overnights.tv & barb terms & conditions

Attentional Ltd – terms and conditions of business for supply of Overnight Reports

The Customer's attention is particularly drawn to the provisions of clause 5 (Indemnity for Breach of End User Licence) clause 10 (Limitation of liability).

Interpretation

The following definitions and rules of interpretation apply in these terms and conditions.

Definitions:

Agreement: the agreement between Attentional and the Customer for the supply of Overnight Reports effected by the submission of the Order by the Customer to Attentional.
Annual Licence: An annual licence from BARB held by the Customer for the use of BARB Data. Attentional: Attentional Ltd incorporated and registered in England and Wales with company number 02545260 whose registered office is at 61 Queen Square, Bristol, United Kingdom, BS1 4JZ.
BARB: the Broadcasters’ Audience Research Board.
BARB Data: data and information owned and/or supplied by BARB.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.8.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases the Services from Attentional.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to Attentional in connection with the Services.
Data: data and information provided by Attentional (either directly or from BARB).
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
End Date: a day immediately prior to any anniversary of the Start Date.
End User Licence: the End User Licence to be entered into between BARB (1) and the Customer (2) before Attentional may provide the Services to the Customer.
Force Majeure Event: has the meaning given to it in clause 13.
Intellectual Property Rights: patents,, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Internal Purposes means purposes which are internal to the Customer’s business (as declared to Attentional) and not for any other purpose or for resale or sharing with others.
Order: the Customer's signed acceptance of Attentional’s offer to supply Overnight Reports and/ or access to Overnights.tv to which these Conditions are attached.
Overnight Reports: UK television overnight reports based on BARB Data.
Overnights.tv: the online BARB ratings reports published and produced by Attentional and based on BARB Data.
Price: means the annual price for the Services shown in the Order.
Renewal Date: means the Renewal Date shown in the Order.
Start Date: means the Start Date shown in the Order.
Services: the provision of Overnight Reports and / or online access to Overnights.tv as set out in the Specification.
Specification: the attached description or specification for the Services.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1. Interpretation:
  1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
  3. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  4. A reference to writing or written includes email but not fax.

Basis of contract
1. The Order constitutes an acceptance by the Customer of Attentional’s offer to provide the Services in accordance with these Conditions.
2. These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Supply of Services
1. Attentional shall supply the Services to the Customer as from and including the later of
  1. The Start Date; and
  2. The Customer either entering into the End User Licence or satisfying Attentional that it (the Customer) has an Annual Licence sufficient to allow Attentional to supply the Services during the period of the Agreement.

Until the Agreement is terminated under the provisions of clause 12 of these Conditions.

Attentional reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Attentional shall notify the Customer in any such event.

Customer's obligations
1. The Customer shall:
  1. co-operate with Attentional in all matters relating to the Services and either
    1. use all reasonable endeavours to enter into an End User Licence as soon as possible and in any event within 2 weeks of the date on which it signs the Order; or
    2. supply Attentional within 1 week of the date on which the Customer signs the Order with a true and complete copy of the Customer’s Annual Licence which must be sufficient to allow Attentional to supply the Services during the period of this agreement;
  2. provide Attentional with such information and materials as Attentional may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
  3. appoint a manager for the Services, such person to be the ‘Customer Representative’. His or her name and contact details are to be supplied in writing to Attentional. That person shall have the authority to contractually bind the Customer on matters relating to the Services including any renewal or renewals of the Agreement.
2. Data restrictions
  1. The Customer shall it shall not be entitled to use the Services unless it has a current End User Licence. It is the responsibility of the Customer to obtain and retain that licence.
  2. If Attentional discovers that the Customer does not have a current End User Licence, it shall suspend performance of the Services until registration is effected and, in the intervening period:
    1. Attentional shall not be liable for non-performance of the Services; and
    2. the Customer shall remain liable to pay the Price due under, and in accordance with, clause 6.
  3. BARB Data provided by Attentional as part of the Services shall be used for Internal Purposes only by the Customer and not for publication, unless and to the extent that the Customer has an Annual Licence permitting it to use such data for other purposes.
3. Non-solicitation
  1. The Customer shall not, without the prior written consent of Attentional, at any time from the date of the Agreement to the expiry of 12 (twelve) months after the termination or expiry of the Agreement, solicit or entice away from Attentional or employ or attempt to employ any person who is, or has been, engaged as an employee of Attentional in the provision of the Services.
  2. Any consent given by Attentional in accordance with clause 4.3(a) shall be subject to the Customer paying to Attentional a sum equivalent to 20% (twenty per cent) of the then current annual remuneration of the employee (whilst employed by Attentional) or , if higher, 20% (twenty per cent) of the annual remuneration to be paid to the employee by the Customer.
Indemnity for breach of End User Licence
1. The Customer shall comply with the terms of the End User Licence in all respects and indemnify Attentional against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Attentional arising out of or in connection with any breach by the Customer of the terms of the End User Licence
Charges and payment
1. The annual price for the Services shall be the Price set out in the Order.
2. Attentional shall invoice the Customer for the Price on a monthly basis.
3. The Price shall be paid by 12 consecutive equal monthly instalments in advance, with the first payment being due on the Start Date.
4. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Attentional any sum due under the Agreement on the due date the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% (four per cent) a year above the Bank of England’s base rate from time to time, but at 4% (four per cent) a year for any period when that base rate is below 0% (zero per cent).
5. All sums payable to Attentional under the Agreement:
  1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
  2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Intellectual property rights
1. Attentional and/or BARB (as the case may be) shall retain ownership of all Intellectual Property Rights in the BARB Data, the Overnight Reports and Overnights.tv and their contents, excluding the Customer Materials
2. In relation to the Customer Materials, the Customer:
  1. and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
  2. grants Attentional a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer.
Data protection
1. Both parties will comply with all Applicable Laws including all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 8, Applicable Laws means (for so long as and to the extent that they apply to Attentional) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means any Data Protection Legislation and any other law that applies in the UK.
Confidentiality
1. Each party undertakes that it shall not at any time during the Agreement, and for a period of one years after expiry or termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.2.
2. Each party may disclose the other party's confidential information:
  1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 9; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Agreement.
Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
1. Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation.
2. Subject to clause 10.1, Attentional's total liability to the Customer shall not exceed the greater of £10,000 (ten thousand pounds) and 100% of the Price. Attentional's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement.
3. This clause 10.2 sets out specific heads of excluded loss:
  1. Subject to clause 10.1, the types of loss listed in clause 11.3(b) are wholly excluded by the parties.
  2. The following types of loss are wholly excluded:
    1. Loss of profits.
    2. Loss of sales or business.
    3. Loss of agreements or contracts.
    4. Loss of anticipated savings.
    5. Loss of use or corruption of software, data or information.
    6. Loss of or damage to goodwill.
    7. Indirect or consequential loss.
4. Unless the Customer notifies Attentional that it intends to make a claim in respect of an event within the notice period, Attentional shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
5. This clause 10 shall survive termination of the Agreement.
Termination
1. Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party not less than three months' written notice expiring on an End Date.
2. Without affecting any other right or remedy available to it, Attentional may terminate the Agreement with immediate effect by giving written notice to the Customer if:
  1. the Customer commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so.
  2. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
  3. the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
3. Without affecting any other right or remedy available to it, Attentional may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement within 7 days of the due date for payment;
4. Without affecting any other right or remedy available to it, Attentional may suspend the supply of Services under the Agreement or any other contract between the Customer and Attentional if the Customer fails to pay any amount due under the Agreement on the due date for payment, the Customer becomes subject to any of the events listed in clause 11.2(b) or takes any of the action referred to in clause 11.2(c) or Attentional reasonably believes that the Customer is about to become subject to any of them or take any such action.
Consequences of termination
1. On termination of the Agreement the Customer shall immediately pay to Attentional all of Attentional's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Attentional shall submit an invoice, which shall be payable by the Customer immediately on receipt.
2. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
3. Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
Force majeure

Neither party shall be in breach of the Agreement nor liable for delay in performing or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).

General
1. Assignment and other dealings
  1. Attentional may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
  2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
2. Notices.
  1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  2. Any notice shall be deemed to have been received:
    1. if delivered by hand, on signature of a delivery receipt];and
    2. if sent by pre-paid first-class post or the next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service
  3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  4. A notice given under this agreement is not valid if sent by fax or email.
3. Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
4. Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
5. No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
6. Entire agreement.
  1. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Agreement.
  3. Nothing in this clause shall limit or exclude any liability for fraud.
7. Third parties rights.
  1. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
  2. The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.
8. Variation. Except as set out in these Conditions, no variation of the Agreement shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
9. Governing law. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
10. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.Annexure B: End User Licence Dated:Between:(1) Barb Audiences Limited (registered number 3611026) whose registered office is at 114 St. Martin’s Lane, London WC2N 4BE (the Company or Barb); and(2) [Company name], incorporated and registered in [place of incorporation] with company number [company registration number] whose registered office is at [registered address] (you, the End-User).In this end-user licence agreement ("End User Licence") the following expressions have the following meanings:Barb-Related Service means any service which:(a) includes Data, or(b) is in any way based on Data,but does not include a service consisting of the resale of Data without any added value arising from the processing of the Data and/or its combination with any other data;Barb Underwriter means an entity as identified on the Central User List as may be updated from time to time;Broadcaster means a User who is also a broadcaster of Linear Services which has elected to receive the Service pursuant to a Licence under either paragraph 1.3 or paragraph 1.4 of Part A of the Rate Card;Central User List means a list compiled by Barb of the names of each person whom Barb treats as an End User or as a User pursuant to the Rate Card;Consultant means an expert engaged for a specialist project by an End User whether acting as a sole trader, on a short-term contract of employment or providing such expertise through his own limited liability entity;Data means audience measurement data (including Video-streaming Services) which is compiled into one or other of the Databases by the Data Processing Contractor(s) for the Service;Databases means the databases of the Data known as "Database 1" and "Database 2" which are maintained by the Data Processing Contractor(s) and other databases maintained from time to time by the Data Processing Contractor(s);Data Processing Contractor(s) means any such research contractors as are appointed by the Company from time to time to process and/or supply Data;Declared Business means the business or businesses carried on by the End User;FAST Channels means Free ad-supported streaming TV; IPA means the Institute of Practitioners in Advertising;Programme Sales means the promotion, marketing and sale of televisual content and/or merchandising and merchandising rights and any ancillary activities relating thereto;Rate Card means the document containing this End User Licence at Annexure B and additionally comprising the Introduction, Part A, Part B and Part C as may from time to time be varied by Barb; Video-sharing Platform Provider means a User who hosts a video-sharing platform which has elected to receive the Video-sharing Platform Services pursuant to a Licence under paragraph 1.3 or paragraph 1.4 of Part A of the Rate Card; Video-streaming Services means the services provided by either a BVOD, SVOD, AVOD or Video-sharing Platform Provider to broadcast (share) their content as notified to Barb by the services Provider; Video-streaming Services Provider means a User who provides either a BVOD, SVOD, AVOD (including FAST) or Video-sharing Platform which has elected to receive the Barb services pursuant to a Licence under either paragraph 1.3 or paragraph 1.4 of Part A of the Rate Card; andUser means any Barb Underwriter or a person who has signed, or is treated by Barb as though it had signed, a Letter of Consent with Barb as a user of the service.It is agreed that:
  1. Licence
    1. The Company hereby grants the End User a limited, non-exclusive, non-transferable, non sub-licensable, fully paid-up licence to access and use the Barb-Related Services from a holder of a Barb Licence for onward distribution from the date of execution of this End User Licence until termination of this End User Licence, subject to the terms and conditions set out herein.
    2. The Company expressly reserves any and all other rights in and to the Data other than the limited licence rights set out herein.
    3. For the avoidance of doubt, no Broadcaster or Video-streaming Services Provider who has its Services reported by Barb may be an End User. Such Broadcaster or Video-streaming Services Provider shall be required to subscribe to the terms (including payment of fees) of the licence contained in either paragraph 1.3 or 1.4 of Part A of the Rate Card. Accordingly, any End User Licence entered into in breach of this clause 1.3 shall be void and shall have no legal effect.
  2. Scope of the Licence
    1. Except as otherwise provided under this End User Licence, the End User may use the Barb-Related Services only for their own internal purposes, that is to say for purposes which are internal to the business carried on by it but shall not include: (i) any other business carried on by the End User, (ii) resale of Barb – Related Services to or sharing with third parties, (iii) for the purposes of publicising the End User's Declared Business, (iv) Programme Sales or promoting sales of the End User’s airtime and/or sponsorship opportunities (v) publishing in any form (electronic or otherwise) and (vi) other purposes which Barb may from time to time identify in guidance issued to Users and End Users generally.
    2. For PR Agencies, a maximum value of £4,000 worth of data, cumulative across the calendar Year, may be purchased and provided to their Clients to inform of the estimated audience for a programme their Client featured in.
    3. End Users accessing the Channel Planner within the IPA's TouchPoints survey and receiving no other Barb-Related Services, may use extracts of the data within external presentations.
    4. A Consultant is permitted to access an End User's Data without needing a separate End User Licence provided that the following criteria are met:
  - the Consultant typically works from the End User's offices and uses such End User's facilities like any other employee of the End User;
  - the Consultant is working with Data exclusively for one Client at a time; and
  - the Consultant does not advertise, whether on his or her website or otherwise, that it provides Barb-Related Services.
  1. A software company is permitted to access an End User’s Data without needing its own, separate End User Licence where it is building a software system that will allow the End User to analyse Data. The software company will require a Licence as outlined in paragraph 3, Part A, if it uploads Barb Data on an ongoing basis to the End User’s software system once it is built.
  2. Subject to paragraphs 2.1, 2.2 and 2.3 the End User shall treat the Barb-Related Services as confidential to the Company and shall not disclose or otherwise divulge or permit access to any part of the Barb-Related Services (whether electronically or otherwise) to any person or make any other use whatsoever of the Barb-Related Services except as provided under this End User Licence. This obligation shall not apply to any part of the Barb-Related Services which is in the public domain otherwise than as a result of a breach of this End User Licence except as permitted by this End User Licence.
  1. Barb-Related Services
    1. The End User hereby acknowledges that the Data (in whatever form) is the result of statistical sampling and survey procedures which are designed to produce estimates of television audiences within the limits of normal statistical error.
    2. The Company does not warrant the accuracy of the Data and, subject to paragraph 5, the Company accepts no liability whatsoever to the End User in relation to the Data whether in contract, tort or otherwise including (without limitation) any errors, defects or omissions in the Data, any harm caused to any computer system caused in whole or in part by the installation or uploading of the Data onto that system delays in the delivery of or access to the Data, or any breakdown or cessation of the supply of the Data from the Data Processing Contractor(s), howsoever caused.
  2. Intellectual Property Rights
  The End User acknowledges and agrees that the copyright and all similar rights in the Data used in the Barb-Related Services shall at all times remain vested in the Company provided that nothing in this paragraph 4 shall prevent the use of the Data used in the Barb-Related Services by the End User in accordance with the terms of this End User Licence.
  1. Limitation of Liability
    1. The Company does not exclude or in any way limit liability for any liability to the extent the same may not be excluded or limited as a matter of law. Without limiting the foregoing, the Company does not exclude or restrict liability for its own fraud or for death or personal injury resulting from its own negligence.
    2. The Company shall in no circumstances be liable to the End User in contract, tort or otherwise for loss (whether direct or indirect) of profits, goodwill, business (including, without limitation, advertising revenue) or anticipated savings or for any indirect or consequential loss whatsoever (including any such loss suffered by any other person in circumstances where that person is entitled to recover the same from the End User).
    3. The Company's total aggregate liability to the End User (which shall include the Company's liability to an End User arising out of damage, loss, liability or cost incurred by that End User's Clients) in contract, tort or otherwise arising under or in connection with this End User Licence for any incident or series of incidents shall be limited to the lesser of: (i) £50,000; and (ii) a reasonable proportion (having regard to the Company's liability to any other Users as a result of the incident or series of related incidents in question) of such sums as are recoverable under the Company's insurance cover for the time being following any other claims on the Company's insurance cover relating to the Company's liability to its Users. In addition, in the event that the Company receives a further sum from Data Processing Contractors in relation to the relevant incident or series of incidents, such further sum shall be reasonably apportioned between the Users having regard to the Company's liability to each Barb User and/or End User and the Company shall use reasonable endeavours to enforce the terms of its contracts with the Data Processing Contractors to recover such further sums for apportionment.
    4. Each provision of this paragraph is to be construed as a separate exclusion or limitation applying and surviving even if for any reason one or other of such provisions is held to be inapplicable or unreasonable in any circumstances and shall remain in force notwithstanding termination of this End User Licence.
  2. Indemnities
  Without limitation to any other rights of the Company under this End User Licence or otherwise, including without limitation the rights of termination under paragraph 7, the End User shall indemnify the Company up to an amount of £500,000 for any damage, loss, liability or cost incurred by the Company arising out of any use of the Barb-Related Services by the End User in breach of any limitations on the use of Barb-Related Services under this End User Licence and the Rate Card, subject to the Company using reasonable endeavours to mitigate such damage, loss, liability or cost.
  1. Termination and Expiry
    1. The Company may terminate this End User Licence immediately in writing if at any time:
  - there ceases to be any User or a User fails to pay their Fees payable under the Rate Card when due or commits or causes any material breach of its obligations under the Rate Card;
  - an End User commits or causes to be committed any material breach of its obligations under this End User Licence provided that in the case of a breach capable of remedy the End User shall first have been given written notice by the Company or a User specifying the breach complained of and requiring the same to be remedied within a reasonable period of time from notification thereof and the End User shall have failed to comply therewith; or
  - an End User becomes insolvent, makes any composition or arrangement with its creditors, or goes into liquidation whether voluntary or compulsory, or if any order is made or a resolution is passed for its winding up (other than for the purposes of a bona fide reconstruction), or if it ceases or threatens to cease trading or suffers the appointment of a receiver or administrator over the whole or part of any of its assets.
  1. On termination of this End User Licence for any reason, the End User shall immediately cease accessing or receiving any Barb-Related Services not already made available to it. The End User shall however be permitted to use Barb-Related Services already made available to it and shall continue to comply with the provisions under this End User Licence.
  1. Third Parties
    1. Except insofar as this End User Licence expressly provides, a person who is not a party to this End User Licence has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this End User Licence but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
    2. Nothing in this End User Licence or any agreement, arrangement, understanding, liability or obligation under or in connection with this End User Licence is intended to confer any benefit on a third party within the meaning of the Contracts (Rights of Third Parties) Act 1999.
  2. Compliance
    1. The End User shall maintain proper books, accounts, records, systems, processes and information in relation to its use of the Data.
    2. Any books, accounts, records, systems, processes and information to be maintained under this End-User Licence shall be subject to inspection on reasonable notice by Barb, its employees, agents or professional advisers who shall be entitled to take copies or extracts from such books, accounts, records, systems, processes and information and to such further information and action as may reasonably be required to establish or verify the End User's compliance with its obligations under this End User Licence.
    3. The End User shall cooperate with any inspection or other request carried out under paragraph 9.2.
    4. Barb, its employees, agents and professional advisers shall treat books, accounts, records, systems, processes and information and information provided in accordance with this paragraph 9 as confidential and shall not disclose or otherwise divulge the same or any information contained in such books and records to any other person. The rights and obligations of the parties under paragraphs 9.1 to 9.4 shall continue for a period of 12 months following termination of this End User Licence.
  3. Whole Agreement
  The parties acknowledge that this End User Licence is entered into pursuant to and subject to the terms of the Rate Card (which is published on the Barb website at www.barb.co.uk) and, to the extent that there is any inconsistency between the two, the parties to this Agreement agree that the terms of the Rate Card shall prevail and that this Agreement shall be amended accordingly.
  1. Law and Jurisdiction
  This End User Licence shall be governed by and construed in accordance with the laws of England and Wales and each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim, dispute or matter arising under or in connection with this End User Licence.
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