Terms & Conditions
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INTERPRETATION
In these Terms and Conditions and the Order Confirmation, and save where the context otherwise requires, the words and phrases below shall have the following meaning
“Additional Responses” any Responses obtained by AURA MEDIA GROUP LIMITED which exceed the Order Quantity.
“Buyer” the lead purchaser of the Data and the party to these Terms and Conditions and the Order confirmation.
“Core Questions”the lifestyle questions to be formulated by AURA MEDIA GROUP LIMITED and included in the Survey, details of which are available on request.
“Data” being the data contained in the Responses provided by AURA MEDIA GROUP LIMITED to the Buyer as ordered by the Buyer pursuant to an Order Confirmation or as otherwise provided in accordance with these Terms and Conditions.
“AURA MEDIA GROUP LIMITED”c/o RSZ Accountancy Limited, Archdeacons House, Ipswich, Suffolk, IP1 3BX a company incorporated and existing under the laws of England and Wales with the company registration number 11239047.
“End Users” being those persons specified on an Order Confirmation as “End Users” and to whom the Buyer may grant a sub-license to use the Data in accordance with clause 4.
“Fee” the fee payable by the Buyer to AURA MEDIA GROUP LIMITED for the service and license to be provided by AURA MEDIA GROUP LIMITED here under and calculated in accordance with the Order Confirmation.
“Responses” being one data record to be provided by AURA MEDIA GROUP LIMITED to the Buyer containing a consumer’s response to the Product Questions together with the relevant consumer’s name, postal address and / or telephone number and/or other information as specified in the Order Confirmation as maintained by or on behalf of AURA MEDIA GROUP LIMITED.
“Order Confirmation” AURA MEDIA GROUP LIMITED’s Order Confirmation signed by the Buyer to which these conditions are annexed. “Order Quantity” the number of Responses requested by the Buyer in the Order Confirmation.
“Product Questions” the question(s) to be included in the Survey in relation to the Buyer’s product category and or sub- category and or question criteria specified in the Order Confirmation.
“Survey” the Survey to be compiled and executed by or in conjunction with AURA MEDIA GROUP LIMITED which will contain the Product Questions and the Core Questions.
1. Each Order Confirmation agreed between AURA MEDIA GROUP LIMITED and the Buyer shall be governed by these Terms and Conditions provided that in the event if there is any inconsistency between the terms set out in an Order Confirmation and these Terms and Conditions, the provisions as set out in the Order Confirmation shall prevail.
2. AURA MEDIA GROUP LIMITED reserves the right at any time prior to the delivery of the Data (or part thereof) to cancel any Order Confirmation without incurring any liability other than liability which may not by applicable law be excluded or limited, in which event no part of the Fee shall be payable by the Buyer.
3. The Buyer acknowledges that AURA MEDIA GROUP LIMITED has the right in its sole discretion to amend the wording of the Core Questions, Product Question(s) and contents of the Survey at any time.
4. In consideration for and subject to the payment of, the Fee, AURA MEDIA GROUP LIMITED hereby grants to the Buyer a license to use the Data subject to these Terms and Conditions and, in particular, the provisions of this clause.
5. The Buyer shall have the right to use, but not copy, alter, manipulate, adapt or license others to use, that part of the Data on one specific direct marketing campaign for a maximum period of twenty eight (28) days from the date of delivery of the Data to the Buyer or for such other period as may be stated from time to time in an Order.
6. Where explicitly stated in an Order Confirmation, the Buyer may grant a license to use the Data to such number of End Users as is expressly set out in an Order Confirmation as per these Terms and Conditions and provided that where the Buyer licenses the use of the Data to an End User the Buyer warrants to AURA MEDIA GROUP LIMITED that each relevant End User:
6.1. shall not copy, alter, manipulate or adapt the Data;
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6.2. shall not license (or purport to) to third parties the use of such Data;
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6.3. shall use the Data only in respect of one specific direct marketing campaign for a maximum period of twenty eight (28) days from the date of delivery of the Data to the Buyer or for such other period as may be stated from time to time in an Order
7. AURA MEDIA GROUP LIMITED shall have the right to analyse the Data and formulate conclusions from such analysis and extract information from the Data and shall be entitled to use such information (including information comprising such conclusions) at its sole discretion including, but not limited to, by way granting licenses to third parties and provided that nothing herein shall permit AURA MEDIA GROUP LIMITED to reveal to any third party the replies to any Product Questions that related exclusively to the business of the buyer.
8. The Buyer’s right to use that part of the Data which is derived from responses to the Product Questions shall be non-exclusive.
9. AURA MEDIA GROUP LIMITED will deliver the Data to the Buyer in the format specified in the Order Confirmation
9.1. In the event that any delivery date or time shall be agreed between AURA MEDIA GROUP LIMITED and the Buyer in the Order Confirmation, the Buyer acknowledges that such date or time shall be indicative only and that AURA MEDIA GROUP LIMITED shall not be liable for any loss or damage suffered by the Buyer as a result of late delivery of the Data. Furthermore, AURA MEDIA GROUP LIMITED reserves the right to supply the Data in instalments on varying dates
10. AURA MEDIA GROUP LIMITED does not undertake the Surveys itself but confirms that it will use all reasonable endeavours to procure that the relevant service providers used by AURA MEDIA GROUP LIMITED to undertake the Surveys do so in accordance with all applicable laws and good industry practice.
11. AURA MEDIA GROUP LIMITED shall use reasonable endeavours to keep confidential that part of the Data which consists of the Product Questions.
12. In the event of any complaints or disputes concerning the Data supplied, the Buyer may request the investigation be carried out provided the following conditions have been met:
12.1.the Buyer or relevant End User, must have made verbal contact with 25% or more of the lead consumers named in relevant Responses making up the Data set;
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12.2.the request for an investigation must have been submitted to AURA MEDIA GROUP LIMITED within 7 days of the date of delivery of the relevant Data set; and
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12.3.the Buyer must have submitted a completed Investigation Form (a pro forma copy of which is annexed to these Terms and Conditions).
13. On the Buyer having requested an investigation (and having met the conditions set out in clause 12.1), AURA MEDIA GROUP LIMITED:
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13.1.will randomly select a Response from the Data set;
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13.2.will test that Response and the next 29 Responses next following alphabetically (based on the consumers surname) within that Data
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13.3.AURA MEDIA GROUP LIMITED will check the consumer’s name, address, the questions being asked word for word, the response from the consumer and will check if the voice file has been tampered with;
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13.4.Within 5 business days of the investigation having been validly requested, AURA MEDIA GROUP LIMITED will report to the Buyer on its findings and will provide a recording of (i) the opening survey question asked to the consumer (ii) the question asked before the particular question(s) being investigated, (iii) the question(s) being investigated and (iii) the question being asked after the question(s) being
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13.5.If as a result of AURA MEDIA GROUP LIMITED’s investigation it is found that 10% or more of the Responses provided as part of the Data set contain an error, AURA MEDIA GROUP LIMITED will run the relevant Survey again and replace the relevant Data set that has been provided with new Responses at no extra cost (for the avoidance of doubt where the Data has been provided in instalments the investigation and replacement of Data shall apply only to the Data supplied in that instalment and not previous or subsequent instalments);
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13.6.If an investigation of the replacement Data is triggered and it is found that again more than 10% of the relevant Responses contain an error, AURA MEDIA GROUP LIMITED will discuss an acceptable refund amount for any monies already paid or to be paid by the Buyer to AURA MEDIA GROUP LIMITED in respect of that Data.
14. The Buyer shall and undertakes to procure that relevant End User shall use the Data:
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14.1.solely for its internal business purposes;
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14.2.as a source of reference for its circulation by mail or by telephone or electronic mail to some of or all of the individuals listed in the data.
15. The Buyer agrees with and warrants to AURA MEDIA GROUP LIMITED that any documents or other items mailed by or on behalf of the Buyer as a result of or following its use of Data will at all times comply with the current British Code of Advertising Practice, the British Code of Sales Promotion Practice and the ICSTIS Code and will contain nothing which infringes copyright or any other right of any third party or is defamatory, obscene, indecent or otherwise illegal or unlawful whether or not such a claim is justified or The Buyer further agrees and warrants that it will upon request by AURA MEDIA GROUP LIMITED forthwith supply to AURA MEDIA GROUP LIMITED copies of any such documents or other items.
16. In the event that any recipient of any documents or other items mailed by the Buyer objects to such contact or requests that it ceases or asks for his or its name to be removed from any list the Buyer shall procure that such activity ceases forthwith and shall inform AURA MEDIA GROUP LIMITED within 48 hours.
17. The Buyer hereby undertakes to AURA MEDIA GROUP LIMITED that it will deliver to AURA MEDIA GROUP LIMITED any notice or other communication in respect of the Data received from the Information Commissioner on its receipt thereof
18. The Buyer undertakes to AURA MEDIA GROUP LIMITED that it will at all times comply with the provisions of the Data Protection Act 2018 and GDPR (or equivalent national data protection regulation) in respect of its use and storage of the Data
19. The Buyer shall allow AURA MEDIA GROUP LIMITED to include in the Data a small percentage of seed and dummy data subject details for control
20. The Buyer and its employees and agents shall keep confidential all information concerning the business of AURA MEDIA GROUP LIMITED that it has obtained or received as a result of the performance of this
21. The Buyer undertakes to provide AURA MEDIA GROUP LIMITED with any notices it receives relating to any breach of the provisions and the Buyer agrees to indemnify and hold AURA MEDIA GROUP LIMITED harmless in respect of any losses and costs (including reasonable legal costs) it might sustain as a result
22. In the case of regulated and or licensed market sectors, Buyer and each End User confirms that Buyer is covered by and adheres to regulations and licenses set out for said market sectors and therefore allows and covers AURA MEDIA GROUP LIMITED as a legal representative of Buyer to perform the duties as set out in Order Confirmation. In the case of any financial loss to AURA MEDIA GROUP LIMITED resulting from performing the duties as set out within the Order Confirmation in a regulated and or licensed market sector, Buyer agrees to fully indemnify and pay all such losses in full to AURA MEDIA GROUP LIMITED
23. The Buyer agrees that AURA MEDIA GROUP LIMITED may change age groups given in the survey to fit the Buyer’s specific age groups where necessary.
24. The property and the copyright and database rights (and all other intellectual property rights) in the Data, the Survey, the Core Questions and the Product Questions shall at all times remain reserved or vested in AURA MEDIA GROUP LIMITED and AURA MEDIA GROUP LIMITED reserves the right to grant licenses in respect of the Data and supply the same to any other party.
25. In the event of the Buyer being aware of any unauthorised use of any part of the Data, Buyer must notify AURA MEDIA GROUP LIMITED in writing
26. The Fee payable in respect of each Order Confirmation shall be set out in the relevant Order
27. Payment of the fee specified in this document and in our corresponding invoice, irrevocably indicates your understanding and acceptance of these terms and conditions upon behalf of your organisation.
28. Unless otherwise stated, the Fee quoted in the Order Confirmation is exclusive of VAT (which will be charged at the prevailing rate).
29. In the event that the Order Confirmation does not set out the relevant fee payable by the Buyer, the Fee will be calculated by reference to the quantity of Data supplied at the standard rates charged by AURA MEDIA GROUP LIMITED.
30. In the event that AURA MEDIA GROUP LIMITED agrees to supply the Data for the purpose of de-duplication against other data held by the Buyer and on the basis that the Buyer shall only pay a proportion of the price reflecting the net names actually used (“Net Names Agreement”) any claim for credit for the unused proportion of Data.
30.1.must be made within a period not exceeding 14 days from the date of delivery unless otherwise agreed in writing by AURA MEDIA GROUP LIMITED ; and
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30.2.must be supported by a written de-duplication report or certificate from a recognised data processing bureau or other independent agency approved in writing by AURA MEDIA GROUP LIMITED.
31. In the event that AURA MEDIA GROUP LIMITED obtains Additional Responses:
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31.1.AURA MEDIA GROUP LIMITED shall be entitled to deliver and charge the Buyer for such Additional Responses up to 10% above the Order AURA MEDIA GROUP LIMITED will not deliver any more that 10% as an oversupply and thus will not charge for any Response that may be delivered over the 10% oversupply. By way of example, where the Order Quantity specified in an Order Confirmation is for 1000 Reponses and the calling team makes 1067 calls then 1067 Reponses will be delivered and charged for.
32. AURA MEDIA GROUP LIMITED reserves the right to charge interest of any sum not paid on a due date for payment at the rate of 2.5% per month above the prevailing Barclays Bank Base Rate, such interest to accrue daily on the unpaid sum from the due date for payment until the date of actual payment (after as well as before judgment).
33. Nothing in these Terms and Conditions shall be construed as limiting AURA MEDIA GROUP LIMITED’s liability for death or personal injury caused by its negligence or liability arising as a result of fraud or fraudulent
34. The Buyer acknowledges with respect to the Data and related licenses to use such Data provided under these Terms and Conditions and any related Order Confirmation, that the Buyer’s sole recourse against AURA MEDIA GROUP LIMITED with respect to the supply and license and use of such Data shall be under the investigation and dispute resolution procedure set out in clause Otherwise, AURA MEDIA GROUP LIMITED shall not be liable for any losses, liabilities, costs or expenses suffered by the Buyer, any End User or any third party arising from the supply, license or use of such Data.
35. AURA MEDIA GROUP LIMITED shall not be liable whether in tort (including for negligence or breach of statutory duty) contract, misrepresentation or otherwise for any loss of profits, loss of business, depletion in goodwill, loss of anticipated savings, loss of contract, loss of use, loss or corruption of data or information in each case whether direct or indirect or for any special, indirect, consequential or pure economic loss, costs, damages charges of expenses of the Buyer or any End
36. In any event, AURA MEDIA GROUP LIMITED’s total aggregate liability arising out of or in connection with the performance or contemplated performance of its obligations under these Terms and Conditions and any Order Confirmation shall be limited in respect of all claims to the amount of Fees actually received by AURA MEDIA GROUP LIMITED from the Buyer in the previous 12 month period.
37. The Buyer agrees to indemnify and hold AURA MEDIA GROUP LIMITED harmless from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defence costs and legal fees arising from any claims made by an End User in connection with the Data and license thereof or otherwise relating to the performance by AURA MEDIA GROUP LIMITED of its obligations under these Terms and Conditions or any Order Confirmation.
38. The Buyer acknowledges:
38.1.that AURA MEDIA GROUP LIMITED has no responsibility for and gives no warranty or representation as to the performance of the Data or the rate at which it converts into actual or eventual sales or payment activity; and
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38.2.any data description including the words “first”, “second” or “third” etc. usage data relates to the number of times AURA MEDIA GROUP LIMITED has sold the data. It cannot denote the preclusion of any other or prior distribution of the same or similar data by the data subject itself over which AURA MEDIA GROUP LIMITED has and can have no control.
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38.3.AURA MEDIA GROUP LIMITED does not warrant that the Data is accurate or complete or that any information contained therein is accurate or complete.
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38.4.the employees and agents of AURA MEDIA GROUP LIMITED are not authorised to make oral or written representations concerning any Data Order
39. The Buyer shall not institute proceedings for damages for breach of these Terms and Conditions or arising from any Order Confirmation after the expiration of one year from the date on which the Buyer became aware of the same or the date on which it ought reasonably to have become aware of the same.
40. AURA MEDIA GROUP LIMITED may terminate any and all Order Confirmations forthwith on giving written notice to the Buyer if:
40.1.the Buyer commits a serious breach of these Terms and Conditions and in the event of the breach being capable of being remedied shall have failed to remedy the breach within fourteen days after the receipt of a request in writing from AURA MEDIA GROUP LIMITED to do so; or
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40.2.if the Buyer is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution, or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any jurisdiction.
41. In the event of any termination of any Order Confirmation (irrespective of the reasons) the Buyer shall forthwith return any Data already delivered (including all copies) together with all other information which the Buyer or any End User might hold on or have received from AURA MEDIA GROUP LIMITED and confirm in writing that it has done Termination of an Order Confirmation shall not affect the accrued rights or liabilities of either party.
42. Each execution within a series will be treated as a separate order for execution in respect of
43. Requests for cancellation of any Order Confirmation by the Buyer must be made in writing stating all reasons for cancellation and must be received by AURA MEDIA GROUP LIMITED at least 1 month prior to the date on which AURA MEDIA GROUP LIMITED is due to begin the execution of the relevant AURA MEDIA GROUP LIMITED may refuse any request for cancellation of an Order Confirmation which does meet these criteria. AURA MEDIA GROUP LIMITED may refuse any cancellation of Order Confirmation where such confirmation forms part of a series of orders which have been agreed between AURA MEDIA GROUP LIMITED and the Buyer.
44. The Buyer may not assign its rights under any Order Confirmation or these Terms and Conditions without the consent of AURA MEDIA GROUP LIMITED
45. AURA MEDIA GROUP LIMITED shall have the right to sub-contract any of its duties and obligations under these Terms and Conditions and any Order
45.1.In the event that AURA MEDIA GROUP LIMITED has sub-contracted any of its duties and obligations such as data supply or Survey services, the Buyer shall not be liable for a refund or resupply of data prior to AURA MEDIA GROUP LIMITED receiving the same from the subcontractor
46. The rights of AURA MEDIA GROUP LIMITED shall not be prejudiced or restricted by any indulgence or forbearance extended by AURA MEDIA GROUP LIMITED to the Buyer and no waiver by AURA MEDIA GROUP LIMITED in respect of any breach shall operate as a waiver in respect of any subsequent breach.
47. Any notices given under the Agreement shall be in writing and shall be sent by registered post or recorded delivery service addressed in the case of a notice to AURA MEDIA GROUP LIMITED to AURA MEDIA GROUP LIMITED’s Registered Office and in the case of a notice to the Buyer to the address of the Buyer or its representative or agent shown in Order Confirmation. Notices may also be served by email or facsimile provided proof of sending is given. Any Notice that is given shall be deemed served if by post forty eight hours after posting and if by email or facsimile when dispatched.
48. These Terms and Conditions shall be governed by and construed in all respects in accordance with English law and the Courts of England and Wales shall be the sole courts of jurisdiction