Red Flag Alert – Terms and Conditions

This Agreement is made upon completing the Form page providing the person accepting these terms and conditions is an authorised signatory and is able to sign and enter in to the contract with Red Flag Alert.

This Agreement is Between

1. Red Flag A!ert LLP , a limited liability partnership registered and incorporated in England with company number OC305915 whose registered office is at 28 Eaton Avenue, Matrix Office Park, Buckshaw Village, Chorley, PR7 7NA (Red Flag Alert/ we/ us); and
2. The organisation identified on the Order Form (Licensee/ you)

Whereas

1. Red Flag has developed a database and search tool known as RFA from which a range of products and services are available.
2. The Licensee wishes to access and use the products available from RFA on the terms set out in this Agreement.

1. Definitions and Interpretation

1.1 In this Agreement , unless the context otherwise requires:

Affiliate means in respect of a party, a company which is a subsidiary of that party or which is a holding company of that party, or a subsidiary of such holding company, in each case for the time being, and subsidiary and holding company shall have the meaning given to them in section 1159 Companies Act 2006.

Agreement means the Order Form together with the recitals and clauses 1 to 24 below and the Disclaimer, each as amended from time to time in accordance with clause 16.

Business Day means  a day other than a Saturday, Sunday or a public holiday in England when banks in London are open for business.

Data means any information or data stored or held in, or otherwise accessible via RFA from time to time, including any information or data derived therefrom.

Data Protection Legislation: means:

a) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable  in the UK, the GDPR and any national  implementing laws,  regulations and secondary legislation, as amended or updated from time to time, in the UK; and then
b) any successor legislation to the GDPR or the Data Protection Act 2018.

The terms ‘data controller‘, ‘data processor‘, ‘personal data‘, ‘data subject ‘, ‘process‘, ‘processed ‘ and ‘processing‘ shall all have the meanings set out in the Data Protection Legislation.

Disclaimer means the disclaimer set out at the end of this Agreement.

Force Majeure Event means any circumstance or event beyond the reasonable control of the party affected by it and includes, in the case of Red Flag, industrial disputes, telecommunications failure, power supply failure, computer breakdown, failure of suppliers to meet delivery requirements and absence of personnel due to illness or injury.

Intellectual Property means any and all patents (including rights in or to inventions), trade marks, service marks, rights in designs, trade, business or domain names, goodwill associated with the foregoing, copyright including rights in computer software and databases, topography rights (in each case whether registered or not and any applications to register or rights to apply for registration of any of the foregoing), database rights, rights in know-how, trade secrets and other confidential information, and any similar or analogous rights in any jurisdiction which may now or in the future subsist in any part of the world, and Intellectual Property Rights shall be construed accordingly.

Licence Date means the licence start date as confirmed in the Order Form.

Licence Fee(s) means the fee(s) payable by the Licensee for access to and use of RFA for the purposes of delivering the RFA Products, further details of which are set out in the Order Form.

Licence Period has the meaning set out in clause 8.1, which may be varied in the Order Form.

Order Form means the order form to which these terms and conditions are attached, signed by Red Flag and the Licensee setting out details of the provision of RFA and the RFA Products by Red Flag to the Licensee.

Permitted Purpose means use of RFA (including all Data) for delivery of the RFA Products which will then be used solely for the Licensee‘s internal business purposes, but excluding always the conduct of or participation in any business  involving the resupply to third parties of the Data or information derived from the Data (or in any other way commercially exploiting the same).

Relevant Laws means any and all applicable statutes, secondary and subordinate legislation, regulations, by-laws, directives, treaties, common law, judgments, decisions of a regulatory authority, orders and permit conditions from time to time in force to which a party is subject.

RFA means Red Flag‘s online database Red Flag Alert which provides access to detailed information relating to a wide range of businesses.

RFA Helpdesk means Red Flag‘s  telephone  support function for RFA and RFA Products, which can be contacted on 0344 412 6699 (or such other telephone number as may be communicated to the Licensee in writing from time to time).

RFA Products means the Red Flag products and / or services contracted for by the Licensee under this Agreement and as confirmed in Part 3 of the Order Form.

Territory means the United Kingdom .

Third Party Processor(s) means Red Flag‘s third party processors appointed pursuant to clause 10.9, which shall be as listed at www.redflagalert.com/privacy-policy as at the date of this Agreement.

1.2 If and to the extent of any inconsistency or conflict between any of the clauses (including the recitals), the Order Form and any document otherwise attached or incorporated into this Agreement , the order of priority for the purposes of construction, is in descending order:

a) the Order Form
b) the clauses of this Agreement (including the recitals); and
c) any other document incorporated by reference into this Agreement.

2. Licence and Access to RFA

2.1 Subject always to payment of the applicable Licence Fee(s) and compliance  by the Licensee with the obligations imposed upon it by this Agreement, Red Flag hereby grants to the Licensee a royalty free (save for the applicable Licence Fee(s)), personal, non-exclusive, non- transferable licence to use RFA in the Territory for the Permitted Purpose during the Licence Period only.

2.1 Red Flag shall provide to the Licensee the number of user names and passwords set out in the Order Form, in order to access RFA. User names and passwords will be specific to the individual users to which they are issued and will be single-use log-ins which must only be used by those specific individuals to whom they are issued. The Licensee shall ensure that any user names and passwords provided by Red Flag are kept secure and confidential at all times. The Licensee must notify Red Flag immediately if it becomes aware of any compromise in the security and confidentiality of such user names and passwords, whereupon Red Flag may de­ activate the same if it considers it reasonably necessary to do so.

2.3 The Licensee shall organise its own arrangements for internet access in order to access RFA and the RFA Products. Red Flag shall not be responsible for any failure by the Licensee to access RFA or the RFA Products or any other loss or damage suffered by the Licensee which results from delays or failures in the Licensee‘s own arrangements for communications networks and facilities (including the internet).

2.4 Red Flag will use its reasonable efforts to make RFA and the RFA Products available to the Licensee at all times during the Licence Period (save for periods of required maintenance). However, Red Flag does not make any representations or warranties that the Licensee‘s use of RFA and / or the RFA Products shall be uninterrupted or error-free or that defects in RFA / RFA Products will be corrected or that RFA / the RFA Products will meet the Licensee‘s requirements for them. The Licensee acknowledges that there may be periods during which RFA / RFA Products  will not be available and that Red Flag is under no obligation to notify the Licensee in advance if it becomes aware that RFA / RFA Products  may not be available for any reason. Red Flag will use its reasonable endeavours to correct any defects in RFA / RFA Products as soon  as possible and to minimise  any period of unavailability of RFA / RFA Products but will not (to the extent permitted by applicable law) be liable to the Licensee beyond this commitment.

3. Licensee Responsibilities

3.1 The Licensee shall not:

a) use RFA, RFA Products or any Data (or any data derived from such Data) for any other purpose than the Permitted Purpose.

For the avoidance of doubt, the Licensee is not permitted to resupply, alter, amend or vary the content of any Data (or

any data derived from such Data) or use the Data or any part thereof for the purpose of directly marketing or advertising to any individuals ;

b) use RFA or the RFA Products to provide services to third parties (save where expressly agreed in writing in advance with Red Flag)

c) provide , lend to, make available or allow the use of RFA, RFA Products or any Data (or any data derived from such Data) by any third party for any purpose whatsoever except to the extent permitted by clause 3.2(a)
d) (except as permitted by applicable law) attempt to copy, duplicate , modify, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of RFA, RFA Products or any Data (or any data derived from such Data) in any form or media or by any means

e) (except as permitted by applicable law) attempt to de­ compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any software which underpins or is used by Red Flag in the provision of RFA or the RFA Products;

f) access all or any part of RFA or the RFA Products in order to build a product or service which competes with RFA or the RFA Products ; or

g) attempt to obtain, or assist others in obtaining, access to RFA, RFA Products or any Data (or any data derived from such Data), other than as provided under this clause 3.

3.2 The Licensee shall be permitted to:

a) allow its employees , agents or contractors working at its premises to use RFA / RFA Products on its behalf for the Permitted Purpose only provided that such employees, agents and/or contractors comply with the terms of this Agreement with regard to the use of RFA / RFA Products . The Licensee shall remain liable for all acts and omissions of its employees, agents and contractors (whether working at the Licensee‘s premises or otherwise) as if they were the Licensee‘s own acts or omissions; and

b) reproduce the Data solely for its own internal business purposes, provided that such reproduction is not in connection with any business involving the resupply to third parties of the Data or information derived from the Data.

3.3 Notwithstanding the specific provisions set out above, the Licensee hereby agrees to:

a) comply with any reasonable instructions or directions of Red Flag issued from time to time in respect of RFA / RFA Products and the use of the same;

b) provide its reasonable co-operation to Red Flag as and when requested to do so by Red Flag;

c) provide to Red Flag such information in respect of the Licensee‘s use of RFA / RFA Products as Red Flag may from time to time reasonably require or request;

d) provide to Red Flag access to such of its records, premises and personnel as may be reasonably necessary for Red Flag to perform its own obligations under the Agreement;

e) take out and maintain in force at all relevant times such permissions, licences, authorisations and consents (including those relating to third party intellectual property) as may

be necessary for Red Flag to perform this Agreement in accordance with its terms;

f) ensure that it only uses a secure and fully updated web browser when accessing RFA / RFA Products ;

g) only access RFA / RFA Products through an RFA approved web browser (which approved list will be notified by Red Flag to the Licensee from time to time); and

h) take all reasonable precautions in relation to the security of its own systems (including , without limitation, using up to date firewalls and other anti-virus protections) to the extent that any connections are established between the systems of Red Flag and those of the Licensee.

3.4 The Licensee may only use RFA and the RFA Products for lawful purposes. The Licensee must not use them:

a) in any way that breaches any applicable local, national or international law or regulation;

b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;

c) for the purpose of harming or attempting to harm minors in any way;

d) to send, receive, upload, download,  use or re-use any material which does not comply with our content standards (as set out on our website from time to time);

e) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or

f) to transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

3.5 When using RFA and the RFA Products, the Licensee will not access, store, distribute or transmit any material which is:

a) unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

b) facilitates illegal activity;

c) depicts sexually explicit images;

d) promotes unlawful violence

e) is discriminatory based on race, gender, colour, religious belief; sexual orientation or disability; or

f) is otherwise illegal or causes damage or injury to any person or property.

3.6 Red Flag will not be responsible for any delay in or failure to perform its obligations under the Agreement if and to the extent that such delay or failure results in whole or in part from or otherwise relates in whole or in part to a failure by the Licensee to comply with any of its obligations under this clause 3.

3.7 The Licensee hereby acknowledges and agrees that Red Flag may keep and maintain throughout the duration of this Agreement and for a period of up to six (6) years thereafter, complete and accurate records of the use that the Licensee has made of RFA / RFA Products. The Licensee further acknowledges and agrees that Red Flag (or its appointed nominee) will be entitled to access and inspect such records during the same period in order to verify the Licensee‘s compliance with the terms of this Agreement (and also to comply with any legal or regulatory obligation to which Red Flag may from time to time be subject).

3.8 Red Flag reserves the right, without liability to the Licensee or prejudice to Red Flag’s other rights, to disable access to RFA and I or the RFA Products in the event of a breach by the Licensee of the provisions of this clause 3 (or if Red Flag has reasonable grounds to suspect that a breach of this clause 3 may be occurring or about to occur).

4. Payment Terms

4.1 In consideration of the payment by the Licensee of the Licence Fee(s) to Red Flag, Red Flag shall provide access to and use of RFA for the purpose of delivering the RFA Products on the terms set out in this Agreement.

4.2 For the avoidance of doubt, the Licence Fee(s) are calculated by reference to certain usage assumptions  and limitations as set out in the Order Form. Use of RFA / RFA Products in excess of

such assumptions / limitations may attract increased or additional Licence Fees (which will be notified to the Licensee at the applicable time and, unless otherwise agreed by the parties , will be payable in accordance with the terms of the Agreement).

4.3 The Licence Fee(s) shall be payable electronically using the payment method selected on the Subscription Sign-up page and payments taken monthly at the rate agreed.

5 Disclaimer

5.1 By entering into this Agreement , the Licensee acknowledges that it has read and agrees to comply with the terms of the Disclaimer.

5.2 RFA / RFA Products are provided by Red Flag to the Licensee “as is” and, to the fullest extent permitted by law, all express or implied warranties and representations of any kind with respect to RFA / RFA Products are hereby disclaimed including, but not limited to:

a) warranties as to merchantability or use for a particular purpose, whether or not Red Flag knows or has reason to know or has been advised of any such purpose; or

b) warranties as to any results to be obtained from any use of RFA/ RFA Products or information derived from them.

5.3 Subject to clause 7.1, in no circumstances shall Red Flag have any liability for losses (whether direct or indirect, in contract, tort or otherwise) arising from any decision made or action taken by any party in reliance upon RFA / RFA Products (or any Data obtained as a result of using them), for any unavailability of RFA / RFA Products, or for any inaccuracies, errors in, or omissions from any Data obtained as a result of using RFA / RFA Products.

6 Helpdesk

6.1 In case of queries relating to the use of the RFA Products, or RFA generally, the Licensee shall be permitted to contact the RFA Helpdesk. RFA shall use its reasonable endeavours to answer calls to the RFA Helpdesk between the hours of 9am and 5pm on Business Days and shall use reasonable skill and care in providing advice and assistance via the RFA Helpdesk.

6.2 Red Flag may monitor calls to the Helpdesk for the purposes of ensuring compliance  with its legal and regulatory obligations and internal policies. These recordings may be referred to should any dispute arise between the parties.

7 Indemnity and Limitation of Liability

7.1 Nothing in this Agreement excludes or limits the liability of either party in respect of:

a) death or personal injury caused by its negligence;

b) fraudulent misrepresentation; and

c) liability which may not otherwise be limited or excluded under applicable law.

7.2 Subject to clause 7.1, Red Flag shall not be liable for any:

a) loss of profits;

b) loss or revenue;

c) loss of business ,

d) depletion of goodwill;

e) loss of or corruption of data; or

f) special, indirect or consequential losses, costs, damages, charges or expenses , even if such losses were foreseeable, and whether arising in contract, tort (including negligence), breach of statutory duty or however arising.

7.3 Subject to clauses 7.1 and 7.2, Red Flag’s total aggregate liability under or in connection with this Agreement , whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the Licence Fee for the Licence Period.

7.4 The Licensee shall indemnify, defend and hold harmless Red Flag and its respective directors, officers, agents , successors and assigns from any and all losses, liabilities, fines, damages, costs and expenses including legal fees, judgement interest and penalties arising from or in connection with any breach by the Licensee of the obligations set out in clause 3.

8 Termination

8.1 This Agreement shall come into force on the Licence Date and shall continue in force for a minimum period of 12 months (unless otherwise stated on the Order Form) and for any extension period pursuant to clause 8.2 below, subject in each case to earlier termination in accordance with this Agreement.

8.2 The Licence Period shall be extended automatically for a further period of 12 months unless the Licensee gives a minimum period  of 3 months advance written notice of termination, such notice to expire at the end of the Licence Period or an anniversary of the expiry of the Licence Period (which means that for the avoidance  of doubt in the absence of notice given by either party to terminate this Agreement, this Agreement shall renew automatically for a further period of 12 months).

8.3 Red Flag shall have the ability to terminate this Agreement automatically if:

a) an administrator , administrative receiver, receiver or manager, liquidator, provisional liquidator or similar officer is appointed in respect of the whole or any part of the Licensee‘s assets (save for the purposes of a solvent reconstruction or amalgamation), and /or a winding up petition is issued against the Licensee;

b) the Licensee proposes to enter or enters into any composition or arrangement with its creditors generally or any class of creditors.

c) the Licensee is or is deemed to be unable to pay its debts as they fall due;

d) the Licensee ceases or threatens to cease business;

e) the Licensee is subject to an event analogous to those set out above in any other jurisdiction.

8.4 Red Flag may also terminate this Agreement with immediate effect:

a) if the Licensee is in breach of clauses 2, 3 or 10 of this Agreement;

b) if, without prejudice to clause 8.4(a) above, the Licensee is in material breach of an obligation under this Agreement and, if the breach is capable of remedy, the Licensee fails to remedy the breach  within 30 days of receipt of written notice from Red Flag giving full details of the breach and requiring the Licensee to remedy the breach;

c) for convenience by providing prior written notice to the Licensee, in which case Red Flag shall refund to the Licensee any Licence Fee paid by the Licensee in respect of the period from the date of notice of termination to the expiry of the Licence Period.

8.5 On termination of this Agreement for any reason:

a) all licences granted under this Agreement shall immediately terminate (and the Licensee shall immediately cease use of RFA, the RFA Products and the Data);

b) each party shall return to the other all of that other party‘s information, data or property then in its possession or under its control (or at the other party‘s option will destroy I delete the same) and written confirmation of this having been done will be provided upon request;

c) the accrued rights of the parties as at termination shall not be affected or prejudiced;

d) clauses 1, 3, 4, 5, 7, 9, 10 and 12 shall survive not withstanding termination.

9 Intellectual Property

The Licensee acknowledges and agrees that all Intellectual Property  in and to RFA and the RFA Products and the Data shall remain at all times the property of Red Flag (or its relevant

licensors) and nothing in this Agreement shall operate to transfer or vest any such rights to the Licensee.

10 Data Protection and Relevant Laws

10.1 Each party will comply with all applicable requirements of the Data Protection Legislation.  This clause 10 is in addition to, and does not relieve, remove or replace, a party‘s obligations under the Data Protection Legislation.

10.2 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or  unlawful processing of any 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).

10.3 Neither party will do or omit to do anything which would or may cause the other party to be in breach of the Data Protection Legislation.

10.4 To the extent that the Licensee extracts any the Data (or any data derived from the Data) that contains personal data:

a) the Licensee acknowledges and agrees that it shall act as data controller, for the purposes  of the Data Protection  Legislation, in respect of its processing of that personal data;
b) without prejudice to the generality of clause 10.1, the Licensee shall only process such personal data provided that it has;

(i) legitimate grounds under the Data Protection  Legislation for the processing of the personal data; and (ii) all necessary appropriate consents and notices in place to enable the lawful processing of the personal data (including, without limitation , in order to comply with the information requirements under Article 14 of the GDPR); and

c) in the event that Red Flag becomes aware of any unauthorized extraction or use of any Data and /or the RFA by the Licensee or any third party using the Licensee‘s log-in details, Red Flag shall notify the Licensee and it  shall be the Licensee‘s duty (as data controller) to take any steps required by the Data Protection Legislation in respect of any data breach which has (or is suspected as having) occurred (including notifying the ICO and/or any data subjects, as applicable).

10.5 [The Licensee shall indemnify, defend and hold harmless RFA and its respective directors, officers, agents, successors and assigns from any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable fees) arising from or in connection with any breach by the Licensee of the obligations set out in this clause 10.]

10.6 If Red Flag processes any personal data on the Licensee‘s behalf when performing its obligations under this Agreement (Licensee Data):

a) the Licensee is the data controller and Red Flag is the data processor for the purposes of the Data Protection Legislation.

b) the processing undertaken by Red Flag shall be as follows:

i)  Scope of processing: processing of the Licensee Data in connection with this Agreement ;

ii) Nature of processing: may include collection, recording, organisation, storage, adaptation or alteration, retrieval, use, disclosure by transmission , dissemination or otherwise making available , alignment or combination, restriction , erasure or destruction of data;

iii) Purpose of processing; for the purpose of providing access to RFA, RFA Products and ancilliary services  to the Licensee. Also for the purpose of assessing the suitability of the Licensee Data and uploading the Licensee Data into the RFA;

iv) Duration of the processing: for the duration of this Agreement ;

v) Types of personal data: may include the data subject’s name, contact details, position, employer/company name , email address , usage details; and

vi) Categories of Data Subject: the Licensee’s employees, officers, agents , sub-contractors and /or clients.

10.7 Without prejudice to the generality of clause 10.1, the Licensee will ensure that it has: (i) legitimate grounds under the Data Protection Legislation; and (ii) all necessary appropriate consents  and notices in place to enable lawful transfer of the Licensee Data to Red Flag for the duration and purposes of this Agreement so that Red Flag may lawfully use, process and transfer the Licensee Data in accordance with this Agreement on the Licensee‘s behalf.

10.8 Without prejudice to the generality of clause 10.1, Red Flag shall, in relation to any Licensee Data processed in connection with the performance by Red Flag of its obligations under this Agreement:

a) process that Licensee Data only on the written instructions of the Licensee unless Red Flag is required by the laws of any member of the European Union or by the laws of the European Union applicable to Red Flag to process the Licensee Data (Applicable Laws). Where Red Flag is relying on laws of a member of the European Union or European Union law as the basis for processing the Licensee Data, Red Flag shall promptly notify the Licensee of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Red Flag from so notifying the Licensee;

b) not transfer any Licensee Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

i) the Licensee or Red Flag has provided appropriate safeguards in relation to the transfer ;

ii) the data subject has enforceable rights and effective legal remedies ;

iii) Red Flag complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Licensee Data that is transferred; and

iv) Red Flag complies with reasonable instructions notified to it in advance by the Licensee with respect to the processing of the Licensee Data;

c) assist the Licensee, at the Licensee‘s cost, 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 ;

d) notify the Licensee without undue delay on becoming aware of any data breach relating to the Licensee Data;

e) at the written direction of the Licensee, delete or return the Licensee Data and copies thereof to the Licensee on termination of this Agreement unless required by Applicable Law to store the Licensee Data; and

f) maintain complete and accurate records and information to demonstrate its compliance with this clause 10.5.

10.9 The Licensee consents to Red Flag appointing the Third Party Processors as a third-party processor of Personal Data under this Agreement. Red Flag confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 10]. As between the Licensee and Red Flag, Red Flag shall remain fully liable for all acts or omissions of any Third Party Processor appointed by it pursuant to this clause 10.9.

10.10 Red Flag shall, in processing the Licensee Data, comply with its Privacy Policy available at www.redflagalert.com/privacy-policy or such other website address as may be notified to Licensee from time to time, as such document may be amended from time to time by Red Flag in its sole discretion.

11 Force Majeure

Neither party shall be liable for any failure to perform , or delay in performing, any of its obligations (other than payment and indemnity obligations) if and to the extent that the failure or delay is caused by a Force Majeure Event and the time for performance of the obligation the performance of which is affected by the Force Majeure Event shall be extended accordingly.

12 Confidentiality

12.1 Subject to clause 12.2, each party shall, and shall use all reasonable endeavours to procure that its officers and employees shall, keep confidential all confidential information relating to the other party (and the other party ‘s business affairs) that it obtains in connection with this Agreement or the negotiations leading up to it.

Each party shall only use such information in the proper performance of its obligations under this Agreement and shall not divulge any of such information to any other person without the prior written consent of the other, unless permitted to do so by clause 12.2.

12.2 A party may disclose confidential information if and to the extent that:

a) that party is required to disclose the information by law or any competent regulatory body; or

b) the information is properly disclosed pursuant to an applicable rule, order or award in the course of proceedings before any court to which that party is a party ; or

c) the information is disclosed on a confidential basis to that party’s professional advisers for the purpose of advising that party in connection with this Agreement.

12.3 Clause 12.1 shall not apply to a party in relation to information to the extent that that party can show:

a) that the information was already, or has subsequently become, published or publicly available for use other than through a breach of this Agreement or of any confidentiality obligation owed by that party; or

b) that the information was already lawfully in its possession (without restriction on disclosure or use) before it obtained the information in connection with this Agreement or the negotiations leading up to it; or

c) that the information has subsequently lawfully been disclosed to it (without restriction on disclosure or use) by a person who is not a party to this Agreement and who itself lawfully obtained the information and is not under any obligation restricting its disclosure or use; or

d) from its records that it has derived the same information independently of that obtained by it in connection with this Agreement or the negotiations leading up to it.

13 Assignment and Subcontracting

13.1 Red Flag may assign, sub-contract, novate or otherwise transfer its rights and/or obligations under this Agreement (and/or any document entered into pursuant to or in connection with it) in whole or in part at any time and on more than one occasion to one or more of its Affiliates without the consent of the Licensee.

13.2 The Licensee shall not assign, sub-contract, novate or otherwise deal with any right or obligation arising under or in connection with this Agreement (and/or any other document entered into pursuant to or in connection with it) except with the express prior written consent of Red Flag.

14 Notices

14.1 All notices to be given to a party under this Agreement shall be in writing in English and shall be marked for the attention of the person, and delivered by hand or sent by first class pre-paid post or email to the address, detailed for the party below:

a) in the case of Red Flag, for the attention of the Managing Director at the address stated at the top of this Agreement.

b) in the case of the Licensee, for the attention of the person specified as the “Licensee Contact ” on the Order Form, at the address or email address stated on the Order Form.

14.2 Any such notice will be valid if sent by first class post or email and deemed to be received on the second Business Day after posting or transmitting.

15 Scope of Agreement

Except as expressly stated in this Agreement, all conditions, warranties , stipulations and other statements whatsoever (except as to title to goods) that would otherwise be implied or imposed by statute, at common law, by a course of dealing or otherwise howsoever are excluded to the fullest extent permitted by law.

16 Variation

We may vary these terms and conditions from time to time but will always notify you of such changes in advance of their taking effect (whether through an update to the terms posted on our website or through another form of communication with you). Once the change has taken effect, your continued use of RFA and other RFA Products will be deemed to be acceptance of the change to the terms of this Agreement.

17 Entire Agreement

17.1 This Agreement (together with all other documents  to be entered into pursuant to it) sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements and understandings between  the parties, relating to its subject matter.

17.2 Each party acknowledges that in entering into this Agreement (and any other document to be entered into pursuant to it) it does not rely on any representation , warranty , collateral contract or other assurance of any person (whether party to this Agreement or not) that is not set out in this Agreement or the documents referred to in it. Each party waives all rights and remedies which, but for this clause, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

The only remedy available to any party in respect of any representation , warranty, collateral contract or other assurance that is set out in this Agreement (or any document referred to in it) is for breach of contract under the terms of this Agreement (or the relevant document). Nothing in this Agreement shall, however, limit or exclude any liability for fraud.

18 No partnership

This Agreement does not make either party an agent or representative of the other, nor does it create a partnership or joint venture. The parties to this Agreement are independent contractors in a service supply/ purchase arrangement.

19 Publicity

Red Flag may refer to the Licensee in a representative list of clients and otherwise, but only to indicate that the Licensee is a customer of Red Flag. Except as provided in this Agreement, neither party shall use the other party’s name, the name of the other party ‘s products, or the name of the other party ‘s customers in any marketing, advertising or other publicity without the other party ‘s written consent, which shall not be unreasonably withheld.

20 The Contracts (Rights of Third Parties) Act 1999

20.1 Subject to clause 20.2 below, a person who is not party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This does not affect any right or remedy of a third party that exists or is available apart from that Act.

20.2 The terms set out in the Disclaimer shall extend to Dunn & Bradstreet Limited (registered number 160043) who may enforce the terms of the Disclaimer.

21 Rights Cumulative

The rights and remedies of the parties in connection with this Agreement are cumulative and, except as expressly state in this Agreement , are not exclusive or any may be exercised without prejudice to any other rights or remedies provided in this Agreement by law or equity or otherwise . Except as expressly stated in this Agreement (or in law or in equity) any right or remedy may be exercised wholly or partially from time to time.

22 Severability

The parties intend each provision of this Agreement to be severable and distinct from the others. If a provision of this Agreement  is held to be illegal, invalid or unenforceable, in whole or in part, the parties intend that the legality, validity and enforceability of the remainder of this Agreement shall not be affected.

23 Waiver

The failure or delay of either party to exercise any right or remedy in connection with this Agreement shall not operate as a waiver of that right or remedy, and the waiver of any breach or infringement shall not operate as a waiver of any subsequent breach or infringement. No waiver shall be effective unless it is in writing, duly signed and communicated to the other in accordance with clause 14.

24 Governing Law and Jurisdiction

24.1 This Agreement shall be governed by and construed in accordance with English law and (subject to clause 24.2 below) each party irrevocably agrees to submit to the exclusive jurisdiction of the English courts.

24.2 If any matter relating to this Agreement gives rise to a bona fide dispute between the parties , they will endeavour to resolve that dispute first by a meeting of operational managers and then (if such dispute is not resolved within 14 days of the first meeting) by a meeting of directors. If the dispute remains unresolved within 14 days of the meeting of directors, then either party may seek recourse to the courts. Nothing in this clause prevents either party from seeking injunctive or other equitable relief should it be necessary to do so to protect its legitimate interests.

Disclaimer

1. Dunn & Bradstreet Limited (D&B) is the primary source of the Data. As a condition of D&B allowing Red Flag (or any of its Affiliates) to provide the Data to the Licensee, you agree to the terms and conditions set out below.
2. Most of the Data is provided to D&B by others and as such D&B does not control the Data’s accuracy or completeness. The volume and nature of the information on D&B‘s databases makes it impractical for D&B to check it. Because of this, D&B will, subject to paragraphs 4 and 5 below, only be liable to you for any loss or damage caused by its negligence or willful default and D&B shall not in any other circumstances be liable for any inaccuracies , faults or omissions in the Data.
3. You must not rely upon any Data as the only factor or source of information in making any decision. Further advice and information from appropriate experts and professionals should be obtained before making any decision.
4. D&B shall not in any circumstances (whether for breach of contract, negligence, or any other tort, under statute or otherwise at all) be liable for any indirect or consequential loss or damage at all, or any loss of business, capital, profit, reputation or goodwill.
5. Nothing in these terms shall limit or exclude D&B‘s liability for death or personal injury arising from its negligence.
6. Subject to paragraphs 4 and 5, D&B’s entire liability in respect of all causes of action arising by reason of or in connection with these terms (whether for breach of contract, negligence or any other tort , under statute or otherwise at all) shall be limited to the amount you paid Red Flag for the Data (excluding VAT).
7.  If you want to make a claim against D&B in relation to the Data, you must give D&B written notice of the claim within 3 months of becoming aware of the circumstances giving rise to the claim or, if earlier , 3 months from the time you ought reasonably to have become aware of such circumstances. If you do not, D&B shall not be liable for the claim.

Red Flag Alert is a division of Red Flag A!ert LLP, a limited liability partnership, registered in England and Wales No: OC305915.
Registered Office: 28 Eaton Avenue , Buckshaw Village, Chorley, PR7 7NA.