We live in a world awash with data and we are virtually all “subscribers” to some kind of data services whether they are professional services such as financial, legal, property, medical or research or “domestic”, such as online banking, shopping, leisure, movies or sport.
Whatever the service, it is important that there are clear and specific terms to regulate the manner in which data can be accessed, what can or cannot be done with it and how it may be used by the subscriber. This is particularly relevant with the continuous advances in technology which permits easy manipulation and distribution of information in ways which would have been hard to contemplate even a year ago. (For copyright and other issues affecting data see Commentary and Explanatory Notes to Contracts 25 and 26.)
This Contract is a fairly comprehensive agreement dealing with the supply of online information to business, be it financial to stockbrokers or legal to lawyers, and sets clear and definite parameters within which the data may be accessed and used.
It is also important to appreciate that the equipment which subscribers can use to access the data may be capable of inadvertently or otherwise penetrating the firewall to the main computer database and corrupting or otherwise introducing viruses or other malware into the database or system or indeed downloading vast amounts of data from the database for uses not permitted or contemplated by the agreement. For this reason, the database owner/supplier (the “data bureau” in this Contract) must be entitled to have some control over the subscriber’s equipment and Clause 5 of this contract imposes certain conditions covering this matter as well as having stringent copyright and non-exploitation provisions in Clause 7.
As the data bureau is in the business of supplying data services, and in order to prevent the onward supply, redistribution or revending of that data outside the permitted uses, the subscriber’s business activity is, in some specific instances, vetted before supplying the data. In addition, the subscriber should undertake (see Clause 3) not to download or redistribute the data to any other party unless the bureau has given its prior written consent. The penalty for breach is not only mere termination of supply but also indemnification of the data bureau for loss suffered and reimbursement of the gain the subscriber has made by virtue of the breach.
The type of data produced to businesses more often than not requires a reasonable degree of skill and judgment on the part of the subscriber in the interpretation and subsequent use of the data, for example, the formulation of opinions or recommendations upon which the subscriber or its client may act. It is essential from the point of view of the data bureau that it is not liable for any such interpretation, use or subsequent acts.
Finally, with respect to some types of data, the storing, transmission, processing or use of the same either by the database owner or the subscriber can be subject to “external” or legal, financial or statutory regulations or requirements, e.g. where the subscriber downloads personal data into the bureau’s own database for which the holder/processor of ’personal data’ may, in many jurisdictions, need to register under legislation relating to data protection and privacy of personal information or on the other hand, some data will be subject to freedom of information legislation, accordingly, it is appropriate to bring the possibility of such non-contractual, external conditions to the attention of subscribers (see Clause 3).