1. APPLICABILITY; OFFERS
1.1 These general terms and conditions are applicable to all offers made by Experian, and on all legal relationships and agreements Experian is a party to under which Experian provides goods and/ or services of whatever nature to the Client.
1.2 All offers made by Experian are subject to contact. Experian is only bound by any agreement after the written contract has been signed by the Experian Authorised Signatory.
1.3 Experian is entitled unilaterally to amend and/or supplement these general terms and conditions. In that case Experian will send the amended general terms and conditions to the Client. The amended general terms and conditions shall come into force on the date announced. If no date has been announced for the amended general terms and condition to come into force, the amended general terms and conditions shall come into force as soon as the Client has been informed about the amended terms and conditions.
2.1.1 The Agreement sets out all the terms agreed between the parties relating to the subject matter of the Agreement and supersedes any previous agreement between the parties relating to the same subject matter.
2.1.2 Neither party shall be bound by, or liable to the other party for, any representation, promise or inducement (other than fraudulent misrepresentations) made by any agent or person on behalf of such party, which is not contained in the Agreement.
2.2 In the Agreement:
2.2.1 any reference to a statutory provision includes a reference to any modification or re-enactment thereof from time to time;
2.2.2 the headings are for ease of reference only and shall not affect the construction or interpretation of the Agreement.
3.1 Variations of the Agreement shall not be effective unless recorded in writing and signed by Experian’s Authorised Signatory.
4. PRIMARY OBLIGATIONS AND WARRANTIES
4.1 Experian shall:
4.1.1 provide the Services in the Territory in accordance with the Specification;
4.1.2 use all reasonable care and skill in the performance of the Services;
4.1.3 use all reasonable care and skill in the collection and collation of any data on which the Services are based or which are comprised within the Services;
4.1.4 only use personnel in the provision of the relevant Services who are suitably qualified;
4.1.5 use all reasonable endeavours to perform its obligations under the Agreement in accordance with the Project Timetable. The terms of the timetable and other terms included in the Agreement are not fatal. Experian is only in default [verzuim] after sufficient written warning and after Experian is given a reasonable additional period of time to perform.
4.2 The Client shall provide Experian with any information or assistance which the parties have agreed the Client shall provide or that is reasonably required in order for Experian to perform its obligations under the Agreement, and shall use all reasonable endeavours to ensure that any such information provided to Experian is complete, accurate and in the agreed format.
4.3 Each party shall ensure that its personnel whilst on the premises of the other party, comply with that party’s reasonable regulations governing security, health and safety as have been notified to it.
4.4 Each party warrants that:
4.4.1 it has the full power and authority to enter into the Agreement;
4.4.2 it has obtained and will during the Term continue to hold all necessary licences, consents, permits and agreements required for it to comply with its obligations under the Agreement and for the grant of rights granted to the other party under the Agreement;
4.4.3 the use by the other party as permitted by the Agreement of any information, data, software, documentation, scorecards and/ or services which it provides to the other party shall not infringe any third party Intellectual Property Rights;
4.4.4 to the extent that any Experian Materials, Experian Data or Derivative Output are provided to the Client in or on any physical media, such media shall be free of any defects in materials and workmanship on delivery. If there is any breach of this warranty Experian shall (as the Client’s sole remedy for such breach except in respect of any claim for personal injury or death) replace such defective media at no cost to the Client provided that such defects are not caused by any improper use or abuse of the media by the Client.
4.5 The Client understands and accepts that the Services involve the use of the Experian Data and Derivative Output, which is based upon and comprises data provided to Experian by third parties or is otherwise publicly available and Experian is not able to control or verify the accuracy and/or completeness of such data. Accordingly, whilst Experian agrees to use all reasonable care and skill in the collection and collation of the Experian Data and Derivative Output it otherwise gives no warranty about the accuracy or fitness for any particular purpose of the Experian Data and Derivative Output and in particular accepts no liability for any inaccuracy, incompleteness or other error in the Experian Data or Derivative Output.
4.6 The Client acknowledges that:
4.6.1 systems to assess the creditworthiness and/or propensity to act fraudulently and/or level of insurance risk of persons (being individuals, partnerships or corporations) being empirically based can only be statistically predictive;
4.6.2 methods for the selection of potential customers and existing customers cannot guarantee the response which individuals will make, nor the suitability of those individuals for any products and/or services offered to them;
4.6.3 systems, which use empirical data and/or statistical data and/or data modelling techniques to provide indicative and/or predictive data, cannot be taken as a guarantee of any particular outcome;
4.6.4 in the ordinary course of events and by its very nature, the accuracy and utility of the Experian Data and Derivative Output will deteriorate rapidly following its delivery to the Client and/or Additional Users. Accordingly Experian does not make any warranty or representation that the use by the Client and/or Additional Users of any of the Services which involves the use of such indicative and/or predictive systems or data models or techniques will achieve any particular result for the Client and/or Additional Users and the Client acknowledges that the Services are not intended to be used as the sole basis for any business decision made by the Client and/or Additional Users.
4.7 The warranties expressly set out in the Agreement are the only warranties that each party gives to the other in respect of the subject matter of the Agreement. All other warranties, representations or terms of equivalent effect that might be implied by law are excluded to the extent permitted by law.
5. ADDITIONAL USERS
5.1 For as far as the Client is entitled to allow Additional Users to exercise Additional User Rights, the Client agrees as follows:
5.1.1 the Client shall procure that each Additional User complies with all relevant provisions of the Agreement; and
5.1.2 the Client shall fully indemnify and keep fully indemnified Experian against all and any actions, proceedings, claims and demands brought against Experian by any Additional User arising as a result of such use, however the Client shall be entitled to bring a claim (subject to Clause 11) against Experian in respect of all losses, liabilities, claims, costs and expenses suffered or incurred by an Additional User which, for the purposes of this Clause 5.1, shall be deemed to be losses, liabilities, claims, costs and expenses of the Client for the purposes of recovery from Experian.
6. COMPLIANCE AND AUDIT
6.1 Each party shall, in connection with the provision or use of the Services (as appropriate), comply with all legislation, regulations, and other rules having equivalent force which are applicable to that party, including (especially) all relevant obligations arising out of the GDPR and connected legislation.
6.2 Notwithstanding anything to the contrary contained herein Experian shall not be required to vary, amend and/or enhance the Services and/or Experian Materials and/or Experian Data as a result of the provision of Clause 6.1 other than where either specifically agreed with the Client or where Experian, in its reasonable opinion, considers that such variation, amendment and/or enhancement is fundamental to the continued use of its services by its clients generally.
6.3 Experian shall (in circumstances where it is a data processor) process any Personal Data only in accordance with the instructions of the Client. The Client shall be deemed to have instructed Experian to process any such Personal Data to the extent necessary for the provision of the Services.
6.4 The Client shall ensure that the Processing by Experian (as contemplated by the Agreement) of any Personal Data which the Client makes available to Experian satisfies the requirements of articles 6 and 13 of the GDPR.
6.5 In order to protect the integrity of the data used in connection with the Services, the Client shall:
6.5.1 comply with Experian’s reasonable instructions and guidelines relating to data security;
6.5.2 not copy, interfere with and/or use in any unauthorised way any digital certificate, web certificate or any other security device provided by Experian;
6.5.3 in all cases where use of the Services is dependent upon CAIS Data enter into and comply with Experian’s standard CAIS agreement.
6.6 Each party warrants that it shall take appropriate technical and organisational measures against the unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to the Personal Data of the other party.
6.7 Each party shall permit the other (on reasonable notice and during normal working hours) to audit the first party’s compliance with its obligations under the Agreement in relation to the use of any software, data or other materials arising out of the Agreement. The party carrying out the audit shall
6.7.2 observe the other party’s procedures relating to the protection of confidential information about any clients or customers of the other party;
6.7.2 take all reasonable steps to minimise disruption to the other party’s business during such audit.
6.8 If as a result of any changes in any legislation, regulations, codes or other rules having equivalent force, (including any reasonable interpretation thereof), or any change with regard to any licence (right of use with regard to third party data or other materials) held by Experian (including the termination of such licence), Experian considers in its reasonable opinion that it is no longer possible or commercially viable for Experian to continue to provide the Services, Experian Materials, Experian Data and/or the Experian Equipment at all or in accordance with the Agreement, Experian shall be entitled to do one of the following on reasonable notice to the Client:
6.8.1 modify the affected Services, Experian Materials, Experian Data and/or Experian Equipment as necessary to accommodate such changes; or
6.8.2 terminate the Agreement (without liability) in respect of those Services, Experian Materials, Experian Data and/or Experian Equipment, which are affected by such changes.
6.9 In exercising its rights under clause 6.8, Experian will consult with the Client, and act reasonably and in a way which is consistent with its treatment of its other clients.
7.1 Each party shall, in respect of the Confidential Information for which it is the recipient:
7.1.1 keep the Confidential Information strictly confidential and not disclose any part of such Confidential Information to any third party except as disclosure to third parties is permitted by the Agreement and than only or as required for the performance of the recipient’s obligations under the Agreement;
7.1.2 take all reasonable steps to prevent unauthorised access to the Confidential Information;
7.1.3 not use the Confidential Information other than for the purposes set out in the Agreement;
7.2 The parties may disclose the Confidential Information to, and allow its use in accordance with the Agreement by, the following (as long as the conditions in Clause 7.3 are met):
7.2.1 employees and officers of the recipient who necessarily require this information as a consequence of the performance of the recipient’s obligations under the Agreement;
7.2.2 the recipient’s auditors and professional advisors solely for the purposes of providing professional advice and any other persons or bodies having a legal right or duty to have access to, or knowledge of, the Confidential Information in connection with the business of the recipient
7.2.3 in the case of Experian being the recipient, agents and subcontractors of Experian who necessarily require this information as a consequence of the performance of Experian’s obligations under the Agreement, and Experian Group Companies and any person as permitted by the GDPR or any other statutory provision;
7.2.4 in the case of the Client being the recipient, Additional Users to the extent required to enable such Additional Users to exercise the Additional Users' Rights.
7.3 As a condition of the rights set out in Clause 7.2 (excluding Clause 7.2.3) the party wishing to exercise the rights must:
7.3.1 ensure that any party to whom it discloses Confidential Information is under an obligation of confidentiality in relation to such Confidential Information; and
7.3.2 procure that such persons observe the restrictions mentioned in this Clause 7.
7.4 The restrictions in Clause 7.1 do not apply to any information to the extent that it:
7.4.1 is or comes within the public domain other than through a breach of Clause 7.1; or
7.4.2 is in the recipient’s possession (with full right to disclose) before receipt from the other party; or
7.4.3 is lawfully received from a third party (with full right to disclose); or
7.4.4 is independently developed by the recipient without access to or use of the Confidential Information;
7.4.5 is required to be disclosed by law or by a court of competent jurisdiction or by any regulatory body.
8. LICENCE AND USE
8.1 If the supply of the Services by Experian to the Client includes the supply of Experian Data and/or Experian Materials, for use by the Client, Experian grants the Client a non-exclusive, non-transferable licence to use the Experian Data and/or Experian Materials in the Territory for the Permitted Purpose on the licence terms identified in the Agreement. The licence granted under this clause is made separately in respect of each individual element of the Experian Data and/or Experian Materials as identified in the Agreement and commences on the day that each such element of the Experian Data and/or Experian Materials is first made available to the Client and continues for the remainder of the Term.
8.2 The licence granted under Clause 8.1 will automatically expire on termination of the Agreement for any reason (unless the licence is expressed in the Agreement to be perpetual in which case (subject always to the provisions of Clause 16.2 in which case it shall terminate) the licence and any terms relating to the extent and/or exercise of that licence shall remain in force notwithstanding termination of the Agreement).
8.3 For as far as necessary the Client grants Experian:
8.3.1 a perpetual, royalty free, non-exclusive, non-transferable licence to use and copy the Client Data which is provided to Experian or input into any of Experian’s databases under or in accordance with the terms of the Agreement for the agreed purposes;
8.3.2 subject to Clause 8.3.1 for the Term, a royalty free, nonexclusive and non-transferable licence to copy and use any Client Materials in order to perform its obligations under the Agreement.
8.4 If Experian Data and/or Experian Materials are supplied under licence to the Client, the Client agrees that it will:
8.4.1 only use the Experian Data and/or Experian Materials for the Permitted Purpose and in accordance with any Documentation;
8.4.2 (subject to Clauses 5) not sell, transfer, sub-license, distribute, commercially exploit or otherwise make available to, or use for the benefit of, any third party any of the Experian Data and/or Experian Materials;
8.4.3 not (and will not allow any third party to) copy, adapt, alter, modify, reverse engineer, de-compile or otherwise interfere with the Experian Data and/or Experian Materials or combine the same with other materials without the prior written consent of Experian or as otherwise permitted by law;
8.4.4 only make such copies of the Experian Data and/or Experian Materials as are reasonably required for the use of the Experian Data and/or Experian Materials in accordance with the Agreement;
8.4.5 only use the Experian Data and/or Experian Materials on Client Equipment and at the own premises of the Client or on such other equipment or at such other site as may be agreed by the parties in writing;
8.4.6 in the case of a user, machine and/or site specific licence, only use the Experian Data and/or Experian Materials for the users, on the equipment and/or at the site specified in the Agreement (as the case may be), or, if a maximum number of users, machines and/ or locations has been agreed upon, only up to this maximum;
8.4.7 not allow any third party to amend, modify or otherwise alter the Experian Data and/or Experian Materials without Experian’s prior written consent.
8.5 The Client acknowledges that to the extent the Experian Data and/or Experian Materials comprise complex and extensive computer instructions and code, Experian cannot, and does not, warrant that the operation of the Experian Data and/or Experian Materials shall be uninterrupted or entirely error free.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in the Client Materials will remain vested in the Client (or its relevant licensors). To the extent that any rights in such materials and data vest in Experian by operation of law, Experian hereby transfers such rights to the Client and, if applicable, gives the Client its permission to register such transfer in the relevant registers.
9.2 All Intellectual Property Rights in the Experian Materials, the Experian Data and the Derivative Output will remain vested in Experian (or its relevant licensors). To the extent that any rights in such materials and data vest in the Client by operation of law, the Client hereby transfers such rights to Experian and, if applicable, gives Experian its permission to register such transfer in the relevant registers.
9.3 Each party:
9.3.1 acknowledges and agrees that it shall not acquire or claim any title to any of the other party’s (or the other party's licensors’) Intellectual Property Rights by virtue of the rights granted to it under the Agreement or through its use of such Intellectual Property Rights;
9.3.2 agrees that it will not, at any time, do, or omit to do, anything which is likely to prejudice the other party’s or its licensors’ ownership of such Intellectual Property Rights;
9.3.3 agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the materials of the other party and agrees to incorporate any such proprietary markings in any copies it takes of such Materials.
10. THIRD PARTY CLAIMS
10.1 Subject to Clause 10.3, Experian shall fully indemnify the Client against:
10.1.1 any amounts paid by the Client to any third party as a result of or in connection with any claim which that third party brings against the Client alleging that its Intellectual Property Rights are infringed by the provision by Experian to the Client of the Experian Materials or the use of the Experian Materials by the Client as permitted by the terms of the Agreement;
10.1.2 and any associated legal expenses reasonably and properly incurred.
10.2 Subject to Clause 10.3, the Client shall fully indemnify Experian against:
10.2.1 any amounts paid by Experian to any third party as result of or in connection with any claim which that third party brings against Experian alleging that its Intellectual Property Rights are infringed by the provision by the Client to Experian of the Client Materials or the use of the Client Materials by Experian as permitted by the terms of the Agreement; and
10.2.2 any associated legal expenses reasonably and properly incurred.
10.3 The indemnities in Clauses 10.1 and 10.2 shall not apply to the extent that any claim arises as a result of use of an infringing design supplied or made by the indemnified party, and are subject to the indemnified party:
10.3.1 notifying the indemnifying party promptly on becoming aware of any matter or claim to which the indemnity might relate;
10.3.2 not making any admission or settlement or payment in respect of such matter or claim without the prior written consent of the indemnifying party (such consent not to be unreasonably withheld or delayed); and
10.3.3 allowing the indemnifying party, where appropriate, to appoint legal advisers of its choice and to conduct and/or settle negotiations and/or proceedings relating to such matter or claim and the indemnified party shall comply with the indemnifying party’s reasonable requests in the conduct of any such negotiations and/or proceedings;
10.3.4 promptly passing over all relevant information to the indemnifying party at all time.
10.4 If any claims are made, or in Experian’s reasonable opinion are likely to be made, by any third party alleging that its Intellectual Property Rights are infringed by the Client’s use of the Experian Materials as permitted by the terms of the Agreement, Experian may at its sole option and expense:
10.4.1 procure for the Client the right to continue using the relevant Experian Materials (or any part of them) in accordance with the terms of the Agreement;
10.4.1 modify the relevant Experian Materials to avoid the infringement or replace the relevant Experian Materials with non-infringing materials, whilst still providing the same, or substantially similar, functionality to the infringing materials;
10.4.1 if the options, mentioned in Clauses 10.4.1 and 10.4.2, are not possible or reasonably cannot be required from Experian for example because this would involve disproportionate costs) Experian can terminate the Agreement in whole or partly with immediate effect by registered mail. For as far as the Client has made any payments in advance, a pro rata part of the payment will be restituted, calculated on a straight line basis in relation to any unused portion.
10.5 If Experian exercises one of the options set out in Clause 10.4, it shall have no further liability to the Client in respect of a claim relating to the subject matter of Clause 10.1 from the date of completion by Experian of such option or the date of termination of the Agreement but the Client shall remain protected under the indemnity for the period prior to the date of completion by Experian of such option or termination of the Agreement (as the case shall be).
10.6 This Clause 10 sets out the entire liability of both parties and the sole remedy of both parties with respect to the infringement of a third party’s Intellectual Property Rights and any claims relating to the indemnities given in Clause 10.
11. LIMITS ON LIABILITY
11.1 Experian’s liability to the Client in respect of any claim for breach of contract, negligence, breach of statutory duty or under any indemnity or otherwise shall be limited as follows:
11.1.1 in respect of any claim for personal injury or death caused by Experian’s negligence or that of its employees, agents and/or sub-contractors, no limit shall apply;
11.1.2 in respect of other claims for personal injury or death however caused and claims for the damage to or loss of tangible property (excluding claims for loss or corruption of, or damage to, data contained on any tangible media), liability shall be limited to Euro 1.5 million per claim or series of claims arising from any one incident.
11.2 In respect of any other claim, Experian’s liability to the Client shall be limited as follows:
11.2.1 for all claims arising in the first Contract Year, liability shall be limited in aggregate to the Initial Contract Value;
11.2.2 for all claims arising in any subsequent Contract Year liability shall be limited in aggregate to the fees (excluding VAT) paid by the Client to Experian under the Agreement in the previous Contract Year.
11.3 The limitations in Clause 11.2 shall not apply to the indemnity under Clause 10.1 given by Experian in respect of third party claims made against the Client for infringement of Intellectual Property Rights.
11.3 Experian shall not be liable for any indirect or consequential loss.
11.4 Experian shall not be liable for the following types of financial loss; loss of profits; loss of earnings; loss of business or goodwill; business interruption; even if Experian had notice of the possibility of the Client incurring such losses.
11.5 Experian shall not be liable for the following types of anticipated or incidental losses: loss of anticipated savings; increase in bad debt; loss of sales or revenue; failure to reduce bad debt; reduction in the value of an asset; even if Experian had notice of the possibility of the Client incurring such losses.
11.6 The exonerations contained in this article do not apply in case of any intentional act or willful recklessness [opzet of bewuste roekeloosheid] of Experian or its executive management.
12. PAYMENT AND INVOICING
12.1 Unless stated otherwise in the Agreement, all sums payable by the Client to Experian will be invoiced monthly in arrears. All invoices are payable in cleared funds, without setoff or suspension, within 30 days after the date of the relevant invoice. Experian’s records of the Client’s use of the Services shall be used as the basis for calculation of fees payable by the Client for the Services unless there is evidence of such records being incorrect. Experian shall make such records available to the Client for inspection.
12.2 Unless stated otherwise in the Agreement, all fees specified shall be exclusive of all out of pocket expenses which shall be payable in addition by the Client. On demand Experian shall provide receipts or other reasonable evidence to the Client of all out of pocket expenses.
12.3 If under the Agreement the Client agrees to pay a Minimum Fee over any particular period, and it does not meet such Minimum Fee requirement in that period, Experian shall be entitled to invoice the Client for the difference between the relevant fees actually payable in respect of that period and such Minimum Fee.
12.4 All sums referred to in the Agreement are exclusive of VAT or any other similar sales or turnover tax (if applicable); such taxes shall be payable by the Client to Experian on the same payment terms as apply to the sums to which the taxes relate.
12.5 Any quotations given by Experian during the Term shall remain valid for the period stated in such quotation and if no period is stated then for a period of 28 days from the date of the quotation. Any projections or estimates that are given by Experian (whether in writing or otherwise) are not binding.
12.6 The fees set out in the Agreement will be fixed until increased on the next (and on each subsequent) Price Indexation Date. Any such increase shall not exceed the relevant increase in the Relevant Index over the corresponding period from the last Price Indexation Date.
13.1 Each party undertakes that for the duration of the Agreement and for a period of six months afterwards it will not, without the other party’s prior written consent, directly or indirectly solicit any of the other party’s employees who were in direct contact with the employees of the other party in connection with the Agreement.
14. FORCE MAJEURE
14.1 Neither party will be liable for any delay or failure in the performance of its obligations under the Agreement if such delay or failure is due to an event of Force Majeure.
14.2 If the Force Majeure persists for a period of 28 days or more, the party not claiming Force Majeure may give notice to the other to terminate the Agreement with effect from a date specified in the notice without penalty or other liability (except for any liability on the Client to pay accrued fees).
15. ASSIGNMENT AND CLIENT CONSOLIDATION
15.1 Except as provided in Clause 15.2 neither party may assign, transfer, charge or deal in any other manner with the Agreement or any of its rights under it, or purport to do any of these things, or sub-contract any or all of its obligations under the Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
15.2 Experian shall be entitled to sub-contract any or all of its obligations under the Agreement to a sub-contractor but by doing so Experian shall be responsible for the acts and omissions of the sub-contractor to the same extent as if it had carried out the obligations itself pursuant to the Agreement.
15.3 The Client acknowledges and agrees that in the event that it acquires the business (all or part) of and/or control of and/or merges with any other client (for the purpose of this subclause a "Third Party") of Experian to whom Experian provides its services (such event being for the purpose of this sub-clause defined as a "Takeover Event"), or is itself the subject of a Takeover Event, then any provision of, as the case may be, such agreement that the Third Party Client has with Experian or of the Agreement which relates to applicable fee rates, period of agreement and/or minimum fees payable, remains in effect and will not be prejudiced by the said Takeover Event. If, as a result of a Takeover Event, the extent of any licence granted to the Client increases materially (because, for example, the number of users and/ or the number or the size of activities and/ or businesses that the Services are used for, increases), Experian is entitled to a pro rata increase of the applicable licence fee.
16. TERM; TERMINATION
16.1 The Agreement shall be deemed to have commenced on the Commencement Date and, subject to provisions for early termination as set out in the Agreement, shall continue for the relevant Initial Term and thereafter unless terminated by either party serving on the other not less than the Minimum Notice Period (such Minimum Notice Period not to expire before the end of the Initial Term).
16.2 Either party shall be entitled to terminate the Agreement immediately by written notice to the other party in the following circumstances:
16.2.1 if the other party commits a material breach of any of its obligations under the Agreement, which is not capable of remedy;
16.2.2 if the other party commits a material breach of any of its obligations under the Agreement which is not remedied within 28 days after receipt of a notice from the party not in breach specifying the breach, requiring its remedy and making clear that failure to remedy may result in termination;
16.2.3 if the other party enters into liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or is granted a moratorium (suspension of payments) or if a request is made to achieve any of the foregoing, or if the other party enters into or offers an arrangement with its creditors or takes or suffers any similar action.
16.3 Termination of the Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either party
16.3.1 which have accrued before termination; or
16.3.2 which are intended to continue to have effect beyond termination.
16.4 Upon termination of the Agreement (or the relevant elements of it)
16.4.1 the parties shall each promptly return the Confidential Information of the other party to its owner;
16.4.2 the Client shall, at Experian’s request promptly return to Experian any Experian Equipment in which title has not vested in the Client and either return the Experian Materials, Experian Data and Derivative Output to Experian or destroy such materials and, if destroyed, provide a certificate stating that such materials have been destroyed;
16.4.3 Experian shall promptly return the Client Materials and Client Data to the Client; except where it is necessary to retain such materials or data to exercise any rights granted under the Agreement, which are intended to survive termination of the Agreement.
17. LAW AND JURISDICTION
17.1 All Agreements and all matters arising out of it shall be governed by, and construed in accordance with, the laws of the Netherlands.
17.2 If any disputes arise out of, under, or in connection with any Agreement, the parties agree that such disputes shall be dealt with exclusively by the competent court in The Hague.
18.1 “Additional User” means the persons or organisations as set out in the Agreement to whom Experian supplies the Services and/or the Experian Materials, Experian Data and/or Experian Equipment in addition to the Client.
18.2 “Additional User Rights” means the rights granted to Additional Users in respect of the Services, and/or Experian Materials, Experian Data and/or Experian Equipment as set out in the Agreement.
18.3 “Agreement” means the agreement to which these general terms and conditions apply.
18.4 “Authorised Signatory” means any person or persons authorised according to the registration in the commercial register of the Chamber of Commerce of Industry and the persons, if any, identified in the Agreement.
18.5 “CAIS” means the Credit Account Information Sharing scheme and “CAIS Data” means the data generated through such scheme.
18.6 "Client" means Experian’s opposite party
18.7 "Client Data” means any of the data and/or databases owned by the Client and/or any Additional Users and provided to Experian in connection with the Agreement including information derived from completed applications for credit products but excluding any data supplied to the Client or any Additional Users by Experian.
18.8 “Client Equipment” means any computer hardware, consumables, operating systems, firmware, telecommunications, networking, routing, cabling, electrical or other infrastructure equipment owned, operated or controlled by the Client or an Additional User or by any third party on the Client’s or Additional User’s behalf, that is used in connection with the Services.
18.9 "Client Materials” means any of the items provided to Experian by the Client and/or any Additional Users in connection with the Agreement and includes Client Data.
18.10 “Client Products” means those products set out in the Agreement (and such other products as Experian and the Client may agree from time to time) in respect of which the Services are provided.
18.11 “Commencement Date” means the Commencement Date set out in the Agreement in respect of the Services covered by the Agreement or in the absence of such date then the date that the Agreement is signed by both parties or has been concluded.
18.12 “Confidential Information” means any and all information relating to the trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of the parties and/or to their customers, suppliers, clients or Group Companies in or on any medium or format. For the avoidance of doubt Experian Materials, Experian Data and Derivative Output and the methods, techniques, know how and ideas used or learned by Experian in providing the Services are part of the Confidential Information of Experian.
18.13 "Contract Year” means a twelve calendar month period from the Commencement Date or any anniversary of the Commencement Date.
18.14 “Derivative Output” means data and materials that are derived, prepared or generated pursuant to the Services and includes search footprints and data derived from the Client Materials as amended by Experian in the course of providing the Services but excluding the Client Materials themselves.
18.15 “Documentation” means any or all of the Specification, user documentation, product documentation, technical documentation including guidelines relating to data security and access and/or statements of functionality.
18.16 “Experian” means Experian Nederland B.V.
18.17 “Experian Data” means any of the data and/or databases supplied by Experian to the Client in connection with the Agreement including any such data as the Client may incorporate in its databases (but excluding the Client Data).
18.18 “Experian Equipment” means any equipment and/or computer hardware supplied by Experian to the Client in connection with the Services.
18.19 “Experian Materials” means any of the items developed and/or licensed by Experian to the Client in connection with the Agreement and includes Software, Documentation and Scorecards but excludes Experian Data.
18.20 “Force Majeure” means any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, damage to or failure of any third party’s computer equipment, software or telecommunications systems used to provide the Services or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations.
18.21 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
18.22 “Group Company”
(a) in the case of the Client any company in which the Client shall have direct or indirect ownership of greater than 50% of the voting equities or equivalent of the relevant company, such companies to be classed as Group Companies only for so long as the Client retains such ownership.
(b) in the case of Experian any company controlling, controlled by or in common control with Experian or its English parent company from time to time and “Control” shall mean direct or indirect ownership of 50% or more of the voting equities or equivalent of the relevant company.
18.23 “Initial Contract Value” means the greater of the Minimum Fee (and/or any fixed fees) and the actual amounts due and payable by the Client as specified in the Agreement in the first Contract Year (excluding VAT).
18.24 “Initial Term” means the period specified as such in the Agreement.
18.25 “Intellectual Property Rights” means copyright, database right, patents, registered and unregistered design rights, registered and unregistered trademarks, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same.
18.26 “Live Date” means the date set out in the Agreement or, if none, the date on which the Experian Data and/or Experian Materials or the Services are first available for use in a live operating or production environment other than for the purposes of testing.
18.27 “Minimum Fee” means the minimum fee in respect of any particular part of the Services as set out in the Agreement.
18.28 “Minimum Notice Period” means the minimum period of notice to be served by either party to terminate the Agreement as set out in the Agreement (and if none is specified 12 months).
18.29 “Permitted Purpose” unless otherwise stated in the Agreement means the internal business purposes of the Client and/or any Additional Users (as the case may be) in connection with the Client Products in the Territory and not in any event for the provision of any bureau services to any third parties other than to any Additional Users.
18.30 “Personal Data” [persoonsgegeven(s)] shall have the meaning specified in the GDPR.
18.31 “Price Indexation Date” means the dates set out in the Agreement or, if none, then each anniversary of the Commencement Date.
18.32 “Processing” [verwerking van persoonsgegevens] shall have the meaning specified in the GDPR.
18.33 “Project Timetable” means any timetable expressly set out or referred to in the Agreement or otherwise agreed between the parties from time to time.
18.34 “Relevant Index” means the consumer price index for all households [CPI alle huishoudens] published by the Dutch Central Statistical Office [Centraal Bureau voor de Statistiek] or any replacement index.
18.35 “Scorecard” means a statistical formula derived to aid decision making and any supporting material in relation to such formulae.
18.36 “Services” means the services as specified in the Agreement and all other services supplied by Experian to the Client under or in connection with the Agreement and shall include the provision and grant of licences in respect of any Experian Data and/or Experian Materials.
18.37 “Specification” means any part of the Agreement, or any document referred to therein, that sets out details of the agreed functionality to be provided by any Experian Materials or a detailed description of the Services.
18.38 “Software” means the computer software designs and programs as supplied and/or developed by Experian and as described in the Documentation.
18.39 “Term” means the duration of the Agreement as determined in accordance with Clause 16.
18.40 “Territory” means the Netherlands or such other territory as is specified in the Agreement.
18.41 “VAT” means Value Added Tax [BTW].