If you request tracing services online we will send a written version of these terms and conditions (the “Contract”) which confirms your instructions to us and sets out our charges.
1 DURATION
Subject to the provisions for earlier termination set out below, this Agreement will come into effect on the date that you sign and return the Contract and will continue until we have provided the Services.
2 SERVICES
2.1 In this Agreement “Services” shall mean the identification of such persons or assets or documents or combination thereof as are set out in the Schedule to the Contract.
2.2 The Services will not include obtaining:
2.2.1 adoption certificates dated prior to 1927;
2.2.2 certificates of birth, marriage or death dated prior to 1837;
2.2.3 decrees absolute dated prior to 1857; and
2.2.4 wills or grants of representation dated prior to 1858.
2.3 We will use reasonable skill and care in the provision of the Services. However, you acknowledge and agree that it is possible that in some cases the Services will be inconclusive.
3 CHARGES AND PAYMENT
Our charges for the Services will be set out in the Contract. Any advance indication provided to you of our likely Charges is an estimate only.
3.1 In consideration of the provision of the Services, you shall pay us the Charges. You shall also pay us, in addition to our Charges, our out-of-pocket expenses incurred in providing the Services and any other sums due under this Agreement.
3.2 All Charges and any other sums due under this Agreement are exclusive of value added, sales and similar taxes of any kind, which shall be paid by you.
3.3 If, as a result of any act or omission by you or your agents (howsoever caused) which is not directly and wholly caused by us (including without limitation the provision of any incorrect or inadequate information or data by you), we are prevented or delayed from performing any of our obligations under this Agreement or the cost of such performance increases, then we may recover all other reasonable costs, loss or damage from you which we sustain as a direct result of such act or omission.
3.4 The Charges shall be invoiced monthly and shall be paid by you within 30 days of the date of the relevant invoice. Save where any invoices are the subject of a bona fide dispute, if full payment of any invoice is not made by the due date, we shall, without prejudice to any other remedies, have the right to suspend work under any other agreements with you until such invoice is paid.
3.5 If full payment of any invoice is not made on the due date then interest shall thereafter be payable on the outstanding balance at the rate of 4% above the Barclays Bank base rate from time to time in force (or such other bank as we may from time to time specify) until payment.
3.6 If you are required to make any withholding or other deduction on account of any tax, you shall pay to us such additional amounts as shall result in us receiving the full amount of the Charges which we would have received had no withholding or deduction been required or made.
4 COPYRIGHT
We will own all copyright in materials created by us in the course of providing the Services. You may only reproduce or distribute our copyright work in direct connection with the purposes for which you have requested our Services and no other use of our copyright work may be made without our prior written consent.
5 DATA PROTECTION
5.1 In this Agreement “Personal Data” means such Personal Data (as defined in the Data Protection Act 1988) of or provided by you as we may hold in the performance of the Services and in relation to Personal Data, “processing” has the same meaning as in that Act.
5.2 Each Party warrants that it is properly notified under the Data Protection Act 1998 to the extent required for the processing of Personal Data required in the performance of this Agreement.
5.3 Each Party agrees to comply with its obligations under the Data Protection Act 1998 and any directions issued by the Information Commissioner in its processing of Personal Data.
6 LIABILITY
6.1 Nothing in this Agreement shall limit our liability to you for death or personal injury resulting from our negligence or for fraudulent misrepresentation or for any liability which cannot be excluded by law.
6.2 Subject to Clause 6.1, the following provisions set out the limitations on our liability (including any liability for the acts and omissions of our employees, agents and sub-contractors) to you with respect to:
6.2.1 any breach of our contractual obligations in this Agreement; and
6.2.2 any representation, statement, act or omission given, made or carried out under or in connection with this Agreement (whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever).
6.3 It is your responsibility to ensure that the Services are suitable for your needs. In particular, we expressly disclaim all warranties of satisfactory quality or fitness for a particular purpose and all warranties that:
6.3.1 the Services or any part of them will be error-free; and
6.3.2 information and materials located or obtained through use of the Services are timely, accurate, relevant or complete.
You acknowledge that you have considered taking out appropriate insurance cover.
6.4 Except as expressly set forth in this Agreement, all conditions warranties and representations expressed or implied by statute common law or otherwise with respect to the Services are excluded to the fullest extent permitted by law and in no event shall we be liable for any negligence or tortious loss or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not we are advised of the possibility of loss, liability, damage or expense):
6.4.1 loss of revenue or actual or anticipated profits (including for loss of profits on contracts);
6.4.2 loss of the use of money or loss of anticipated savings;
6.4.3 loss of business or loss of opportunity;
6.4.4 loss of goodwill or reputation;
6.4.5 loss of, damage to or corruption of data; or
6.4.6 any indirect or consequential loss or damage howsoever caused.
6.5 Except as stated in Clause 6.1, our aggregate liability to you with respect to all claims under or in connection with this Agreement shall be limited to damages not exceeding 125% of the Charges paid by you hereunder in respect of each claim or series of claims arising out of the act or series of acts which gave rise to liability.
6.6 Unless waived in writing by us, no claim, regardless of form, arising out of or pertaining to this Agreement may be brought by you unless you have provided us with written notice of the claim within 90 days of the date on which you first became aware or could reasonably have been expected to become aware of the cause of action.
6.7 The Parties hereby expressly acknowledge and agree that having taken independent legal advice, the limitations upon our liability in this Clause 6 are in all respects fair and reasonable, reflect a duly considered allocation of risk between you and us and are reflected in the Charges paid under this Agreement.
7 TERMINATION
7.1 This Agreement may be terminated immediately by either Party on written notice, if the other is in material breach of a material obligation under this Agreement and in the case of any breach capable of remedy has failed to remedy the breach within a period of 30 days after receipt of written notice to do so.
7.2 Termination or expiry of this Agreement for any reason, whether under this Clause 7 or not, shall be without prejudice to the accrued rights and liabilities of either Party on the date of such termination or expiry.
7.3 For the purposes of Clauses 7.1 and 7.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
8 ANNOUNCEMENTS
Each Party agrees to keep confidential the terms of this Agreement, except that any announcement may be made in relation to the existence of this Agreement including reference to the name, trade mark or trade name of either Party; and we may also publicise details of the Services without disclosing any Personal Data.
9 GENERAL
9.1 We may sub-contract the performance any of the obligations undertaken by us to any other person or company.
9.2 Force Majeure
9.2.1 We will not be liable to you for any delay or non-performance of our obligations in this Agreement to the extent that our performance is interrupted or prevented by any act, event, omission or cause or circumstance whatsoever beyond our reasonable control including, without limitation, acts of terrorism; an act of any government or authority (including refusal or revocation of any licence or consent); fire, explosion, flood, bad weather; power failure, failure of telecommunication lines, failure or breakdown of machinery or vehicles; default of sub-contractors; and theft, malicious damage, strike, lock-out or industrial action of any kind.
9.2.2 Such delay or failure shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay persists for 90 days or more, you may terminate this Agreement by giving 14 days written notice to us.
9.3 Waivers and Remedies
9.3.1 Except as otherwise stated in this Agreement, the rights and remedies of each Party under this Agreement are in addition to and not exclusive of any other rights or remedies under this Agreement or the general law and may be waived only in writing and specifically.
9.3.2 Partial exercise of any right under this Agreement shall not preclude any further or other exercise of that right or any other right under this Agreement. Delay in exercising or non-exercise of any right under this Agreement is not a waiver of that or any other right.
9.3.3 Waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
9.4 Severance
9.4.1 If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
9.4.2 Whilst the Parties consider the provisions contained in this Agreement reasonable, having taken independent legal advice, if any one or more of the provisions are adjudged alone or together to be illegal, invalid or unenforceable, the Parties shall negotiate in good faith to modify any such provisions so that to the greatest extent possible they achieve the same effect as would have been achieved by the invalid or unenforceable provisions.
9.5 Entire Agreement
9.5.1 This Agreement including the Schedule constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the Parties relating to such subject matter.
9.5.2 Each Party acknowledges to the other that it has not been induced to enter into this Agreement by nor has it relied upon any representation, promise, assurance, warranty or undertaking (whether in writing or not) by or on behalf of the other Party or any other person save for those contained in this Agreement.
9.5.3 No amendment of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the Parties.
9.6 Survival Of Obligations
Notwithstanding anything contained herein to the contrary, the provisions of Clauses 3, 4, 5, 6, 8, and 9 and any other Clauses which are expressed to survive expiry or termination shall survive expiry or termination of the Agreement for any reason whatsoever and shall continue in full force and effect thereafter.
9.7 No Partnership/Agency
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
9.8 Rights of Third Parties
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision 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.
9.9 Notices
Any notice under this Agreement shall be in writing and delivered by hand, by facsimile by email or sent by prepaid first class (air mail if posted to another country), registered post or recorded delivery (if available) to the other party at its address above or otherwise notified in writing and shall be deemed to have been served immediately if hand delivered, emailed or faxed during business hours (or otherwise when the next business day starts) or, if posted, on the second business day following the date of posting (the fifth if posted to another country).
9.10 Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and in relation to any legal action or proceedings arising out of or in connection with this Agreement or its implementation or effect, each of the Parties irrevocably submits to the jurisdiction of the English courts and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.