PERINORM - Terms and Conditions of Sale In these Conditions, the following terms shall have the following meaning:
In these Conditions, the following terms shall have the following meaning:
Authorised Users: means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services as further set out in the Order Form.
Perinorm Package: means the Perinorm module(s) or other combination of Documents subscribed to by the Customer as further set out in the Order Form.
Conditions: means these Conditions as amended by BSI from time to time and published by BSI.
Customer: means the customer of BSI subscribing to the Perinorm Package in accordance with the Subscription Agreement and whose details are set out in the Order Form.
Documents: means the standards records and standards related documents made available to the Customer via the Perinorm Package.
Effective Date: means the date of commencement of the Services set out in the confirmatory email from BSI to the Customer following the processing of the Order Form.
Initial Subscription Term: means the term initially set out in the Order Form.
Order Form: means the BSI Order Form as attached to these Conditions or the similar document originally submitted by the Customer to enable the Services to be set up.
Perinorm Consortium: means the three National Standards Bodies – AFNOR (Association Francaise de Normalisation), BSI (British Standards Institution) and DIN (Deutches Institut für Normung e.V)
Services: means the access to the Perinorm Package provided by BSI to the Customer under the Subscription Agreement.
Subscription Agreement: means the agreement between BSI and the Customer to provide the Services as comprising of the Order Form and the Conditions.
Subscription Fees: means the subscription fees payable by the Customer to the Supplier for the Services, as set out in the completed Order Form.
User Guide: means the user guide and related documents designed to assist the Customer to use the Services.
1.1 Subject to the terms and conditions of the Subscription Agreement, BSI hereby grants to the Customer a non-exclusive, non-transferable, revocable, access and use limited right to permit the Authorised Users to use the Services and the Documents during the Initial Subscription Term as extended in accordance with these Conditions solely for the Customer's usual business operations.
1.2 The Customer acknowledges that the Subscription Agreement does not confer any ownership rights whatsoever in the Documents and Services.
2. USER RIGHTS AND RESTRICTIONS:
2.1 The Customer acknowledges that copyright subsists in Perinorm. Unless otherwise agreed in writing between BSI and the Customer, all reproduction of data, in whatever form, including their alteration, combination with, or inclusion in, other data collections, and the making available of data on networks (LANs, intranet) of the Customer are prohibited.
2.2 The exporting of all or substantial parts of the data from Perinorm, in particular with a view to loading these onto the hard disk (in the case of single workstations), or the making available of the downloaded data, whether in their entirety or substantial parts, for use on network servers (i.e. export) is contrary to the intended use of Perinorm and is prohibited unless an export licence has been expressly agreed.
2.3 Any use of Perinorm data as a source of data for external data collections or databases, or for data or information services produced from these on the Internet or in extranet applications is prohibited. Where there is an express wish on the part of the Customer to use the data for the aforementioned purposes, this is only permitted subject to conclusion of a supplementary data export licensing agreement.
2.4 The Customer warrants:
(i) to use Perinorm for searching information and use the data thus obtained for the Customer’s use only, unless other uses have been authorized by BSI in writing;
(ii) to refrain from any other use, in particular from using Perinorm on networks of any form whatsoever or using all or substantial parts of the data from Perinorm as a data source for combination with other data collections, databases or retrieval systems (export) and from any attempt to make such data available to third parties in any form whatsoever, unless expressly authorized to do so in writing by BSI;
(iii) not to transfer, duplicate, distribute, resell or disseminate without a licence on networks any data from Perinorm to or on behalf of third parties;
(iv) not to use data from Perinorm to combine with any other information with the object of offering them without a licence online, on networks or in any other form;
(v) the accuracy of all information given to BSI.
2.5 Subject to Clause 2.1 above:
2.5.1 BSI will issue the Customer a password to access the Service, which the Customer acknowledges is only for the Customer’s use and may not be shared with anyone other than the Authorised Users.
2.5.2 The Customer shall prevent any unauthorised access to, or use of, the Services and/or the Documents and, in the event of any such unauthorised access or use, promptly notify BSI.
2.5.3 The Customer is not authorized to transmit the Documents electronically or by any other means in any form to any party who is not an Authorised User.
2.5.4 The Customer may make a reasonable number of copies of the User Guide, provided all such copies include all legends, copyright and other proprietary notices that appear on the original User Guide.
2.5.5 The Customer may not copy, transfer, sell, licence, lease, give, download, decompile, reverse engineer, disseminate, publish, assign (whether directly or indirectly, by operation of law or otherwise), transmit, scan, publish on a network, or otherwise reproduce, disclose or make available to others or create derivative works from, the Service or any portion thereof, except as specifically authorized herein. The Customer must not remove any proprietary legends or markings, including copyright notices, electronically encoded information, watermarks, or any Perinorm-specific markings.
3. PRICING AND PAYMENT
3.1 The Customer must pay the Subscription Fees, which are non-refundable. The Subscription Fees are due and payable 30 days from the date of invoice.
3.2 The Subscription Fees do not include, and the Customer is solely responsible for, all applicable taxes including Value Added Tax and other sales taxes, custom charges, insurance, and/or other fees associated with the delivery of the Services, as well as all collection costs, including reasonable legal costs, incurred as a result of non-payment of fees.
3.3 BSI will provide the Customer with applicable pricing for any renewal term in writing no less than 42 days prior to the end of the Initial Subscription Term or any renewal term.
4. LIMITED WARRANTIES
4.1 Each party represents and warrants that it is fully authorized to enter into the Subscription Agreement.
4.2 Subject to clause 4.3, BSI shall provide the Services to comply with best industry practice.
4.3 The Perinorm Consortium provides the Documents on an “AS IS” basis. The Documents may be compiled from materials furnished to the Perinorm Consortium by outside sources and should be used as a reference source only. The Perinorm Consortium does not warrant the completeness or accuracy of the Documents, that the Customer's use of the Services/Documents, including without limitation, that the databases and/or software and Documents, will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy the Customer’s requirements.
4.4 The Perinorm Consortium makes no warranties, representations or agreements, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability or fitness for a particular purpose.
5. TERM AND TERMINATION
5.1 Unless sooner terminated in accordance with this section, the Subscription Agreement shall commence on the Effective Date and continue until the expiry of the Initial Subscription Term.
5.2 Subject to clause 5.7 below and so long as the Customer is not in breach of these Conditions, the Subscription Agreement will renew for successive renewal terms equal in length to the Initial Subscription Term, but in no event less than 1 year, unless the Customer provides BSI with written notice of its intent not to renew no less than 30 days prior to the end of the Initial Subscription Term or any renewal term.
5.3 If the Customer notifies BSI of its intent not to renew in writing and such request is received by BSI less than 30 days prior to the end of the Initial Subscription Term or any renewal term but before the commencement of the new renewal term, the Customer must pay to BSI within 30 days of such termination, a cancellation fee of £500 to meet BSI’s administrative costs.
5.4 BSI may terminate the Subscription Agreement or suspend the Service with 30 days prior written notice and opportunity to cure and without further liability, upon:
(i) the Customer’s failure to pay any amounts as provided herein;
(ii) the Customer’s breach of any provision of the Subscription Agreement or any law, rule or regulation governing the Documents or Services;
(iii) any insolvency, bankruptcy or assignment for the benefit of creditors, appointment of trustee or receiver or similar event with respect to the Customer; or
(iv) any governmental prohibition or required alteration of the Documents or Services.
5.5 The Customer may terminate the Subscription Agreement, with 30 days prior written notice and opportunity to cure, upon:
(i) BSI’s material breach of any provision of the Subscription Agreement or any law, rule or regulation governing the Documents or Services;
(ii) any insolvency, bankruptcy or assignment for the benefit of creditors, appointment of trustee or receiver or similar event with respect to BSI; or
(iii) any governmental prohibition or required alteration of the Documents or Services.
5.6 BSI may immediately terminate or suspend any or all of the Documents or Services without notice if:
(i) it is necessary to protect BSI’s legal liability to its third party providers;
(ii) BSI has reasonable evidence of the Customer’s fraudulent or illegal use of the Documents or Services; or
(iii) it is required by any legal or regulatory authority.
5.7 Notwithstanding any termination or suspension of the Subscription Agreement in relation to all or any of the Documents or Services, all terms and conditions of the Subscription Agreement will continue to apply to any Documents or Services not so terminated, and in particular but without limitation, the Customer shall not be relieved from any liability incurred prior to such termination or suspension, or for payment for any Documents or Services not affected by any such termination or suspension.
5.8 BSI has the right, acting reasonably, not to renew the Subscription Agreement at the end of the Initial Subscription Agreement or at the end of any renewal period, by giving the Customer at least 60 days written notice of its intent not to renew. BSI will not be liable to the Customer for any damages, indemnities, compensation, or any other payment of any kind by reason of such expiration and non-renewal of the Subscription Agreement or otherwise its termination for any reason.
6. CONSEQUENCES OF TERMINATION
6.1 Upon expiration or termination of the Subscription Agreement for any reason, the Customer will discontinue all use of the Documents and Services;
6.2 If BSI terminates the Subscription Agreement hereunder for the Customer’s breach under clauses 5.4 and 5.6 above, or if the Customer terminates the Subscription Agreement at any time after the commencement of the Initial Subscription Term or any renewal term for any reason other than BSI’s breach under clause 5.5, above, then in addition to any other remedies BSI may have hereunder, at law or in equity, the Customer must pay to BSI within 30 days of such termination, a cancellation fee equal to 75% of the Subscription Fee which the Customer acknowledges is a termination fee and not a penalty.
7. LIMITATION OF LIABILITY
7.1 Neither party shall be liable to the other in contract, tort or otherwise for any loss of profits (direct or indirect), loss of business, special, incidental or consequential damages, including without limitation lost data, and business interruption, arising out of or in connection with the use or inability to use the Services/Documents or arising out of or in connection with the Services, even if the damaged party has advised the other of the possibility of such damages. The Customer assumes the sole responsibility for its use of the Documents and the Services.
7.2 Save in respect of fraud, death or personal injury resulting from BSI’s negligence, in no event will BSI’s liability or that of its third party providers exceed the Subscription Fee paid by the Customer to BSI for the Documents or Service that gave rise to the claim.
7.3 Neither party shall be liable to the other for any failure to meet its obligations to the other where the failure is due to an event or events beyond the control of the party claiming relief (“force majeure”). Where a party claims force majeure it shall notify the other party as soon as it becomes aware of such event(s) and shall take all reasonable steps to mitigate such failure. The failure shall in any event be remedied as soon as reasonably practicable following the cessation of the event of force majeure. In the event of one party being affected by force majeure, the other party shall be entitled at is absolute discretion to suspend performance of its obligations but only until such time as the cessation of the force majeure event occurs. If the event(s) of force majeure continues for a period of three months the Subscription Agreement will thereupon terminate unless the parties shall agree otherwise and the provisions of Clauses 8 and 9 shall take effect.
8. INTELLECTUAL PROPERTY RIGHTS
The data, software, equipment, and documentation contained in the Documents and Services comprise valued proprietary and commercial information of the Perinorm Consortium and its suppliers, and are copyrighted. The Customer acknowledges that the Subscription Agreement does not confer any ownership rights whatsoever in the Documents and Services. The Customer acknowledges that all material, whether delivered on data tape, hard copy, electronically or otherwise, that are provided pursuant to the Services and all rights therein are the property of and are copyrighted by BSI or some other person or entity that owns copyright in the information used. The Customer will take any and all action that may reasonably be required by BSI to protect such rights and rights in the trademarks and service marks owned by BSI or other person or entity.
Each party will fully indemnify, defend and hold the other harmless from any claim, demands, liabilities, suits or expenses of any kind arising out of either (a) its breach of the Subscription Agreement and/or (b) any kind for personal injury or property damage to the extent is arising from its negligence or wilful misconduct.
10. ASSIGNMENT OR TRANSFER
10.1 The Subscription Agreement and the benefit of the rights granted to and the obligations undertaken by the Customer under the Subscription Agreement may not be assigned, delegated or in any other manner transferred by the Customer, by operation of law or otherwise, without:
(i) the express prior written consent of BSI, which may be withheld in BSI’s sole discretion, and
(ii) any necessary recalculation of Subscription Fees.
10.2 The Customer may not grant affiliates, subsidiaries or successors-in-interest any right to use the Documents and Services hereunder without:
(i) BSI’s express prior written consent, which may be withheld in BSI’s’ sole discretion, and
(ii) an appropriate increase in Subscription Fees.
10.3 Any attempted assignment, delegation or other transfer by the Customer otherwise than in accordance with this clause will be null and void.
10.4 BSI may transfer its rights and obligations under the Subscription Agreement to any affiliate or any successor to all or substantially all of the assets of BSI to which the Subscription Agreement relates.
11.1 The Subscription Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior agreements, promises, representations, understandings and negotiations between the parties, including terms or conditions on any other purchase order issued by the Customer. Any modifications, amendments, supplements to or waivers of the Subscription Agreement must be in writing and executed by authorized representatives of both parties.
11.2 The parties are independent contractors, and nothing herein creates or implies an agency relationship or a joint venture or partnership between the parties.
11.3 The Subscription Agreement is non-exclusive. Nothing herein prevents either party from entering into similar arrangements with other entities.
11.4 Notices required to be provided by the Subscription Agreement will be in writing and sent by post, facsimile transfer or email to the addresses on the Order Form or such other addresses notified for the purposes of this clause. A notice is deemed given when delivered.
11.5 Either party’s failure to enforce any provision or term of the Subscription Agreement shall not be construed as a future or continuing waiver of such provision or term of the Subscription Agreement.
11.6 If any provision hereunder is declared or held invalid, illegal or unenforceable, the Subscription Agreement will be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of the Subscription Agreement shall remain in full force and effect so long as the Subscription Agreement remains consistent with the parties’ original intent.
11.7 The terms and conditions of the Subscription Agreement will survive the expiration or other termination of the Subscription Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the party in whose favour they operate.
11.8 The Subscription Agreement has been written and executed in the English language. All questions of construction arising hereunder will be resolved by reference to the executed instrument in English whether or not counterparts thereof are written and/or executed in any other language.
11.9 The Subscription Agreement consists of the Order Form and the Conditions and any additional attachments or terms set forth in writing by the Parties. The order of precedence in the event of a conflict will be:
(i) any additional attachments or terms set forth in writing and agreed by the parties; and
(ii) the Order Form and the Conditions.
11.10 The Subscription Agreement is governed by and subject to English Law and to the non-exclusive adjudication of the English Courts.
Special terms and conditions for the export of data from Perinorm for individual workstations and networks
(1) The Perinorm Consortium authorizes the Licensee by virtue of this export licence to use Perinorm as a source of data for the export of data in parts or in their entirety for combination with other data collections, databases or in the licensee's own retrieval systems and, for this purpose and solely for the company's own use, to copy and store it at a single workstation or on the network system stated by the licensee and disseminate it on the specified network. The passing on without a licence of data in any form to third parties is prohibited. Copyright subsists solely with the Perinorm Consortium.
(2) In the Appendix 'Statement relating to the export of data from Perinorm, the Customer undertakes to declare the use to which he intends to put the export licence in his company, either at a single workstation or on the specified network system. This statement forms an integral part of, and is the basis of, the export licence and the fee for the use of Perinorm. By signing the Statement, the Customer confirms that his description of the actual conditions is correct.
(3) The Customer accepts, moreover, that the export and/or making available of the data copied from Perinorm onto unlicensed open Internet or extranet applications is absolutely prohibited.
(4) Any liability for breach of warranty for the data in data collections of the Customer is excluded.
By signing below, the Customer of Perinorm accepts the special terms and conditions with respect to the export licence.
Any changes envisaged during the Initial Subscription Term to the Customer’s configuration of users, sites and locations as described in section 2 of the Order Form which require use of the Services should be taken into account. If the Customer’s configuration of users, sites and locations which require use of the Services undergoes substantial change during the Initial Subscription Term, they are obliged to inform BSI accordingly so that any necessary adjustment of the conditions and Subscription Fee can be made.