TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS
All orders for the sale of Products are subject to the following terms and conditions:
1. DEFINITIONS
“Authorized User(s)” means full- or part-time employees of Client and those Client contractors who are required to access a Product solely for the purpose of assisting Client’s use of the Product for its internal business purposes only. Client will be fully liable and responsible for the acts and omissions of its Authorized Users.
“Client” means the person, firm or company or any other entity that purchases the Products from IHS.
“Delivery Point” where applicable, means the location as defined in the Order Confirmation where delivery of the Products is deemed to take place.
“Directory Products” means IHS’s proprietary database or any part thereof, including without limitation, details of particular company/organisation, key personnel, financial/statistical information, products/services description, organisational structure and any other information pertaining to the company(s)/organisation(s) operating in various industrial sectors.
“Fees” means the money due and owing to IHS for Products supplied, including any order processing charge, as set forth in the Order Confirmation. Fees are exclusive of taxes, which will be charged separately to the Client.
“Products” means any publication, database, supplied to the Client in physical or electronic media, more specifically mentioned in the Order Confirmation. Products include Directory Products.
“Order Confirmation” includes the order form or confirmation email or any other document which IHS sends to the Client to confirm that IHS has accepted the Client’s order and which identifies the name of the Client, Product(s) being supplied, period of supply, delivery information, media of supply, Fees and any terms or conditions unique to the particular Product to be supplied hereunder.
2. Client will pay IHS the Fees as set forth in the Order Confirmation within 30 days from the date of the invoice. Any payments not received by IHS when due will be considered past due, and IHS may choose to accrue interest at the lesser of one and one-half percent (1.5%) per month or the highest rate permitted under law. Client has no right of set-off. Client will pay all the value-added, sales, use, import duties, customs or other taxes where applicable to the purchase of Products. IHS may request payment of the Fees before shipping the Products.
3. IHS grants to Client a nonexclusive, nontransferable license to use the Products for its internal business use only. Client may not copy, distribute, republish, transfer, sell, license, lease, give, disseminate in any form (including within its original cover), 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, store in any retrieval system of any nature, create a database or create derivative works from the Product or any portion thereof, except as specifically authorized herein. Any information related to third party company and/or personal data included in the Directory Product(s), may be used by Client for the limited purpose of enquiring about the products and services of the companies/organisations listed therein and who have given permission for their data to be used for this purpose only. Client must comply with all applicable data protection and privacy laws and regulations.
4. Client must not remove any proprietary legends or markings, including copyright notices, or any IHS-specific markings on the Products. Client acknowledges that all data, material and information contained in the Products are and will remain the copyright property and confidential information of IHS or any third party and are protected and that no rights in any of the data, material and information are transferred to Client. Client will take any and all actions that may reasonably be required by IHS to protect such proprietary rights as owned by IHS or any third party. Any unauthorised use may give rise to IHS bringing proceedings for copyright and/or database right infringement against the Client, including claiming an injunction, damages and costs.
5. Any dates specified in the Order Confirmation for delivery of the Products are intended to be an estimated time for delivery only and shall not be of the essence. IHS shall not be liable for any delay in the delivery of the Products. Unless otherwise agreed by the parties, packing and carriage charges are not included in the Fees and will be charged separately. The Products will be dispatched and delivered to the Delivery Point as per Client’s preferred method of delivery and as agreed by IHS. If special arrangements are required, then IHS reserves the right to additional charges. Except as provided hereunder, for all Products supplied hereunder, delivery is deemed to occur and risk of loss passes upon despatch of Products by IHS.
6. If for any reason IHS is unable to deliver the Products on time due to Client’s failure to provide appropriate instructions, documents or authorisations etc; (i) any risk in the Products will pass to the Client; (ii) the Products will be deemed to have been delivered; and (iii) IHS may store the Products until delivery, whereupon the Client will be liable for all related costs and expenses.
7. Except as otherwise required by law, Client will not be entitled to object or to return or reject the Products or any part thereof unless the Products are damaged in transit. IHS’s sole obligation and Clients’ exclusive remedy for any claim with respect to damaged Products will be to replace the damaged Products without charge. No returns will be accepted by IHS without prior agreement and a returns number issued by IHS to accompany the Products to be returned. All return shipments are at the Client’s risk and expense.
8. The possession and usage rights of the Products in accordance with clause 3 above will not pass to Client until IHS has received in full all sums due to it in respect of: (i) Fees; and (ii) all other sums which are or which become due to IHS from Client on any account. Until such rights have passed to Client, the Client will: (i) hold the Products in a fiduciary capacity; (ii) store the Products (at no cost to IHS) in such a way that they remain readily identifiable as IHS property; (iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and (iv) maintain the Products in satisfactory condition and keep them insured on IHS’ behalf for their full price against all risks to the reasonable satisfaction of IHS.
9. The quantity of any consignment of Products as recorded by IHS on dispatch from IHS’ place of business shall be conclusive evidence of the quantity received by the Client on delivery unless Client can provide conclusive evidence proving otherwise. IHS shall not be liable for any nondelivery of the Products (even if caused by IHS’ negligence) unless Client provides conformed claims to IHS of the non-delivery. Any such conformed claim for non-receipt of the Products must be made in writing, quoting the account and Order Confirmation number to the IHS’ Customer Service Department, within thirty (30) days of the estimated date of delivery as stated in the Order Confirmation.
10. The Products supplied herein are provided “AS IS” and “AS AVAILABLE”. IHS does not warrant the completeness or accuracy of the data, material, third party advertisements or information as contained in the Product or that it will satisfy Client’s requirements. IHS disclaims all other express or implied warranties, conditions and other terms, whether statutory, arising from course of dealing, or otherwise, including without limitation terms as to quality, merchantability, fitness for a particular purpose and noninfringement. To the extent permitted by law, IHS shall not be liable for any errors or omissions or any loss, damage or expense incurred by reliance on information, third party advertisements or any statement contained in the Products. Client assumes all risk in using the results of the Product(s).
11. If the Products supplied hereunder are subscription based, then, except as otherwise provided herein, the period of supply will run for one calendar year from the start date as specified in the Order Confirmation and the Fees will cover the costs of supply of all issues of the Product published in that year. If Client attempts to cancel the Product subscription anytime during such period; (i) the Fees payable for that year will be invoiced by IHS in full; or (ii) where Client has already paid the Fees in advance, any Fees relating to the remaining period shall be forfeited. In addition to other rights and subject to the provisions of this clause, IHS in its sole discretion may discontinue the supply of the Products if Client breaches any provision of these terms and conditions.
12. If IHS breaches any provision of these terms and conditions, IHS’ total aggregate liability for any damages/losses incurred by the Client arising out of such breach shall not exceed at any time the Fees paid for the Product which is the subject matter of the claim. In no event shall IHS be liable for any indirect, special or consequential damages of any kind or nature whatsoever suffered by the Client including, without limitation, lost profits or any other economic loss arising out of or related to the subject matter of these terms and conditions. However, nothing in these terms and conditions shall limit or exclude IHS’ liability for (i) death or personal injury caused by its gross negligence or wilful act; or (ii) its fraud or fraudulent misrepresentation;.
13. Client represents and warrants that it will not directly or indirectly engage in any acts that would constitute a violation of United States laws or regulations governing the export of United States products and technology.
14. The parties will comply with all applicable country laws relating to anticorruption and anti-bribery, including the US Foreign Corrupt Practices Act and the UK Bribery Act. The parties represent and affirm that no bribes or corrupt actions have or will be offered, given, received or performed in relation to the procurement or performance of these terms and conditions. For the purposes of this clause, “bribes or corrupt actions” means any payment, gift, or gratuity, whether in cash or kind, intended to obtain or retain an advantage, or any other action deemed to be corrupt under the applicable country laws.
15. All Products supplied herein are subject to these terms and conditions only, to the exclusion of any other terms which would otherwise be implied by trade, custom, practice or course of dealing. Nothing contained in any Client-issued purchase order, Clients’ acknowledgement, Clients’ terms and conditions or invoice will in any way modify or add any additional terms to these terms and conditions. IHS reserves the right to amend these terms and conditions from time to time.
16. These terms and conditions and any dispute or claim arising out of or in connection with them or their subject matter shall be governed by and construed in accordance with the laws of the state of New York and shall be subject to the exclusive jurisdiction of the New York Courts.