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BIP DELTA TERMS & CONDITIONS v1.0

1. GRANT OF LICENCE

a) Subject to the following terms and conditions, BiP hereby grants to the Licensee a non-exclusive, non-transferable licence to Use the Service commencing on the date that a signed subscription application for a Licence is received by BiP for a minimum period of one year after the date that the Licensee’s subscription application is received by BiP and thereafter for successive one year periods unless and until terminated in accordance with the terms of this Licence. For the purposes of this Licence, “Use” shall mean to use the Service by copying; transmitting, accessing or loading the same into the temporary memory of Licensee’s computer hardware and printing or copying any information or data accessed using the Service as required by Licensee.

  b) The Service to which this Licence relates may be used solely for internal business use only by a person named and nominated by Licensee specified in the Delta Suite registration form or as otherwise notified by Licensee to BiP from time to time (“End Users”) and in compliance with these terms the information entered by the end user may be printed out or copied for personal or internal corporate use only. The Service may only be used by up to the maximum number of End Users specified in the Delta Suite registration form or as otherwise agreed in writing between the parties from time to time.

c) Licensee shall not be entitled to use, re-use, distribute or make available information or data accessed or copied using the Service to any third parties other than End Users.

d) Licensee’s rights to Use the Service shall be limited to those specified in this Licence. Any other use of the Service is not permitted.

e) Neither the Service nor information therein will be corrupted, changed, altered, amended or varied or damaged, destroyed, deleted, or decimated or otherwise modified to create other products or services or derivative works by or on behalf of the Licensee. Licensee shall ensure that no viruses, worms, Trojan horses or other code, scripts or instructions which will or are designed to delete, damage or modify program or data files are transferred by Licensee to the computer systems of BiP or any other customers of BiP using the Service.

f) Neither the Licensee nor any End User may vary, modify, adapt, translate, reverse engineer, decompile or disassemble the Service (or any part of the same) except as permitted by applicable law. Neither Licensee nor any End Users shall be permitted to copy the Service, in whole or in part, except to the extent permitted in terms of this Licence or by applicable law.

g) The Licensee shall not store or save any information or data in or using the Service that is not directly pertinent to the tendering process of the Licensee.

h) Licensee shall not, whether for a fee or free of charge, use, re-use, transfer, share, link to or frame, distribute or make available information or data accessed or copied using the Service to any third parties other than End Users and shall not Use the Service in any manner to provide computer or consultancy or computer bureaux services to any third parties or otherwise to rent, lease, loan, resell for profit, redistribute, sub-lease, sub-licence or create works based upon the Service or any part of the same.

i) Licensee acknowledges that the copyright and any other intellectual property rights (including without limitation rights in relation to inventions, patents, utility models, designs rights and registered designs, database rights, and trade marks (unregistered and registered)) in and to the information and data, databases, images, content, style, “look and feel” and function of the Service, in whole or in part, is and shall remain at all times owned exclusively by BiP and its licensors, which includes the European Commission. All rights not expressly granted herein are reserved by BiP and its licensors. Licensee shall not, and shall ensure that its End Users shall not, delete or in any manner alter any copyright, trade mark and other proprietary rights notices of BiP or its licensors which appear on the Service or accompany materials and the Licensee shall ensure that such notices are reproduced on all copies (in any form, electronic or otherwise) made by Licensee or any End Users of the Service (or any part of the same) or information or data accessed using the Service.

j) The Licensee grants an irrevocable royalty-free unrestricted licence to use, copy, modify, amend, update, re-use, publish, disseminate and distribute any and all information and data entered into the Service by the Licensee at any time during the term of this Licence where such information is made available to the public or meant for publication or already in the public domain.

k) The Licensee shall:

(i) at its cost and expense, procure and use in connection with the Service all hardware, equipment, telephone installation, terminal, consumable or other equipment required to access and use the Service as notified by BiP to the Licensee from time to time;

(ii) ensure that the hardware, equipment, telephone installation, terminal, consumable or other equipment used by the Licensee to access and use the Service meets the minimum standards and specifications notified by BiP to the Licensee from time to time;

(iii) comply with such application specific requirements as may be notified by BiP to the Licensee prior to the commencement of this Licence in relation to the relevant part or parts of the Service to be provided to the Licensee;

(iv) if using PrOJECt online to transmit OJEC notices to Eur-Op as part of the Service, not transmit any OJEC notices by any other means to Eur-Op for publication in the OJEC;

(v) be liable for all costs relating to the connection and data transmission from the Licensee’s computer systems to the Service together with any sum, fee, subscription, tax or other charge which may be required by access providers to the relevant telecommunications networks connecting the Licensee’s computer systems to the Service;

(vi) keep any and all passwords and other unique identification data or security procedures issued to the Licensee by BiP from time to time secret and secure (including without limitation ensuring that the same are not stored on its computer systems in plain text) and shall not disclose the same or make the same available to any third party (other than authorised persons notified to BiP) or to the public; and

(vii) notify BiP immediately on becoming aware of that any passwords or other unique identification data or security procedures issued to the Licensee by BiP are disclosed or become known by any unauthorised person.

2. LIMITED WARRANTY AND UNDERTAKING

BiP warrants to Licensee that for the term of this Licence:

a) the Service will perform with normal use substantially in accordance with the accompanying material;

b) BiP will use reasonable skill and care in making the Service available to Licensee;

c) the use of the Service by Licensee in accordance with the terms of this Licence will not infringe the copyright or database rights of any third party;

d) BiP will use its reasonable endeavours to ensure that all information and data made available to Licensee using the Service will be [accurate and up-to-date]; and

e) BiP will use its reasonable endeavours to ensure that the Service and the information and data made available using the Service will be available for access from BiP’s server via the Internet in accordance with the accompanying material [24 hours each day Monday to Friday (excluding bank holidays in England) excluding routine and scheduled maintenance]; and

f) BiP will take all reasonable steps to prevent any unauthorised access to all and any commercially sensitive data stored or input by Licensee and its End Users using the Service (except to the extent that any unauthorised access is obtained as a result of the act, omission or negligence of the Licensee or any such End User).

This warranty shall not apply if and to the extent that any breach of warranty has resulted directly or indirectly from (i) any unauthorised use or modifications to the Service or any information or data accessed using the Service; (ii) use of the Service otherwise than in accordance with the terms of this Licence and the accompanying material. 

BiP shall use its reasonable endeavours to issue to the Licensee new passwords and other unique identification data or security procedures within one day (Monday to Friday (excluding bank holidays in England)) of receipt of notification from the Licensee under Clause 1 k) (v).

3. NO OTHER WARRANTIES

BiP and its licensors disclaim all other warranties, representations, guarantees and conditions, express or implied, and implied terms, in each case whether implied by statute, common law or trade usage or otherwise and whether written or oral, which are hereby expressly excluded to the fullest extent permitted by law.  For the avoidance of doubt, neither BiP [nor its licensors] warrant the quality or accuracy of any information provided in the Service or warrant the quality or accuracy of any information or documentation resulting from or transmitted using the Service except to the extent warranted in Clause 3.  No warranty is given by BiP or any other party or person that the functions contained in the Service will meet Licensee’s requirements or that the operation of the Service will be uninterrupted or error free.  Licensee acknowledges that it is responsible for the selection of the Service to achieve its intended results for the use and results obtained from it and for establishing a telecommunications link and/or an Internet connection in order to access the Service from time to time.

4. TERMINATION

a) Licensee is entitled to terminate this Licence (a) at any time by notice in writing to BiP to be effective as from the end of the licence year in which its written notice to cancel is received by BiP. b) if BiP notifies the Licensee that it intends to supplement, amend, vary or modify the Licence or any part of the same in accordance with Clause 7 e).

b) BiP shall be entitled, at its entire discretion, without cause and without any liability to Licensee in respect of the same, to terminate this Licence on giving at least sixty (60) days notice of termination in writing to the Licensee. After such termination, BiP shall refund to the Licensee that pro-rata portion of that licence year’s Licence Fee that relates to the period (if any) between the effective date of termination or expiry and the end of that licence year.

c) BiP shall be entitled, at its entire discretion and without any liability to Licensee in respect of the same, to terminate this Licence or to suspend the provision or availability of the Service forthwith [without further notice to Licensee] if the Licensee or any person nominated by Licensee in terms of this Licence fails to comply with any of the terms stated herein or if an encumbrance takes possession or a receiver or a judicial factor is appointed over any of the property or assets of the Licensee or the Licensee becomes insolvent or apparently insolvent or makes any voluntary arrangement with its creditors generally, or becomes subject to an administration order or the Licensee goes into liquidation (except for the purposes of solvent amalgamation or reconstruction) or anything analogous to any of the foregoing under the laws of any jurisdiction outside Scotland occurs in relation to the Licensee. In such circumstances the Licensee may be subject to legal action for compensation regarding any infringement of the terms of this Licence or breach of copyright in respect of the Service.  

d) On the termination or expiry of this Licence, the Licensee shall cease, and shall ensure that all End Users cease, all Use of the Service and BiP will retrieve, transmit or otherwise provide the Licensee with a copy of all data entered into the Service by the Licensee during the licence year prior to the effective date of termination or expiry, if so requested in writing within sixty days of the effective date of termination or expiry of this Licence by the Licensee. Licensee acknowledges that BiP shall, at BiP’s entire discretion, be entitled to charge an additional fee in respect of the retrieval and transmission or provision of such data, such fee as may be notified by BiP to Licensee from time to time, and further acknowledges that BiP shall not be liable to provide such data after such period unless requested to do so within such sixty day period.

e) Any termination or expiry of this Licence shall not affect the accrued rights and obligations of the parties at the effective date of termination or expiry of this Licence.

5. LIABILITY

a) If a valid claim is made by Licensee to BiP within the terms of the warranty at Clause 2, BiP shall use its best endeavours to repair, upgrade or replace the Service as soon as reasonably practicable without any further liability to Licensee provided always that written notice of such claim is received by BiP within thirty (30) days of the date on which the Licensee becomes aware of circumstances giving rise to such claim.

b) Neither BiP nor its licensors shall be liable to Licensee or any third party for any unavailability, delays, inaccuracies, errors or omissions howsoever occasioned or for any non-performance or failure in or defective or delayed performance of the Service except to the extent that the same arises directly from the negligence of BiP or its licensors. Without prejudice to the foregoing generality, neither BiP nor its licensors shall be liable to Licensee or any third party for any unavailability, delays, inaccuracies, errors or omissions howsoever occasioned or for any non-performance or failure in or defective or delayed performance of the Service caused by any failure by the Licensee to comply with any of its obligations under Clause 2 k) or caused by any information or data supplied to BiP by any third party.

c) Neither BiP nor its licensors shall be liable for any indirect, special or consequential loss, or loss of profits, loss of revenue, loss of business, business stoppage or interruption, computer failure or malfunction, loss of use, contracts, data, management time, anticipated savings or profits, goodwill, reputation or for any economic or financial loss whatsoever and howsoever suffered, whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations under this Licence, even if BiP has been advised of the possibility of such damages.

d) Neither BiP nor its licensors shall be liable to the Licensee for any total or partial failure, interruption or delay in performance of BiP’s obligations under this Licence resulting from any cause arising from or attributable to acts, events or omissions beyond the reasonable control of BiP, including but not limited to act of governmental departments, Act of God, flood, fire, explosion or earthquake, strikes, lock-outs, or industrial disputes, telecommunications or Internet connection faults or failures, or failures of third party information suppliers.

e) Subject to Clauses 5 a), b), c), d) and g), the maximum total aggregate liability of BiP or its licensors under, arising from or in connection with this Licence or the Use of the Service, whether arising in contract, delict (including negligence), quasi-delict or otherwise, shall not exceed £5,000 or ten times the value of the Licence Fee, whichever is the lower.

f) The Licensee shall be liable to BiP [and its licensors] for any reasonable costs of any Content, information or data entered or instructions received by BiP (whether or not from the Licensee) or otherwise or for any loss of any Content, information or data or profits suffered or incurred by BiP [or its licensors] as a result of any breach by the Licensee of Clause 1 k) (vi) until the Licensee shall have notified BiP of the same in accordance with Clause 2 k) (vii)

g) Notwithstanding the foregoing, nothing in this Licence shall be deemed to exclude, restrict or limit BiP’s or its licensors’ liability for death or personal injuryresulting from its or their negligence or any liability for fraudulent misrepresentation or any other liability which may not lawfully be limited or excluded under applicable law.

6. GENERAL

a) Licensee shall keep and shall procure that all of its employees or agents or representatives shall keep secret and confidential both during and after the term of this Licence all information relating in any way to the business affairs, software, computer systems, suppliers, customers, accounts, finances or business methods of BiP or technical information relating to the Service coming into its possession during the period of this Licence and in contemplation of it provided that such information is not (i) in the public domain through no act or default of the Licensee or its officers, employees or agents, (ii) known to the Licensee prior to its receipt and at its free disposal, (iii) received from a third party who owes an obligation of confidence in respect of that information, or (iv) is not information which the Licensee is required by law to disclose to any court or other relevant authority. Licensee shall itself and shall procure that all of its employees or agents or representatives use such information only for the purposes of this Licence and for no other purpose whatsoever, and in particular shall not use such information to develop other services which may compete with the services being provided under this Licence.

b) The rights and obligations of the Licensee under this Licence may not be transferred or assigned by the Licensee to any third party without the prior written consent of BiP.

c) This Licence contains the whole agreement between the parties in respect of the subject matter of this Licence and supersedes and replaces any prior written or oral agreements, representations or understandings between the parties relating to the subject matter. The parties confirm that they have not entered into this Licence on the basis of any representation that is not expressly incorporated into this Licence.

d) Nothing contained in this Licence shall be deemed to constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Licence and neither party shall have, nor represent that it has, any authority to make any commitments on behalf of the other party.

e) Subject to the following provisions of this Clause 6 e), this Licence may not be released, discharged, supplemented, amended, varied or modified in any manner except by agreement in writing of the parties. BiP shall be entitled to supplement, amend, vary or modify the Licence or any part of the same at any time by giving notice to the Licensee (which may be validly served in electronic form by displaying the same to the Licensee when the Licensee or any End User uses the Service or accesses the home page of the Service), any such supplement, amendment, variation or modification being effective fifteen (15) days after such notice.

f) Failure by either party to exercise any right or remedy under this Licence shall not be construed as a bar to or as a waiver of such right or remedy in respect of any future event.

g) If any provision of this Licence, not being of a fundamental nature, is held to be illegal, void or unenforceable, it shall be severed and the validity or enforceability of the remainder of this Licence shall not be affected.

h) All notices under this Licence shall, unless otherwise indicated, be validly served if sent by first class certified, registered or recorded delivery post or facsimile transmission to the address or facsimile number of the other party as notified from time to time by the other party to the party serving notice, being as at the date of this Licence in the case of BiP the address and facsimile number specified below and being in the case of Licensee the address and facsimile number specified on the Delta Suite registration form. Notices shall be deemed to have been served if sent by post within 48 hours of sending or if sent by facsimile transmission on receipt of a successful transmission report provided that a copy of such notice is confirmed by first class certified, registered or recorded delivery post sent the same day.

i) In processing any personal data of Licensee or End Users as part of the Service, the parties acknowledge that BiP is processing such personal data as data processor and shall only process such personal data in accordance with the instructions of Licensee and shall take appropriate technical and organisational measures in respect of against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to such personal data.

7. LAW AND JURISDICTION

These Terms and Conditions shall be governed by and construed in accordance with the laws of Scotland and any disputes shall be subject to the jurisdiction of the courts of Scotland, unless otherwise submitted by BIP Solutions Ltd

Should you have any questions concerning this Licence, or if you desire to contact BiP for any reason, please contact: BiP Solutions Limited, BiP Solutions Ltd, Medius, 60 Pacific Quay, Glasgow, G51 1DZ Telephone:0845 270 70 50 , Fax: 0141 331 2652/2792, email: helpdesk@delta-ets.com

• DELTA Terms & Conditions v3 .0 – 26 th May 2004
• © BiP Solutions Limited 2004

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