Fin-buzz terms and conditions
THIS AGREEMENT is made on the above date B E T W E E N PORTFOLIO SPECTRUM LIMITED (Company Number 5219927) of Russell Chambers, The Piazza, Covent Garden, London, WC2E 8AA (Portfolio Spectrum) and the above organisation
W H E R E A S :-
(1) Portfolio Spectrum is the owner of the Fin-buzz Media Analysis Programme
(2) The Client wishes to retain Portfolio Spectrum to carry out media analysis using the Programme.
IT IS AGREED as follows:-
1. TheTerms and Conditions following form part of this Agreement. In the case of any conflict between this preliminary part of the Agreement and the Terms, this preliminary part of the Agreement shall prevail.
2. This Agreement shall commence on the date when Portfolio Spectrum has received from the Client this Agreement signed by the Client and payment of the first instalment of the Fee payable and will continue in effect until determined as set out in the Terms.
3. The Client shall pay to Portfolio Spectrum a fee calculated as follows:
§ £1,375 per three months in respect of a three monthly subscription; and
§ £5,000 per annum in respect of an annual subscription.
These fees are on the basis of access to the Media Analysis by four operatives. An additional fee is payable in respect of access by further operatives as will be set out in a Schedule to this Agreement.
4. In the case of a three monthly and annual subscription payment is within 30 days of invoice but in any event before the commencement of Media Analysis.
5. The fees above are exclusive of VAT which shall be payable by the Client at the appropriate rate.
1. DEFINITIONS
In these Terms unless inconsistent with the context the following definitions will apply:
"Analysis" shall mean the online Analysis of market sentiment among FTSE 100 companies through the application of the Fin-buzz programme.
"Agreement "shall mean the formal contract incorporating these Terms, setting out the exact amount of the Fee and any additional terms and conditions each taking priority over these Terms where a conflict arises.
"Client" shall mean the company, firm, organisation or concern named in the body
of the Agreement and shall include all associate companies of the client.
"Fee" shall mean the subscription price of the Services payable by the Client as set out in the body of the Agreement.
"Fin-buzz Programme shall mean the Fin-buzz software tool which provides a graphic analysis in the form of a graph or pie chart.
"Intellectual Property Rights" shall meanpatents, registered designs, trademarks and service marks (whether registered or not and including applications for any of the foregoing),copyright, design right, semiconductor topography rights, trading names, rights in and to software including source codes, rights in and to technical information and other confidential information and know-how, rights in and to databases and all other intellectual property rights and similar property rights of whatever nature subsisting in any part of the world.
Portfolio Spectrum" shall mean Portfolio Spectrum Limited and its associate companies.
"Service Hours" shall mean between the hours of 08.00 and 18.00 Monday to Friday but shall exclude Public Holidays and any other time when the Stock Exchange is not open for business.
"Services" shall mean the application of the Fin-buzz Programme to produce the Analysis.
"Terms" shall mean these Terms and Conditions as varied from time to time.
2. APPLICATION
The Terms shall apply to every provision of the Services by Portfolio Spectrum. No variation of the Terms (whether in the Agreement or not) shall be valid unless in writing signed by an authorised representative of each of the Client and Portfolio Spectrum. For the avoidance of doubt the Client's own terms and conditions of Order shall not be incorporated into the Terms.
3. THE PROVISION OF SERVICES
3.1 Portfolio Spectrum will provide the Services on the Terms;
3.2 For the avoidance of doubt Portfolio Spectrum shall not be obliged to provide the Services until a formal Agreement has been agreed by both Client and Portfolio Spectrum and Portfolio Spectrum has received payment in respect of the first instalment of the Fee;
3.3 The Services shall be provided 24 hours a day and the Analysis updated during Service Hours as further particularised in paragraph 5.1.2.
3.4 The parties agree that Portfolio Spectrum may use the name of the Client for its own promotional purposes.
3.5 Portfolio Spectrum is not authorised by the Financial Services Authority to give financial advice
4. CLIENT'S RESPONSIBILITIES AND WARRANTIES
4.1 Whilst the Services are being provided the Client will:
4.1.1 use only skilled and competent operatives in consideration of the Analysis;
4.1.2 limit access to the Programme to that number of operatives permitted under the agreed Fee;
4.1.3 not carry out any unauthorised alteration adaptation or modification of the Analysis;
4.1.4 promptly pay all sums due in respect of the Services and in the case of monthly subscriptions pay the instalments by direct debit;
4.1.5 keep its passwords and user names absolutely secret;
4.1.6 immediately advise Portfolio Spectrum should it become aware that unauthorised persons are accessing the Fin-buzz Programme
4.1.7 The Client acknowledges that the Analysis is not intended nor purports to be financial advice. The Client further agrees not to use the Analysis in the buying, selling, subscribing or underwriting of securities
4.1.8 Use the Analysis entirely at its own risk
5. PORTFOLIO SPECTRUM'S RESPONSIBILITIES AND WARRANTIES
5.1 Portfolio Spectrum will:
5.1.1 use reasonably competent staff in the performance of the Services and perform these with reasonable care and skill;
5.1.2 provide the Services 24 hours as day and update the Analysis not less than four (4) times each day during the Service Hours as reasonably promptly as circumstances allow;
5.1.3 use reasonable endeavours to meet any request from the Client for the provision of Services or other services including out of the Service Hours on such terms as Portfolio Spectrum and the Client shall agree;
5.1.4 endeavour to correct any break in transmission or access to its website which is within its control as quickly as reasonably practicable;
5.1.5 in the event that the Fee (or any part of it) includes VAT to provide the Client with a VAT invoice periodically in arrears following receipt of the relevant payment.
5.2 Portfolio Spectrum WARRANTS that it will keep absolutely secret all information which it receives from the Client in confidence PROVIDED THAT this warranty will not apply to information which is in the public domain either at the time of receipt or time of disclosure nor to information which Portfolio Spectrum is under a public duty to disclose.
6. LIMITATION OF LIABILITY
6.1 Portfolio Spectrum's obligations and liabilities in respect of the Services are exhaustively defined in the Terms.
6.2 The express obligations of and warranties made by Portfolio Spectrum in paragraph 5 are in lieu of and to the exclusion of any warranty, condition, term, undertaking or representation of any kind whether express, implied, statutory or otherwise relating to anything supplied or the Services provided (in this paragraph 6 referred together as a warranty) including (without limitation) a warranty as to the condition, quality performance, merchantability or fitness for purpose of the Services or any aspect of them. In particular the Client acknowledges that the internet is a volatile media given to unexpected and often inexplicable crashes and breaks in transmission.
6.3 Subject to paragraph 6.4 Portfolio Spectrum will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused whether arising under contract, tort (including negligence) or otherwise including (without limitation) loss of production, loss of or corruption to data, loss of profits, or of contracts, loss of operation time, loss of goodwill or anticipated even if Portfolio Spectrum has been advised of their possibility.
6.4 Portfolio Spectrum shall be liable in the event of Portfolio Spectrum's negligence or that of its employees or properly appointed sub-contractors.
6.4.1 without limit for death or injury to persons;
6.4.2 in all cases not falling within 6.4.1 the lesser of £15,000 in aggregate and the aggregate fees paid by the Client to Portfolio Spectrum in the 12 months preceding the relevant claim.
7. CLIENT INDEMNITY
7.1 The Client will indemnify Portfolio Spectrum in respect of any claim including a third party claim for any injury loss damage or expense occasioned by or arising directly or indirectly from the Client's possession operation use modification or supply to a third party of any thing supplied or provided under the Services and any part of it except and insofar as Portfolio Spectrum is liable as expressly provided by the Terms.
8. PAYMENT FOR SERVICES
8.1 The Client will pay Portfolio Spectrum for the provision of the Services, the Fees and charges set out in the Agreement and any cancellation or additional Fees that might arise due to breach of the Terms by the Client.
8.2 Fees together with VAT at the prevailing rate will be paid by the Client within 30 days of invoice unless payment is by direct debit.
8.3 The Client will in addition to such Fees and charges pay interest to Portfolio Spectrum upon the amount of any invoice which is overdue from the date of invoice to the date of actual payment at 2% per annum over NatWest Bank Plc base rate for the time being.
8.4 On each anniversary of the Commencement Date the Fee payable hereunder shall be increased by the proportion by which the Retail Prices Index has increased from the Index two months before the month of the anniversary by comparison with the month 14 months before the month of the anniversary.
9. TERMINATION
Notwithstanding any other provision hereunder the parties shall be entitled to terminate this Agreement at any time upon the giving of written notice by one of them to the other in the event of any of the following:
9.1 The other party committing a material breach of any of its obligations or undertakings under these this Agreement and failing to remedy such breach (if capable of remedy) within a period of thirty days following receipt of written notice from the party giving notice so to do or within such longer period as may be mutually agreed between the parties;
9.2 The other party making a composition with its creditors or becoming insolvent or ceasing to trade or being wound up (other than for the purposes of a solvent reconstruction or amalgamation); or
9.3 one party giving to the other written notice of termination:-
(a) in the case of a monthly contract of one full calendar month;
(b) in the case of three monthly contract of three months expiring on the same day of a month that the contract commenced; and
(c) in the case of an annual contract by three calendar months' notice to expire on an anniversary of the date of commencement of the Agreement.
9.4 The Client giving Portfolio Spectrum one month's notice that it is no longer a member of the FTSE 100 group of companies.
10. CANCELLATION AND SUSPENSION OF SERVICES
Portfolio Spectrum reserves the right to suspend provision of the Services in the event that any Fee is overdue.
11. EFFECT OF SUSPENSION AND TERMINATION
Immediately following suspension or termination of the Services (whether partial or in respect of all the Services) the Client shall forthwith pay to Portfolio Spectrum all outstanding Fees and charges and the quantum merit amount due in respect of all Services for which no invoice has at the date of suspension been delivered, including any Fees and charges payable by instalments. In calculating a quantum merit charge Portfolio Spectrum shall be entitled to take into account any loss of profit suffered by them arising out of the suspension or termination as the case may be.
12. ALTERNATIVE DISPUTE RESOLUTION
If a dispute arises between Portfolio Spectrum and the Client the parties hereto agree first to use their respective best endeavours in good faith to settle the dispute by mediation before having recourse to arbitration litigation or some other dispute resolution procedure. A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of such notice the parties must within seven (7) days of receipt convene a meeting between their respective Chief Executive Officers and the other relevant members of management to attempt to resolve the dispute. If the dispute is not resolved within seven (7) days or within such further period as the parties agree then the dispute is to be referred to a mediation provider appointed by the parties and in default of agreement by the President for the time being of the Law Society.
13. FORCE MAJEURE
Neither Portfolio Spectrum nor the Client will be liable to the other for any delay in performance or failure to perform its obligations under the Terms (other than a payment obligation) due to any course outside its reasonable control. Such delay or failure will not constitute a breach of this Agreement and the time for performance of the affected obligation will be extended by such period as is reasonable.
14. NOTICES
All notices which are required to be given shall be in writing and shall be sent to the address of the recipient set out on the Order or such other address as the recipient may designate by notice given in accordance with this clause. Any such notice may be delivered personally by first class pre-paid letter or facsimile transmission and will be deemed to have been received:
14.1 by hand delivery - at the time of delivery
14.2 by first class post - 48 hours after the date of mailing
14.3 by facsimile transmission or email - immediately on transmission within the Service Hours (the hours of any Saturday Sunday or Public Holiday shall be ignored) provided a confirmatory copy is sent by first class prepaid post or by hand by the end of the next business day.
15. ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter.
16. JURISDICTION
This Agreement shall be subject to the exclusive jurisdiction of the Courts of England and Wales and shall be interpreted according to English law.
