TPS Corporate Site

DATED:

PARTIES:

(1)

THE TELEPHONE PREFERENCE SERVICE LTD (TPS) at 70 Margaret Street, London W1W 8SS ("Licensor")

(2)

_____________________________________________________

_____________________________________________________

_____________________________________________________

whose registered office is at
_______________________________________________________

("Licensee")

RECITALS

(A)

The Licensor manages the TPS Suppression File but has assigned to OFCOM all property rights including copyright and other rights of a like nature whether in the United Kingdom or worldwide in the TPS Suppression File

(B)

The Licensee wishes to receive a licence in relation to those rights on the terms and conditions of this agreement in order to Use the information contained in the TPS Suppression File.

OPERATIVE PROVISIONS

Definitions

1.1

In this licence the following words and expressions shall have the following meanings:

"Direct Marketing"
Any reference to direct marketing is a reference to the communication of any advertising or marketing material on a particular line.

"Direct Marketing Calls"
Any call using voice telephony for the purpose of any advertising or marketing material on a particular line (other than automated calling systems)

"File Update"
any update of the TPS Suppression File prepared by the Licensor including but not limited to a Revised File.

"Individuals"
Under the Regulations "individuals" means consumers, sole traders and (except in Scotland) partnerships.

"Licensee"
The company or organisation applying for a Licence, including its subsidiary companies, holding companies or fellow subsidiary companies if required.

"Licence Subscription Fee"
the fee to be paid for usage of the TPS Suppression file.

"TPS Suppression File"
a computer file of telephone numbers of individuals registered with the Licensor in relation to Direct Marketing Telephone Calls;

"Revised File"
a revised version of the then current TPS Suppression File prepared by the Licensor as a replacement for that file;

"Use"
the use of the TPS Suppression File by the Licensee for its own purposes and/or for screening lists on behalf of third parties ('Third Party Cleaning') subject always to

i) the TPS Suppression File being used for the purposes only of suppressing telephone numbers registered with the Licensor from the lists of telephone numbers of individuals, which the Licensee or the third party as the case may be uses for making direct marketing calls, and

ii) in the case of Third Party Cleaning only, a payment by the Licensee, in addition to the Licence Subscription Fee, of a Royalty Fee calculated at a rate determined by the Licensor from time to time ("The Notified Rate") per thousand numbers screened by the Licensee on behalf of third parties.

"Royalty Fee"
Royalty Fee is defined as the amount calculated at the notified rate per thousand numbers screened on behalf of third parties during the year but only to the extent that such amount exceeds the Licence Subscription Fee for that year, such Royalty Fee to be paid to the Licensor annually within 30 days of each anniversary of the date hereof.

1.2

Reference to any enactment shall be construed as extending to any amendment or re-enactment and to any previous enactment which is consolidated in that enactment (as amended or re-enacted) and to any regulation or order made under any of them.

1.3

Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.

Grant of licence and provision of service

2.1

The Licensor in consideration of the prior payment by the Licensee from time to time of the Licence Subscription fee in accordance with clause 3 below hereby:-

2.1.1

grants to the Licensee a non-exclusive licence to Use the TPS Suppression File in the form of electronic media or in a selection of other media made available by the Licensor from time to time.

2.1.2

undertakes to provide to the Licensee all File Updates which shall be delivered to the Licensee upon the terms and conditions of this licence in such form as may be made available by the Licensor from time to time.

Licensee undertakings

3.1

The Licensee shall at all times:

3.1.1

use the TPS Suppression File only for the purposes of the Use and for no other purpose whatsoever;

3.1.2

ensure that where a File Update is provided in the form of a Revised File, it shall destroy all data held on the TPS Suppression File replaced by the Revised File;

3.1.3

ensure that it complies with the Data Protection Act 1984 and successor legislation and with the Privacy and electronic Communications (EC Directive) Regulations 2003 and successor regulations and that it shall process all data held on the TPS Suppression File in accordance with the Data Protection Act 1984 and successor legislation and the above Regulations and successor regulations.

3.1.4

maintain an in-house "do-not-call" list of individuals who have requested not to receive from the Licensee direct marketing calls by telephone of a kind described in Regulation 21 of The Privacy and electronic Communications (EC Directive) Regulations 2003 and circulate the list to all persons who make such telephone calls for or on behalf of the Licensee.

3.1.5

ensure compliance, as appropriate, with the relevant regulations, codes of practice and guidelines in force from time to time;

3.1.6

permit the Licensor, in the event of a breach of any of the above undertakings by the Licensee, to issue a public statement to that effect;

Confidential Information

4.1

The Licensee acknowledges that the TPS Suppression File contains confidential information of the Licensor and all copyright, trade marks and other intellectual property rights in the TPS Suppression File are the exclusive property of OFCOM.

4.2

Except insofar as required for the Use of the TPS Suppression File, the Licensee shall not:-

4.2.1

copy the whole or any part of the TPS Suppression File;

4.2.2

modify, merge or combine any part of the TPS Suppression File with any other list which the Licensee may have; or

4.2.3

assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the TPS Suppression File or any version of it nor use on behalf of or make available the same to any third party.

4.3

The Licensee shall:

4.3.1

keep confidential the TPS Suppression File and limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the Use of the TPS Suppression File;

4.3.2

maintain an up to date written record of the Use of the TPS Suppression File and upon request forthwith produce such records to the Licensor; and

4.3.3

without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of the Licensor in the TPS Suppression File as assigned OFCOM.

4.4

The Licensee shall inform all relevant employees, agents and sub-contractors that the TPS Suppression File constitutes confidential information of the Licensor and that all intellectual property rights in the TPS Suppression File are the property of the Licensor as assigned to OFCOM. The Licensee shall take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 4.

Limitation on Licensor's Liability

5.1

The Licensee acknowledges that the Licensor administers the TPS Suppression File under an agreement with OFCOM to provide a service to the Licensee at subscription fees which have been calculated on the basis that the Licensor will not, subject to clause 5.2 below, bear any loss that the Licensee may suffer in connection with the Use of the TPS Suppression File and/or the File Update.

5.2

THE LICENSOR'S LIABILITY TO THE LICENSEE FOR ANY LOSS OR DAMAGE OF WHATSOEVER NATURE SUFFERED OR INCURRED BY THE LICENSEE OR FOR ANY LIABILITY OF THE LICENSEE TO ANY OTHER PERSON FOR ANY LOSS OR DAMAGE OF WHATSOEVER NATURE SUFFERED OR INCURRED BY THAT PERSON (WHETHER ARISING UNDER THIS LICENCE OR OTHERWISE) SHALL TO THE EXTENT PERMITTED BY LAW, NOT EXCEED AN AMOUNT EQUAL TO THE LICENCE SUBSCRIPTION FEE PAID BY THE LICENSEE. ALL CONDITIONS, WARRANTIES, TERMS AND REPRESENTATIONS AND STATEMENTS WHATSOEVER WHETHER EXPRESS OR IMPLIED BY STATUTE, CUSTOM, USAGE OR OTHERWISE ARE HEREBY EXCLUDED SO FAR AS MAY BE ALLOWED AT LAW.

Termination

6.1.

The Licensor shall be entitled to terminate this licence forthwith:

6.1.1

if the Licensee fails to pay any sums due hereunder on the due date for payment;

6.1.2

if in the reasonable opinion of the Licensor, or the Information Commissioner Registrar as the case may be, the Licensee has failed to comply with the terms of this licence;

6.2

The Licensee shall deliver up to the Licensor all copies of the TPS Suppression File in its possession together with all File Updates immediately upon the termination of this licence for whatever reason.

Assignment

7.1

The Licensee agrees that the Licensor may assign the Licence Agreement to OFCOM or a successor supplier , in the event that the Licensor no longer manages the TPS Suppression File

Law

8.1

This agreement shall be governed by and construed in accordance with English law and the parties shall submit to the exclusive jurisdiction of the English Courts.

SIGNED by

_______________________________________________________
for and on behalf of
THE TELEPHONE PREFERENCE SERVICE LTD

SIGNED by

_______________________________________________________

for and on behalf of

_______________________________________________________ TPS/Licenc1August1999

REVISION TO TPS LICENCE AND FEE STRUCTURE

April 2000

Why introduce a Royalty Fee?

TPS wants to spread the cost of managing the service as wide as possible, so that it can be in a position to reduce the licence fee for all. In line with common direct marketing practice it has been decided to charge a Royalty Fee on lists screened, so that all those companies who are benefiting directly or indirectly from the file will contribute to the cost of managing the Service.

How much is the Fee?

£2 per 1000 numbers screened.

How will the Royalty Fee be collected?

You will declare the volume of numbers screened at the end of your annual licence period and submit a self assessment certificate and/or a self billing invoice with payment to TPS.

I only use the TPS file to screen my company's own data, will I have to pay a Royalty Fee?

No, the Royalty fee does not apply to cleaning your own data.

I offer a service to screen listings of third parties. Will I have to pay a Royalty Fee?

Subject to the volume of data cleaned, yes. The licence fee is in effect an advance Royalty Fee; if for example you are a subscriber paying the full licence fee of £7,500 you will only start to pay the Royalty Fee of £2 per 1000 numbers screened once you have screened 3,750,000 numbers.

I screen small quantities of lists for third parties. Do I have to pay the Royalty Fee?

The licence fee is in effect an advance Royalty Fee, so for instance if you are a subscriber paying the full licence fee of £7,500 you will only need to pay an additional Royalty Fee on numbers screened in excess of 3,750,000 numbers.

I use the TPS file to screen my lists which I rent to my clients. Do I have to pay the Royalty Fee on this activity?

No, you do not pay the Royalty Fee if you are screening your own lists.

Does the royalty fee apply to call centres?

Yes, if you are screening lists for your clients. If your clients are providing you with lists that have already been screened against the TPS file the royalty fee is not applicable.

I have a few major clients for whom I undertake a list screening service. The list screening activity would come to more than the cost of the annual licence for each of my clients. Do I have to pay the £2 per 1000 Royalty Fee?

We do not expect any of your clients to pay more than the cost of the annual licence fee. In cases such as this the royalty Fee will be capped at £7,500 per client.

I clean the same list for my clients every 28 days. Is the royalty fee payable each time?

The Royalty Fee is payable on the full list the first time it is cleaned, thereafter it is payable on additional records to the list.

My client is a subscriber to the TPS and pays £7,500. However, they do not clean their lists in-house, they use our computer bureau services. Do they have to pay royalties as well as paying a licence fee?

No, companies operating in this way will not pay more than the current licence fee - £7,500. No company will ever pay more than the full current licence fee to TPS.

I offer a list screening service via the internet or by premium rate telephone number. Does the Royalty Fee apply?

Yes, it applies after the services have screened 3,750,000 numbers. (This assumes you pay a licence fee of £7,500.)

I offer a service whereby clients' calls are automatically screened against the TPS if the number dialled is on the TPS file. Do I have to pay a Royalty Fee?

Yes, a Royalty Fee is payable equivalent to the £2 per 1000 fee. Contact the TPS office for further information.

Which file is the Royalty Fee calculated on, the TPS file or my client's file?

The Royalty Fee payment is based on the size of your client's file.

Should I keep evidence of the volumes of data screened?

Yes, reasonable records should be kept so you can make a declaration on the volume of data screened to TPS at the end of the year. You will be keeping records anyway for your clients so it should not be too much of an added burden.

Does the Royalty Fee apply to the FPS?

No, currently it just applies to the TPS.