Data Management Services Licence

Transcription

1 Data Management Services Licence Between: (1) The Secretary of State for Communities and Local Government, acting through Ordnance Survey as Ordnance Survey and (2) [Full Name] as Service Provider Agreement [subject to contract] Page 1 of 26

2 Restricted commercial to the Parties to the Agreement This document must not be disclosed to any other party and must be treated as confidential between the parties to the Agreement. Trade marks Ordnance Survey and the OS Symbol are registered trade marks of Ordnance Survey, the national mapping agency of Great Britain. L0371_M_ Page 2 of 26

3 Contents Sections Page no 1 Definitions and interpretations Term Requests for Data and Delivery Grant of Licence Service Provider s obligations Ownership of Ordnance Survey Data and Marks Licence Fee Termination and effect Variation Auditing Confidential information Warranties and Liabilities Assignment, subcontracting and sublicensing Entire agreement Waiver Further assurance Notices Contracts (Rights of Third Parties) Act Jurisdiction and governing law Signing...21 Schedule 1 Data Request Form for...22 Page 3 of 26

4 This Agreement is made this...day of 200 Between: (1) The Secretary of State for Communities and Local Government, acting through Ordnance Survey, whose principal place of business is at Romsey Road, SOUTHAMPTON, UK, SO16 4GU (Ordnance Survey); and (2) [Service Provider][, a company registered in England and Wales or Scotland (company registration number [insert number]),] whose registered office is at [address] (the Service Provider). Background A B Licensees have acquired licences to use Ordnance Survey Data for their own Licensed Use. The Service Provider wishes to offer Data Management Services to the Licensees. In order to facilitate the same, the Service Provider wishes Ordnance Survey to license Ordnance Survey Data directly to the Service Provider and Ordnance Survey has agreed to license Ordnance Survey Data to the Service Provider for such purposes on the limited terms set out in this Agreement. Operative Terms: 1 Definitions and interpretations Expression Agreement Business Days Collective Purchase Agreement Confidential Information Contract Year Meaning means this agreement including its schedules. means any day on which banks in England and Wales are open for business excluding Saturdays, Sundays and public holidays. means (i) the Pan-government agreement (or its successor agreement) as between Ordnance Survey and the Department for Communities and Local Government; (ii) the Mapping Services Agreement (or its successor agreement) as between Ordnance Survey and Local Government Information House; and/or (iii) the One Scotland Mapping Agreement (or its successor agreement) between Scottish Ministers and Ordnance Survey. means any information that relates to the affairs of one party to this Agreement (the Discloser ) and that is acquired by the other party (the Recipient ) in anticipation of or as a result of this Agreement. Confidential information excludes information which is in the public domain other than through the breach of any duty of confidentiality. means twelve (12) calendar months commencing from the Effective Date or, if applicable, the anniversary of the Effective Date. Page 4 of 26

5 Data means any text, graphics, audio, visual (including still visual images) and/or audio visual material, software, applications, data, database content or other multimedia content, information and material. Data Request Form means the pro-forma data request form set out in Schedule 1 of this Agreement identifying the Ordnance Survey Data available under this Agreement, and which may be ordered by the Service Provider, as may be amended by Ordnance Survey from time to time. Data Management Services Effective Date Framework Direct Licence Agreement Intellectual Property Rights means the Service Provider s web orientated facility, which provides Licensees with the tools to use, view, access, store, retrieve, download, stream and/or modify Ordnance Survey Data (as permitted by and subject to the terms of the applicable Licence Agreement), and which may feature web map serving and web feature serving. means the date specified at the beginning of this Agreement and if no date is specified then the date this Agreement is countersigned by Ordnance Survey. means a separate and current framework direct licence agreement (including any applicable licensed use schedule(s), product schedule(s) and/or special condition(s)) between Ordnance Survey and a Licensee, which sets out the Licensed Use rights in respect of Ordnance Survey Data. means copyright, patent, trade mark, design right, database rights, trade secrets, know how, rights of confidence, broadcast rights and all other similar rights anywhere in the world whether or not registered and including applications for registration of any of them. Licence Agreement Means a Framework Direct Licence Agreement or Collective Purchase Agreement. Licence Fee means the annual sum of one thousand pounds ( 1 000) (excluding VAT) that the Service Provider shall pay to Ordnance Survey under this Agreement, as more particularly specified in Clause 7. Licensed Use Licensees means such authorised use of Ordnance Survey Data which is licensed to the Licensees as specified in the relevant Licence Agreement. means those parties that are directly licensed to use Ordnance Survey Data as end users by Ordnance Survey under a Licence Agreement. Page 5 of 26

6 Ordnance Survey Data Ordnance Survey Marks Ordnance Survey Updates Permitted Subcontractors Permitted Subcontractor Licence Specification Term means Data owned by or licensed to Ordnance Survey, as amended from time to time by Ordnance Survey Updates (as applicable), which is more particularly set out in the Data Request Form. means all or any Ordnance Survey owned or licensed trade, word and device marks (whether registered or unregistered), domain names, product or service names, brands or product or service look-and-feel (whenever and however created). means the updates, revisions and amendments to Ordnance Survey Data which Ordnance Survey may provide to the Service Provider from time to time pursuant to the terms of this Agreement. means the Service Provider s permitted sub-contractors that have entered into a Permitted Subcontractor Licence. means a licence, either in the form available on Ordnance Survey s website or such other sub-contractor licence which the Service Provider wishes to use provided that it includes terms and conditions that are substantially similar to and not inconsistent with the sub-contractor licence made available by Ordnance Survey on its website, which may be granted by the Service Provider to any subcontractor engaged by the Service Provider to enable the Permitted Subcontractor to provide works and/or services to the Service Provider. means the latest current specification of any Ordnance Survey Datasets as published on the Ordnance Survey s website and/or in hard copy form in relation to such products under the title Technical Sheet, as may be updated from time to time by Ordnance Survey pursuant to Clause 9.1. means the period in Clause 2.1 as extended from time to time in accordance with Clause Unless the context otherwise requires, each reference to a particular Clause shall be a reference to that Clause contained in this Agreement. 1.2 Headings are inserted for convenience only and shall not affect the interpretation of any provision of this Agreement. 1.3 Unless the contrary intention appears, words importing the masculine gender shall include the feminine and vice versa and words in the singular include the plural and vice versa in this Agreement. 1.4 A reference to any statute or statutory provision includes a reference to that statute or statutory provision as amended, extended or re enacted from time to time in this Agreement. Page 6 of 26

7 2 Term 2.1 Subject to Clauses 2.2 and 8, this Agreement shall commence on the Effective Date and shall continue for a Term of four (4) years. 2.2 Subject to Clause 8, after the expiry of each Contract Year during the Term, the Term shall be automatically extended by a further twelve (12) month period (or such other period as agreed by Ordnance Survey and the Service Provider in writing), unless either party gives the other party at least thirty (30) Business Days written notice prior to the expiry of the then current Contract Year that the Term is not to be extended. 3 Requests for Data and Delivery Initial request and supply of Ordnance Survey Data 3.1 The Service Provider may request an initial supply of the Ordnance Survey Data available under this Agreement (as is more particularly identified in the Data Request Form) from Ordnance Survey by submitting a Data Request Form. 3.2 The payment of the Licence Fee by the Service Provider and to the extent that the Service Provider does not already have possession of the applicable Ordnance Survey Data, Ordnance Survey will deliver to the Service Provider the initial Ordnance Survey Data requested under Clause 3.1 on the appropriate media (as set out in the Data Request Form) within a reasonable time of receiving a request pursuant to Clause 3.1. Ordnance Survey Updates 3.3 The Service Provider will be entitled to Ordnance Survey Updates as and when Ordnance Survey makes them available generally from time to time. Ordnance Survey may at any time suspend the provision and licensing of Ordnance Survey Updates under this Agreement by serving the Service Provider with a notice with immediate effect if the Service Provider is in breach of any of its obligations including without limitation non-payment of any Licence Fee or unauthorised disclosure of Confidential Information or unauthorised licensing or use of Ordnance Survey Data, until any breach entitling Ordnance Survey to give such notice has been remedied. This right is without prejudice to any other rights Ordnance Survey has under this Agreement or under general law. 3.4 To the extent that a Licensee gains access to Ordnance Survey Updates as part of the Data Management Services before such Ordnance Survey Updates would otherwise be made available to that Licensee under the terms of its Licence Agreement, Ordnance Survey agrees that access by that Licensee to the Ordnance Survey Updates as part of the Data Management Services shall take precedence over the update regime for Ordnance Survey Data as set out in that Licensee s Licence Agreement and not be deemed as a breach of this Agreement by the Service Provider. Page 7 of 26

8 Subsequent requests and supplies for additional Ordnance Survey Data or re-supplies 3.5 The Service Provider may request a re-supply or additional Ordnance Survey Data which is available under this Agreement (as is more particularly identified in the Data Request Form) from Ordnance Survey by submitting a Data Request Format at any time after the Service Provider s receipt of the initial supply of Ordnance Survey Data under Clause Each request for re-supply and/or additional Ordnance Survey Data pursuant to Clause 3.3 is subject to a fee of two hundred pounds ( 200) plus VAT and such sum is payable to Ordnance Survey at the same time the Service Provider submits the relevant Data Request Form. Ordnance Survey will provide the Service Provider with an invoice in respect of any fees under this Clause 3.6 within thirty (30) Business Days of its receipt of the relevant payment by the Service Provider. 3.7 Subject to Ordnance Survey s receipt of payment under Clause 3.6, Ordnance Survey will deliver to the Service Provider any re-supply and/or additional Ordnance Survey Data requested under Clause 3.5 on the appropriate media (which shall be determined solely by Ordnance Survey) within a reasonable time of receiving a request pursuant to Clause 3.5. General 3.8 Ordnance Survey will use its reasonable endeavours and commit reasonable levels of resource to assess any request and deliver Ordnance Survey Updates and/or Ordnance Survey Data pursuant to Clause 3. 4 Grant of Licence 4.1 Subject to the terms and conditions of this Agreement, Ordnance Survey grants the Service Provider a non exclusive, non transferable, revocable licence to access, hold and use Ordnance Survey Data during the Term solely for the purposes of the Service Provider providing Data Management Services to any Licensee. 4.2 For the avoidance of doubt, Service Provider may permit Licensees to evaluate or trial its Data Management Services, provided that such evaluation or trial complies with the terms of this Agreement, including but not limited to Clause Nothing in this Agreement permits the Service Provider to license any Ordnance Survey Data. 4.3 The Service Provider may appoint subcontractors to provide works and/or services to the Service Provider under a Permitted Subcontractor Licence provided that the Service Provider must not grant the Permitted Subcontractor any rights that exceed those granted to the Service Provider under this Agreement (including in relation to the Term or the rights granted) 4.4 The Service Provider shall remain liable to Ordnance Survey in respect of any act or omission of such Permitted Subcontractors and shall enforce the terms of such Permitted Subcontractor Licences. Permitted Subcontractor Licences shall terminate immediately upon this Agreement being terminated or expiring. Page 8 of 26

9 4.5 The Service Provider acknowledges that Ordnance Survey expressly reserves and retains all Intellectual Property Rights in Ordnance Survey Data and Ordnance Survey Updates and any copies made by the Service Provider and/or any Permitted Subcontractor. The Service Provider may not sub-license any Ordnance Survey Data in any way or for any purpose other than as expressly permitted under Clause 4.1 of this Agreement without Ordnance Survey s prior written agreement. 4.6 The Service Provider acknowledges that any further copies of Ordnance Survey Data made by the Service Provider must carry copyright and database right acknowledgements identical to those on the originals first provided to the Service Provider. As at the date of this Agreement, the appropriate acknowledgement is Crown copyright and database rights [year] Ordnance Survey. 4.7 Subject to the terms of this Agreement, Ordnance Survey grants to Service Provider a limited, non-exclusive, non-transferable, revocable licence to use the Ordnance Survey name to signal in Service Provider s product descriptions that Service Provider s Data Management Services are intended to operate with Ordnance Survey Data. With the exception of such limited licence, Service Provider shall not use or reproduce any Ordnance Survey Marks, draw any association with Ordnance Survey or the Ordnance Survey Marks, or use the Ordnance Survey name or Ordnance Survey Marks to indicate that the Data Management Services are endorsed, approved, tested by or otherwise associated with Ordnance Survey. The Service Provider acknowledges that any goodwill derived from the use of the Ordnance Survey name accrues to Ordnance Survey. Ordnance Survey may, at any time, call for a confirmatory assignment of that goodwill and Service Provider shall immediately execute it. 5 Service Provider s obligations Data Management Services 5.1 In respect of the Data Management Services, the Service Provider shall during the Term: use all adequate technological and security measures, in accordance with good industry practice, to ensure that all Ordnance Survey Data which it holds or is responsible for are secure from unauthorised use or access and are only used in accordance with the terms of this Agreement. Additionally, the Service Provider shall ensure that its Data Management Services are accessible by only those who are authorised in writing by the relevant Licensee in accordance with its Licence Agreement; Page 9 of 26

10 5.1.2 take active steps to satisfy itself during the Term that Data Management Services in respect of Ordnance Survey Data are only provided to those Licensees which confirm to the Service Provider: that they have a current and valid Licence Agreement; the actual Ordnance Survey Data they are licensed for; the geographic area they are licensed for; and the number of terminals on which they can access Ordnance Survey Data on procure that Licensees to whom Data Management Services are provided shall be obliged to inform the Service Provider immediately of any material change to their respective Licence Agreements, which shall include, without limitation, changes to the details set out in Clauses to above, termination or suspension; The Service Provider shall use its best endeavours to ensure that, other than as permitted under Clause 3.4, the Data Management Services provided under this Agreement shall not result in any Licensee accessing or using any additional Ordnance Survey Data (either by way of additional products, additional geographic coverage, access on a greater number of computers or for a greater duration) to that which is actually licensed to the relevant Licensee under its respective Licence Agreement; as soon as it becomes aware, ensure that it immediately ceases to provide Data Management Services to those who no longer hold a valid and current Licence Agreement; keep a written record of all agreements for the provision of Data Management Services it has entered into with all Licensees, which shall include information set out in Clause (and if available, a copy of the Licence Agreement); and make such records available to Ordnance Survey, within fourteen (14) Business Days of receiving a written request from Ordnance Survey, and ensure that is has the necessary consents from the Licensees to provide Ordnance Survey with such records, which Ordnance Survey shall treat as being Confidential Information. Ordnance Survey agrees not to make more than two (2) requests under this Clause in any twelve (12) month period. 5.2 Service Provider shall not provide, as part of its Data Management Services, data or products in vector format which have been created or derived from Ordnance Survey Data in raster format. Page 10 of 26

11 5.3 In the event that the Service Provider is notified or becomes aware of any material change to the Licence Agreement under which the relevant Licensee is licensed, which shall include, without limitation, termination or expiry of the relevant Licence Agreement, the relevant Licensee (to whom the Service Provider is providing Data Management Services) breaching the terms of the relevant Licence Agreement and/or is no longer licensed to use Ordnance Survey Data under the relevant Licence Agreement at any time during the Term, the Service Provider shall immediately cease providing Data Management Services to that Licensee and confirm to Ordnance Survey in writing within ten (10) Business Days that it has done so. 5.4 In the event that Ordnance Survey becomes aware of any Licensee being in breach of its Licence Agreement, a Licensee s Licence Agreement being terminated, suspended or any other change (including, but no limited to, the information set out in Clauses to above), Ordnance Survey may notify the Service Provider and request in writing that the Service Provider immediately ceases to provide that Licensee with access to the Data Management Services or amends the Ordnance Survey Data available as part of the Data Management Services (as applicable) (but only to the extent such Data Management Services provide access to Ordnance Survey Data) until Ordnance Survey otherwise notifies the Service Provider in writing. The Service Provider shall comply with any such request from Ordnance Survey and shall confirm that the Licensee in question is no longer being provided with access to Ordnance Survey Data or amends the Ordnance Survey Data available as part of the Data Management Services within five (5) Business Days of the date of Ordnance Survey s written request. General 5.5 The Service Provider shall ensure that: at all times it conducts its business in a manner which will not reflect unfavourably on Ordnance Survey Data or on the name and reputation of Ordnance Survey; it shall not by itself or with others participate in any illegal, deceptive, misleading or unethical practices including, but not limited to, disparagement of Ordnance Survey Data or Ordnance Survey or other practices which may be detrimental to Ordnance Survey Data, Ordnance Survey or the public interest; it shall not describe itself or allow itself to be described as Ordnance Survey s agent or representative or to act in any such way; Page 11 of 26

12 5.5.4 it shall notify Ordnance Survey as soon as it suspects any infringement or any other breach by a third party of any Intellectual Property Rights which may exist in Ordnance Survey Data, and give Ordnance Survey all reasonably required assistance in pursuing any infringement or other breach; and it shall not use Ordnance Survey Data obtained under this Agreement in any way or for any purpose other than to provide Data Management Services pursuant to the terms of this Agreement, and in particular, but without limitation, shall not use Ordnance Survey Data for the Service Provider s own day-to-day administration and/or internal use. 6 Ownership of Ordnance Survey Data and Marks 6.1 The Crown (or where applicable Ordnance Survey s suppliers) owns the Intellectual Property Rights in Ordnance Survey Data and Ordnance Survey Marks. All Ordnance Survey Data and Ordnance Survey Marks licensed under this Agreement remain the property of the Crown (or, where applicable, Ordnance Survey s suppliers) and the Service Provider s (or any Permitted Subcontractor s) use or possession of any Ordnance Survey Data or Ordnance Survey Marks does not give the Service Provider (or any Permitted Subcontractor) any ownership of or any interest in any of Ordnance Survey Data or Ordnance Survey Marks. Title to any copies that the Service Provider (or any Permitted Subcontractor) makes of Ordnance Survey Data or Ordnance Survey Marks shall pass to Ordnance Survey on their creation. Service Provider shall not under any circumstances use or apply for registration of any trade mark in respect of the Ordnance Survey Marks or any part of them, nor use or apply to register any trade mark similar to or likely to be confused with the Ordnance Survey Marks, nor register any domain name which is the same as, similar to or likely to be confused with any of the Ordnance Survey Marks. 6.2 Subject to any pre-existing or latent defect in the Ordnance Survey Data for which Ordnance Survey or its licensors are responsible, the Service Provider shall be responsible for all loss of or damage to Ordnance Survey Data from the time they are delivered to the Service Provider or made available to the Service Provider. 7 Licence Fee 7.1 In consideration of the rights granted to the Service Provider under this Agreement, the Service Provider shall pay to Ordnance Survey the Licence Fee on an annual basis from the Effective Date. For the avoidance of doubt, the Licence Fee is nonrefundable. 7.2 The Service Provider shall pay the Licence Fee in pounds sterling within thirty (30) days of Ordnance Survey s invoice date without deduction or set-off. 7.3 In addition to the Licence Fee, the Service Provider shall pay VAT and any other applicable taxes at the rate prevailing at the date of the invoice. Page 12 of 26

13 7.4 Subject to Clause 9, Ordnance Survey may at any time, but no more than once in any calendar year, give notice to the Service Provider of any change to the Licence Fees payable under this Agreement. Any change to the Licence Fee under this Clause 7.4 shall apply from the following anniversary of the Effective Date. For the avoidance of doubt, any change to the Licence Fees under this Clause will not be applied retrospectively. 8 Termination and effect 8.1 Either party may terminate this Agreement immediately upon giving the other notice: if the other party is in material breach of any of the terms of this Agreement and such breach is incapable of being remedied; if the other party is in material breach of any of the terms of this Agreement and the breach, being remediable, is not remedied within thirty (30) days from the date of a written request to do so, and for the avoidance of doubt any failure to pay a sum under this Agreement by the due date shall be a material breach; if the other party commits any persistent breach, whether or not such breaches are remedied within any required period; if the other party discloses Confidential Information of the first party or authorises use of the first party s Intellectual Property Rights to an unauthorised third party; and/or if the other party uses or authorises the use of the first party s Intellectual Property Rights or Confidential Information outside the scope of the rights granted under this Agreement. 8.2 Ordnance Survey may terminate this Agreement with immediate effect by giving the Service Provider notice in the event that: Ordnance Survey loses the right to administer Crown copyright (as defined in section 163 of the Copyright, Designs and Patents Act 1988) in respect of Ordnance Survey Data which it has been accustomed to supply to the Service Provider and/or any Licensee; the Service Provider is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; the Service Provider ceases to carry on business; the Service Provider has a receiver, administrative receiver, administrator or similar officer appointed over all or any part of its assets or undertaking; the Service Provider makes an assignment for the benefit of, or a composition with, its creditors generally or another arrangement of similar import; Page 13 of 26

14 8.2.6 the Service Provider commits an act of bankruptcy or goes into liquidation or is the subject of a petition for bankruptcy or a winding-up order otherwise than for the purposes of a bona fide amalgamation or reconstruction; the Service Provider undergoes a change of Control of its business, where Control shall mean the power (directly or indirectly) whether by holding of securities, voting control, contract or otherwise, to appoint or remove a majority of the directors of a company and includes the power to appoint or remove a majority of the directors of a company if exercisable through any number of intermediate bodies corporate prior to its possible exercise over the company in question; and/or there is any change in legislation, regulations or administrative practice or a decision by any competent court which shall in Ordnance Survey s opinion adversely affect its right to receive payment of all or any fees or other remuneration by whatever means payable to it, or its ability to supply Ordnance Survey Data or its ability to conduct its business. In such event, the Service Provider will be entitled to a rebate of a fair and reasonable proportion of the Licence Fee paid in advance if the licence period to which the Licence Fee relates has not fully expired as at the date of termination. 8.3 Service Provider may terminate this Agreement by giving Ordnance Survey at least one (1) year s written notice of such termination. 8.4 In the event of termination or expiry of this Agreement any accrued rights and remedies of either party will not be affected. 8.5 Unless the Service Provider is entitled to hold and use Ordnance Survey Data under a separate Agreement which is in force, as soon as this Agreement is terminated or expires, the Service Provider shall within thirty (30) days of such termination or expiry destroy (or arrange for the destruction of) all Ordnance Survey Confidential Information and Ordnance Survey Data in all media (including any Ordnance Survey Data embedded in any other material) which Service Provider holds or is responsible for, or at Ordnance Survey s option return (or arrange for the return of) all Ordnance Survey Data and Ordnance Survey Confidential Information to Ordnance Survey, and provide, at Ordnance Survey s request, a sworn statement by a duly authorised executive that the Service Provider no longer holds any such Ordnance Survey Data and Ordnance Survey Confidential Information. 8.6 In the event of termination or expiry of this Agreement, the Service Provider shall procure that all Permitted Subcontractor Licences will terminate automatically with immediate effect and shall procure that Service Provider s agreements and licences with Licensees shall also terminate with immediate effect, to the extent only that such agreements and licences relate to Ordnance Survey Data. The Service Provider shall ensure that any provisions relating to the termination and/or expiry of such Permitted Subcontractor Licences are enforced. 8.7 Notwithstanding the termination or expiry of this Agreement, those Clauses intended to survive termination or expiry, including without limitation, Clauses 1, 6, 8.4 to 8.7 (inclusive), 10, 11, 18, 19 and 20 shall continue in full force and effect. Page 14 of 26

15 9 Variation 9.1 Subject to the provisions of Clauses 9.2 and 9.3, Ordnance Survey reserves the right at any time to change the Specification of the Ordnance Survey Data and this Agreement (including, but not limited to the Licence Fees). For the avoidance of doubt, such change may amount to the withdrawal of the whole of an Ordnance Survey Dataset. All such changes shall become incorporated into this Agreement on the date which Ordnance Survey shall specify in a written notice to the Service Provider. Ordnance Survey shall provide the Service Provider with at least twelve (12) months notice of any such change. 9.2 Where a change to the Specification of the Ordnance Survey Data or this Agreement (including, but not limited to the Licence Fees) is deemed necessary by Ordnance Survey as a result of (i) a change in legislation, regulations or Government administrative practice, (ii) a decision by a competent court or (iii) a decision or ruling by any statutory or regulatory body which is likely, in Ordnance Survey s reasonable opinion, to have an adverse impact on the operating conditions or business of Ordnance Survey, Ordnance Survey shall give not less than thirty (30) days notice of any such change (provided always that such notice may be less than thirty (30) days where such change is required by law) and the remaining provisions of Clauses 9.1 and 9.4 shall be adjusted accordingly. 9.3 Where a withdrawal of the whole of an Ordnance Survey Dataset is deemed necessary by Ordnance Survey as a result of the exercise of rights by a third party or Ordnance Survey s reasonable anticipation of the exercise of such rights, the provisions of Clause 9.1 requiring not less than twelve (12) months notice to be provided by Ordnance Survey shall not apply. 9.4 If the Service Provider does not find the changes made in accordance with Clause 9.1 acceptable, it may terminate this Agreement in the event that such changes relate to this Agreement by giving at least thirty (30) days written notice to Ordnance Survey and provided that the termination is to occur before the notified date of the relevant change. In such event, Ordnance Survey shall rebate pro rata any Licence Fees already invoiced and paid in respect of the remainder of the then current calendar year. 9.5 Notwithstanding the right reserved by Ordnance Survey in Clause 9.1 at any time to change the Specification of the Ordnance Survey Data or this Agreement in accordance with the provisions of that Clause, Ordnance Survey and the Service Provider may amend or vary any provision of the Specification of the Ordnance Survey Data or this Agreement in such manner as they may at any time agree in writing. 10 Auditing 10.1 The Service Provider shall provide evidence of compliance with any of its obligations under this Agreement to Ordnance Survey, including, without limitation, in connection with the measures set out in this Clause 10, if Ordnance Survey so requests. Page 15 of 26

16 10.2 The Service Provider will maintain accurate, complete and detailed records relating to all transactions arising out of this Agreement. In particular the Service Provider shall ensure that Ordnance Survey Data are secure from external access other than by the Licensees authorised users. Ordnance Survey Data must be robustly encrypted and/or only accessible through a controlling and monitoring system such as a secure network to the number of users as set out in the relevant Licence Agreement. Such controlling and/or monitoring systems must be capable of ensuring that the Licensees can only access Ordnance Survey Data licensed to them under the relevant Licence Agreement and must be capable of producing reports which can accurately identify which users have accessed particular Ordnance Survey Data and for what periods of time. To meet the requirements of the National Audit Office and Ordnance Survey s own business requirements, the representatives of the National Audit Office and Ordnance Survey shall have the right on reasonable notice during business hours to enter the Service Provider s premises and to inspect and audit its books of account and all supporting documentation to ensure its compliance with the security and intellectual property aspects of this Agreement and to take copies of any necessary records. The Service Provider shall, at its own expense, make appropriate employees and facilities available to provide Ordnance Survey and/or the National Audit Office with all reasonable assistance to enable such inspection, auditing and copying to take place Ordnance Survey may stipulate a range of reasonable measures arising from the findings of any audit by which it can ensure the compliance of the Service Provider with its obligations under this Agreement. 11 Confidential information 11.1 Each party agrees: to use Confidential information only for performing its obligations and in accordance with its rights under this Agreement; to keep all Confidential Information secure, and to disclose it only to those employees, consultants, directors and professional advisers who are directly involved in this Agreement and who are subject to at least the same obligations of confidentiality in relation to the Confidential Information as the Service Provider; to notify the other without delay of any unauthorised use, copying or disclosure of the Confidential Information of which it becomes aware and provide all reasonable assistance to the other to stop such unauthorised use and/or disclosure; Page 16 of 26

17 that Confidential Information shall at all times remain the property of the Discloser. Other than as set out elsewhere in this Agreement, no licence of Intellectual Property Rights is granted by any disclosure of Confidential Information. Confidential Information may not be copied or reproduced by the Recipient without the Discloser s prior written consent, and any permitted copies are also Confidential Information; and except as required by law or by governmental or regulatory requirements, not to disclose Confidential Information to any third parties without the other s prior written consent The obligations in this Clause 11 do not apply to any information which the Recipient can demonstrate was previously known to it (unless acquired directly from the Discloser or in breach of any obligation of confidentiality) or independently developed by it without the use of any Confidential Information Neither party may divulge directly or indirectly to the press or any other third party, other than to its professional advisers, and where it is required by law to do so, details of this Agreement. 12 Warranties and Liabilities 12.1 Ordnance Survey warrants that it is authorised by the Controller of Her Majesty s Stationery Office, who holds and exercises Crown Copyright (as defined in section 163 of the Copyright, Designs and Patents Act 1988) and other Intellectual Property Rights owned by Her Majesty, to grant licences to use such copyrights and other Intellectual Property Rights on the terms of this Agreement but does not warrant that the Intellectual Property Rights subsist in, or that Her Majesty owns (either at all or free from encumbrances or licences) all of the Ordnance Survey Data and any condition, warranty or representation, whether express or implied, to the contrary is hereby excluded to the maximum extent permissible by law Ordnance Survey shall use its reasonable endeavours to ensure that the Ordnance Survey Data substantially conforms to the relevant Specification. If within ninety (90) days of receipt and before the next Ordnance Survey Update the Service Provider notifies Ordnance Survey that the Ordnance Survey Data does not so conform, Ordnance Survey will use reasonable endeavours to rectify the problem so that the rectified data substantially conforms to the relevant Specification provided that the failure to conform has not been caused by any modification, variation or addition not performed or authorised by Ordnance Survey, and has not been caused by any abuse or corruption of the Ordnance Survey Data by computer software equipment with which it is incompatible. Ordnance Survey will provide any such rectified Ordnance Survey Data with the next scheduled Ordnance Survey Update or, at its option, before the next Ordnance Survey Update. The supply of the substitute Ordnance Survey Data shall be the Service Provider s sole and exclusive remedy and Ordnance Survey s sole and exclusive liability for supplying faulty or incomplete Ordnance Survey Data or Ordnance Survey Data which do not conform to the relevant Specification. Page 17 of 26

18 12.3 Ordnance Survey excludes, to the fullest extent permissible by law and except as expressly stated in this Clause 12, all warranties, conditions, representations or terms, whether express or implied by common law, statute or otherwise, including, but not limited to, any regarding the accuracy, compatibility, fitness for purpose, performance, satisfactory quality or use of Ordnance Survey Data or Ordnance Survey Updates Subject to Clause 12.2, the parties acknowledge that Ordnance Survey shall have no liability whatsoever to the Service Provider in respect of Ordnance Survey Data, including, but not limited to, its use, accuracy or integrity or any matter or thing in connection with this Agreement, save where such liability has arisen as a direct result of an act or acts of fraudulent misrepresentation or gross negligence Nothing in this Agreement shall have the effect of excluding or limiting the liability of either party for death or personal injury to the extent it results from its negligence, or that of its employees or agents in the course of their engagement hereunder; or fraud Ordnance Survey s total liability (whether in contract, tort (including negligence) or otherwise) under or in connection with this Agreement will not at any time exceed an amount equal to one thousand pounds ( 1 000) The Service Provider hereby warrants that the Data Management Services do not and will not contain any material which is obscene or defamatory or which infringes any Intellectual Property Rights of any person. For the avoidance of doubt this warranty does not apply to the infringement of any Intellectual Property Rights by Ordnance Survey in the Ordnance Survey Data and does not apply to the infringement of any third party Intellectual Property Rights by use of Ordnance Survey Data in accordance with this Agreement The Service Provider will be liable for and will indemnify and keep Ordnance Survey (and its employees, directors, subcontractors and agents) indemnified from and against any and all claims, demands, proceedings, costs, charges, damages, loss and liability incurred or suffered by Ordnance Survey whether direct, indirect or consequential (including without limitation any economic loss or other loss of profits, business or goodwill) arising out of: any infringement or breach of Intellectual Property Rights in Ordnance Survey Data by the Service Provider or by any other party which has obtained Ordnance Survey Data from the Service Provider; and any use by Service Provider or the Service Provider's Permitted Subcontractors of Ordnance Survey Data and/or Ordnance Survey Confidential Information which is not expressly permitted under this Agreement. 13 Assignment, subcontracting and sublicensing 13.1 The Service Provider shall only be entitled to assign, transfer or novate rights and/or obligations under this Agreement with the prior written consent of Ordnance Survey. Page 18 of 26

19 13.2 Ordnance Survey shall be entitled to assign, transfer or novate the benefits and obligations of this Agreement to any government body or nominated subcontractor or, in the event of the transfer of all or any of its activities or functions to any other entity, to the entity to which its activities or functions have been transferred. The Service Provider expressly agrees to the assumption of Ordnance Survey s obligations under this Agreement by that entity. 14 Entire agreement The parties agree that this Agreement and any documents referred to in it constitute the entire agreement with regard to the Service Provider s right to have access to Ordnance Survey Data for the purpose of providing Licensees with Data Management Services. This Agreement supersedes all understandings, representations and agreements made between the parties concerning such matters. However, neither party seeks to exclude liability for any fraudulent misrepresentations. 15 Waiver 15.1 The waiving (which must be in writing and signed by an authorised representative of the relevant party) on a particular occasion by either party of rights under this Agreement does not imply that other rights will be waived If a party has a right arising from the other party s failure to comply with an obligation under this Agreement and delays in exercising or does not exercise that right, such delay in exercising or failure to exercise is not a waiver of that right or any other right. 16 Further assurance The parties shall do and execute all such further acts and documents as are reasonably required to give full effect to the rights given and the transactions contemplated by this Agreement. 17 Notices 17.1 Any notice required to be given for the purposes of this Agreement shall be given in writing by sending the notice by either: prepaid first-class post; recorded delivery; facsimile; or delivery by hand. Page 19 of 26

20 17.2 Any notice shall be sent to the following address/fax number or other contact details: for Ordnance Survey: a) Contact [name] b) Address Romsey Road, SOUTHAMPTON, UK, SO16 4GU c) Telephone: d) Facsimile: for the Service Provider: e) Contact [name] f) Address [address] [address2] g) Telephone [telephone number] h) Facsimile [fax number] Or such other contact details as either party shall notify to the other in writing Any notice sent by prepaid first-class post or recorded delivery shall be deemed to have been served two (2) business days after posting. Any notice sent by facsimile shall be deemed to have been served on the next business day following sending, provided that electronic confirmation of transmission has been received. Any notice delivered by hand shall be deemed to have been served on the same day if received before 4.00 pm on a business day or on the next business day if received after 4.00 pm. 18 Contracts (Rights of Third Parties) Act 1999 Apart from Ordnance Survey and the Controller of Her Majesty s Stationery Office, a person who is not a party to this Agreement has no right under the Contacts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any terms of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act. Page 20 of 26

21 19 Jurisdiction and governing law This Agreement will be governed by and construed in accordance with English law. Both parties submit to the exclusive jurisdiction of the English courts in respect of any proceedings issued by either party in connection with this Agreement. 20 Signing In witness whereof the hands of the duly authorised representatives the day and year first above written. Signed for and on behalf of The Secretary of State for Communities and Local Government, acting through Ordnance Survey Signed for and on behalf of [Insert name of the Service Provider] Signature... Signature... Name Title Date Name Title Date Page 21 of 26

22 Schedule 1 Data Request Form for Data Management Services Licence 1 Your details Your Company or Organisation Name Your Account number (if you have one) Delivery address Invoice address (if different) Postcode Postcode Purchase Order Number (if required) This request is for (please tick one of the following): An initial supply of Ordnance Survey Data: A supply of Ordnance Survey Data after an initial supply but not previously requested: A re-supply of Ordnance Survey Data already held: Please note each re-supply is subject to the fee set out at Clause 3.6 of this Licence. Please state the reason if you are requesting a re-supply below. Page 22 of 26

23 2 Technical and order options We will supply coverage for the whole of Great Britain only. Please indicate in the boxes provided which product(s) you require and the supply format where a choice is offered. You are limited to one format choice only within the standard licence fee where a choice is available. Further charges will apply should you require product supply in multiple formats. Product Format 1: Scale Colour Raster TIFF 8 bit uncompressed TIFF 8 bit LZW compression* 1: Scale Colour Raster TIFF 8 bit uncompressed TIFF 8 bit LZW compression* BMP uncompressed BMP RLE compression PCX 1: Scale Colour Raster TIFF 8 bit LZW compression* TIFF packbit compression 1: Scale Colour Raster TIFF 8 bit LZW compression* 1: Scale Black & White Raster TIFF Group 3 compression TIFF Group 4 compression TIFF packbit compression OS MasterMap Topography GML only ITN GML only ITN RRI GML only Boundary-Line ITN HGV XLS only BS 7567 (NTF v2.0) Level 3 ESRI Shapefile (Nested**) ESRI Shapefile (Layers***) MapInfo Interchange format (MID/MIF) (Nested**) MapInfo Interchange format (MID/MIF) (Layers***) MapInfo Table files (TAB) (Nested**) OS Street View MapInfo Table files (TAB) (Layers***) TIFF 8 bit LZW compression* TIFF packbit compression JPEG OS Locator ASCII Text File with colon separated values Meridian 2 BS 7567 (NTF v2.0) Level 3 DXF**** ESRI Shapefile MapInfo Interchange format (MID/MIF) 1: Scale Gazetteer Text Land-Form PANORAMA DTMs BS 7567 (NTF v2.0) Level 5 Page 23 of 26

24 Product Contours Land-Form PROFILE DTMs Contours Land-Form PROFILE Plus DTM only Strategi Miniscale OS VectorMap Local Format DXF**** BS 7567 (NTF v2.0) Level 2 DXF**** BS 7567 (NTF v2.0) Level 5 DXF**** BS 7567 (NTF v2.0) Level 2 DXF**** BS 7567 (NTF v2.0) Level 5 DXF**** ArcGrid BS 7567 (NTF v2.0) Level 3 DXF**** ESRI Spatial data format (Shapefile) MapInfo Interchange format (MID/MIF) Macromedia FreeHand 10 & MX Editable EPS Adobe Illustrator 10 Raster TIFF LZW compression Adobe Photoshop GML only * You may be required to register your data use on the UNISYS website if you use LZW compression formats. ** Boundary-Line Nested options. The data is contained in named files that include the named hierarchy of electoral boundaries that belong under the high level named administration. *** Boundary-Line Layers options. The data is produced as separate files supplying the different levels of boundaries as individual files. **** AutoCAD Release 12 compatible. Page 24 of 26

25 3 Additional Information OS MasterMap options You need to choose from the following options to allow us to process a request for OS MasterMap. You may have already received technical advice from us to help you complete this section. If not, please request assistance from us if you are not sure which option to choose. Chunking NGC GEO FVDS required? Required Not required We will supply OS MasterMap Topography Layer as a Managed GB Dataset with Change Only Update supplied after the initial supply. If you need to provide us with further information that you feel will help us process your order more efficiently, please do so in the space below. 4 Media The standard data supply will be on DVD for all datasets larger than 650Mb and on CD-ROM ISO 9660 (High Sierra) for datasets smaller than this. 5 Declaration and confirmation of request The supply of Ordnance Survey Data as set out in this Data Request Form shall be on the terms and conditions contained in the ( the Licence ). By signing and completing the section below you confirm that you wish to be bound by the Licence. Provided you have read and understood the above, please sign below. In so doing you confirm that you are authorised to do so on behalf of your company/organisation. Name of individual Signature Job title Telephone Number Address Fax Number Date Please return the completed form by post or to our contact nominated in your Licence at Ordnance Survey, Romsey Road, SOUTHAMPTON, SO16 4GU. Page 25 of 26

26 Please remember to keep a copy for your reference or in case Ordnance Survey needs to contact you. If you have any difficulties using this form please contact your Account Manager telephone: or customerservices@ordnancesurvey.co.uk quoting Data Management Services Licence. 6 For Ordnance Survey use only Contract signed/contract still in force (please tick) Data Request authorised for processing by Digital Supply under the terms of the Licence. Name Signature Date Ordnance Survey, the OS Symbol, OS MasterMap, Code-Point, Land-Form PROFILE, Strategi, OS Street View, MiniScale are registered trademarks and Boundary-Line, Meridian, OS Locator and OS VectorMap are trademarks of Ordnance Survey, the national mapping agency of Great Britain. ESRI is a registered trademark of Environmental Systems Research Institute Incorporated. AutoCad is a registered trademark and DXF is a registered trademark of AutoDesk Inc. MapInfo is a registered trademark of MapInfo Corporation. LZW is a trademark of the UNISYS Corporation. Adobe, Illustrator and Photoshop are registered trademarks of Adobe Systems Incorporated. Macromedia and FreeHand are registered trademarks of Macromedia Incorporated. Page 26 of 26