9 Additional Users

If you would like to have further Users in addition to the Authorised Number of Users use the licensed Programs and Data, you must notify us, identifying the additional number of Users. We will advise you of the applicable licence fee. Upon receiving confirmation that these fees are acceptable to you, we will invoice you for the additional Users. Upon receipt by us of payment, this Agreement will be considered to be amended to reflect the additional Users and revised fees.

10 Assignment

You may not assign, transfer, encumber, mortgage or licence all or any part of this Agreement or any of your rights, benefits or obligations under it in any way without our prior written consent which consent will not be unreasonably withheld. We may assign any of our rights, benefits or obligations under this Agreement to any other person.

11 Audit

You agree, upon reasonable notice from us, to permit us to enter any of your premises and to allow and assist us to access any of your equipment at any time during your normal business hours (and irrespective of whether we have terminated this Agreement or not), in order to verify that your use and/or possession of the Licensed Products is in accordance with this Agreement. We agree to keep confidential any confidential information obtained by us in the course of such an inspection, save for the purpose of legal proceedings or obtaining legal advice.

12 Back Up or Archival Copies

You may retain the copy of the licensed Programs and Data provided to you solely for the purpose of back up and restoration.

13 Data Provider Terms and Conditions

You agree to comply with the terms and conditions of any Data Provider Licence. Data Provider Licences will form part of this Agreement and you acknowledge that we are entitled to enforce any Data Provider Licence directly against you.

14 Data Updates, New Releases and New Versions

14.1 We warrant that we will issue you with Data Updates as soon as possible after receiving them from the relevant Data Provider. If any particular Data Provider alters the interval for delivery of Data Updates, we will offer a matching alteration to the provision by us to you of the relevant Data Update. We may charge a reasonable additional fee to the Initial licence Fee or Annual licence Fee which reflects the more frequent provision of the relevant Data Update, provided that you are not obliged to accept a more frequent provision of Data Updates when compared to that prevailing at the Commencement Date.

14.2 We will issue you with New Releases from time to time in accordance with our policy on New Releases as may exist from time to time. Any such New Releases shall form part of the Licensed Programs for the purposes of this Agreement and are subject to the terms and conditions of this Agreement as if they formed part of the original Licensed Programs.

14.3 You must install Data Updates and New Releases issued to you promptly on receipt.

14.4 (a) New Versions are not included in the Initial licence Fee or Annual licence Fee.

(b) We will advise you of the availability of New Versions from time to time and of the fees and any other conditions in respect of such New Versions. You are not obliged to take New Versions, however we reserve the right to discontinue the provision of Data Updates to you by at least three (3) months notice in writing if the following conditions are met:

(i) Either more than two New Versions have superseded your version of the licensed Programs, or, the media upon which your Data Updates is supplied is obsolete and you are unable to accept an alternative media; and (ii) a technically feasible upgrade path to our most recent New Version is available from us.

14.5 Unless otherwise agreed, this Agreement applies to New Versions, which shall be subject to the terms and conditions of this Agreement as if they were the original licensed Programs.

15 Governing Law

This Agreement is governed by and to be construed in accordance with the laws of the Country where we are registered or ordinarily conduct business with you (as we may choose). Any disputes concerning this Agreement are to be resolved by the Courts or other tribunals or processes in that Country.

16 Interpretation

(a) This Agreement contains the entire understanding between the parties as to the licence of the Licensed Products.

(b) Every provision of this Agreement is severable from the others and the severance of a provision will not affect any other provision.

(d) A reference to the singular includes the plural and vice versa. A reference to one gender includes a reference to the other genders.

17 Liability

17.1 You acknowledge that in entering into this Agreement you have not relied in any way on our representations, descriptions, illustrations, specifications, skill or judgment except as expressly specified in this Agreement and that you have satisfied yourself as to the condition and suitability of the Licensed Products for your purposes. You acknowledge that the Licensed Products have not been developed to meet your particular requirements.

17.2 You acknowledge and agree that, except as specifically provided in this Agreement, we are not liable for any loss or damage, including consequential loss or damage, which in any way results from our negligence your use or non-use of the Licensed Products (including as a result of any malfunction, breakdown, error or virus in the Licensed Products) or as a result of or in connection with the provision or non-provision of services under this Agreement or as a result of any breach of any clause or provision of this Agreement, EXCEPT THAT where we have not been able to remedy a breach of the warranties in clause 25.1 after being given a reasonable opportunity to do so by you, we will be liable to you for any direct losses that you are able to prove to us that you have incurred directly as a result of a breach by us of any of the warranties in clause 25.1 subject to the cap on our liability under this clause as specified in the Country Specific Terms and Conditions.

17.3 You will indemnify us and keep us indemnified against:

(a) All and any demands, claims, actions and proceedings whatsoever and howsoever arising made by any third person in connection with or arising out of:

(i) Your use of the Licensed Programs in combination with other programs or items, or any modification you make to the Licensed Programs, constituting an infringement of that person's intellectual property rights;

(ii) Any alleged mis-use by you of the Data;

(iii) Your continued use of the Licensed Programs in circumstances where you have been requested by us not to use the Licensed Programs, due to an intellectual property infringement claim against us and you have been provided with a suitable alternative under clause 25.4(e) and

(b) All and any losses, costs, expenses and damages whatsoever and howsoever incurred by us in connection with or arising out of a breach by you of any of clauses 7 (restrictions on use), 9 (additional users), 10 (transfer) or 18 (data provider terms and conditions).

17.4 We will indemnify you against any losses you incur as a result of your use of the Licensed Programs or Documentation being found to have infringed the intellectual property rights of a third party provided that:

(a) You must advise us immediately you become aware of any claim against you that such use infringes the third party's intellectual property rights;

(b) you give us immediate and complete control of such claim;

(d) the claim does not arise as a result of your use of the Licensed Programs or Documentation in conjunction with other programs or items we have not approved; and

(e) You allow us to replace or modify the Licensed Programs and Documentation so as to remove such infringement where possible provided that the replacement or modification offers equivalent functionality.

This indemnity shall not apply to the Data. The above indemnity states our entire liability in respect of the infringement of the intellectual property rights of any third party.

18 Notices

Any notice to be given under this Agreement is to be delivered by ordinary post, hand delivery, facsimile (such facsimile to be confirmed by letter posted within twelve (12) hours of the facsimile being sent) or electronic transmission (email) to the address of the other party as set out in the Order Confirmation (or such other address as may be notified). Such notice shall be deemed to have been given or served upon the expiration of twenty-four (24) hours after posting by ordinary post, at the time of delivery if by hand delivery, upon the expiration of twelve (12) hours if by facsimile and when the sender's computer system produces a "delivery confirmation report" or similar notice which provides for confirmation of the delivery of the email to the recipient, in the case of email. if a notice is received by a party after 5pm (that party's time) or on a day when that party is not ordinarily open for business, the notice shall be deemed to have been given at 9am on the next day when that party is ordinarily open for business.

19 Obligations

We may perform our obligations under this Agreement through third parties who will perform those obligations on our behalf.

20 Special Terms

You agree to comply with any Special Terms. The Special Terms (if any) will form part of this Agreement.

21 Technical Support

22.1 We will provide you with support services relating to the licensed Products in accordance with our support service policy as may exist from time to time.

22.2 Charges for any services not included within this Agreement will be invoiced to you, payable within thirty (30) days of the date of invoice. These charges will be at our rates as may exist from time to time and which we will notify to you prior to the provision of the services.

22.3 We are not obliged to provide you with support services relating to versions of the Licensed Products which have been superseded by more than two New Versions provided that:

22 Termination

22.1 We may immediately terminate this Agreement (or part of it in respect of a particular Licensed Product) by notice in writing to you if:

(a) You breach any material term or condition of this Agreement which is capable of remedy and fail to remedy that breach within thirty (30) days of being notified of the breach in writing;

(b) You breach any material term or condition of this Agreement which is incapable of remedy;

(c) you fail to pay any fee payable under this Agreement within thirty (30) days of the due date; (d) our right to distribute any of the Data is terminated for any reason or expires;

(e) We decide, for any reason, not to continue distributing any of the Data and give you at least three (3) months notice in writing of such discontinuance; or

(f) You become bankrupt or subject to any form of insolvency administration including, if you are a company, the appointment of a receiver, liquidator or agent in possession or the passing of a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction).

22.2 You may terminate this Agreement (or part of it in relation to a particular Licensed Product) effective at the expiry of the Initial Licence Period or an Additional Term by giving us written notice of termination at least thirty (30) days prior to the expiry of the Initial Licence Period or the relevant Additional Term.

22.3 If this Agreement (or part of it in relation to a particular Licensed Product) is terminated, you must immediately stop using the relevant Licensed Products, permanently erase the Licensed Programs, Data and, all related files from your computer and, at your cost, immediately return all copies of the Licensed Products to us and certify to us that you have complied fully with this clause. If only part of this Agreement is terminated, this clause applies to the Licensed Products relevant to such termination.

22.4 If this Agreement (or part of it) is terminated by us because our right to distribute the Data is terminated or expires or because we decide, for any reason, not to continue distributing the Data, we will refund to you the proportionate amount of the relevant Licence Fees you have paid to us to use the relevant Data referable to the balance of the relevant period.

22.5 Termination of this Agreement (or part thereof) is without prejudice to any rights, which may have accrued prior to termination.

23 Transfer

If you wish to use the licensed Programs and Data on equipment, at a location or in conjunction with applications or an operating system different from those specified in the Order Confirmation, you must notify us, identifying the alternate equipment, location, application or operating system. We will respond by advising you of whether such different use is possible and, if so, the fees and other conditions associated with such different use. Upon receiving confirmation that these fees and conditions are acceptable to you, we will send you an Order Confirmation and invoice you for the applicable I fees. Upon receipt by us of payment, this Agreement will be considered to be amended.

24 Waivers

Failure or neglect by either party to enforce at any time any of the provisions of this Agreement is not to be construed or deemed to be a waiver of that party's rights under this Agreement.

25 Warranties

25.1 Subject to the terms and conditions of this Agreement, we warrant that:

(a) The Licensed Programs will, at the date of delivery, substantially conform to the description specified in the Documentation provided that the Licensed Programs are properly used in accordance with the Documentation and on the appropriate operating system;

(b) To the best of our knowledge, we have tested the Licensed Programs in accordance with current computer industry best practice for viruses, and that the Licensed Programs, at the time of delivery, do not contain any viruses (or other similar contaminants) that may cause damage to or erase the Licensed Programs or the Data;

(d) The Licensed Programs do not infringe the copyright of any person and, to the best of our knowledge, do not infringe any other intellectual property rights of any person;

(e) Any services we provide to you under this Agreement will be performed with reasonable skill and care;

(f) The Licensed Programs are "Year 2000 Compliant", provided that we will not be responsible for a breach of this warranty or for any problems or errors in the use of the Licensed Programs caused by:

(i) the Data; or (ii) Any equipment, software, data or other items used in conjunction with the Licensed Programs, not themselves being "Year 2000 Compliant". For the purposes of this clause "Year 2000 Compliant" means that neither functionality nor performance is affected by dates prior to, during and after the year 2000. In particular: -

Rule 1: No values for current dates will cause any interruption in operation.

Rule 2: Date based functionality must behave consistently for dates prior to, during and after the year 2000.

Rule 3: In all interfaces and data storage, the century in any date must be specified either explicitly or by unambiguous algorithms or inferencing rules.

Rule 4: Year 2000 must be recognised as a leap year.

25.2 Except as this Agreement expressly provides otherwise, we give no condition, warranty, undertaking or representation in relation to the condition, accuracy, suitability, quality of or title to the Licensed Products (in particular, the Data and any reports or items generated or produced by or with the aid of it), and all implied conditions, warranties and liabilities (including liability as to negligence) are negated and excluded to the fullest extent permitted by law.

25.3 We give no condition, warranty or undertaking as to the benefits, which may accrue, including profitability, revenue or pricing benefits, from your use of the Licensed Products.

25.4 The warranties in this Agreement are conditional upon:

(a) You complying with your obligations under this Agreement;

(b) No alterations being made to the Licensed Products by any person other than us; and

25.5 If you notify us of a breach of the warranties referred to in clause 13.1, which breach we are able to verify, you will give us a reasonable opportunity to remedy the breach, in which case we will use our reasonable endeavours to remedy the breach at no cost to you although we do not guarantee to you that we can remedy the breach. When notifying us of a breach of any warranties, you must, if reasonably required by us, provide us with a documented example of such breach. This clause and clause 14 represent the total liability we have to you for breach of the warranties in clause 13.1.