- SCOPE AND INTERPRETATION
1.1. These Subscription Terms and Conditions for Core Licenses (the T&C), the Fee Invoice(s) and any Addendum (together, the Agreement) constitute a binding legal agreement that governs our provision of the relevant Product(s) and the Services to you.
1.2. We may update the T&C and/or any Addendum from time to time upon email notice to you. Please also check these T&C periodically for changes. If you continue to access the Products or Services after receipt of notice of the updated T&C or Addendum, you will be deemed to have accepted the updated T&C and/or Addendum (as the case may be) from the date of receipt. If you reject the updated T&C and/or Addendum (as the case may be), we may (in our sole discretion) either:
(a) permit you to continue to use the Services and the Product(s) under the previous version of the T&C and/or the Addendum (as the case may be); or
(b) terminate the Agreement (in whole or in part) immediately on written notice to you.
1.3. Except for certain kinds of disputes described in Section 11.2, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
1.4. The definitions and rules of interpretation in this Section apply in the Agreement.
- Addendum: any addendum entered into between the parties pursuant to which we agree to provide additional products and/or services to you.
- Additional Material: additional material related to a Product and/or Data provided to You, including market research questionnaires, reports and guidelines.
- Authorized Users: your employees (excluding self-employed consultants or contractors) at the Locations who have been expressly referred to in the Fee Invoice(s).
- Custom Work: any consultancy services that we provide to you, as agreed pursuant to the Fee Invoice(s) and further described in Section 2.10.
- Data: any information, data, statistics, report or content which can be accessed by you via a Product or provided in exports for third party platforms.
- Data Protection Legislation: means the following legislation to the extent applicable from time to time: (i) the Data Protection Act 2018: (ii) unless and until the GDPR is no longer directly applicable in the United Kingdom, the GDPR and any national implementing laws, regulations and secondary legislation, as amended from time to time, in the United Kingdom and then; (iii) any successor legislation to the GDPR or the Data Protection Act 2018.
- Fee: the subscription fee stated in the Fee Invoice(s).
- Fee Invoice(s): each Fee Invoice(s) entered into by the parties specifying, inter alia, the Product(s) licensed to you, the Fee payable and the relevant Subscription Period.
- Force Majeure Event: has the meaning given in Section 6.1.
- Further Subscription Period(s): the further subscription period(s) referred to in the Fee Invoice(s).
- GDPR: means the General Data Protection Regulation (EU) 2016/679.
- GlobalWebIndex Data License: a license to access Data via our “GlobalWebIndex” platform, at all times in accordance with the Agreement.
- Initial Subscription Period: the initial subscription period specified in the Fee Invoice(s).
- Location(s): the location(s) from which you are permitted to access the Product(s) as specified in the Fee Invoice(s).
- parties: you and we when used collectively.
- Payment Date(s): the date(s) for the payment of the Fee as specified in the Fee Invoice(s).
- Product(s): the relevant product(s) selected by you in the Fee Invoice(s), being a GlobalWebIndex Data License and/or the Platform
- Platform: our online tool, the GlobalWebIndex Platform which provides access to and allows use of the Data.
- Region: the country, countries or areas specified in the Fee Invoice(s).
- Services: (i) access provided by us to the Product(s) to allow you and the Authorized Users to access and use the Subscribed Data in accordance with the Agreement; and (ii) if specified in the Fee Invoice(s), the Custom Work.
- Site: www.globalwebindex.com.
- Subscription Period: the Initial Subscription Period together with any Further Subscription Period(s).
- Subscribed Data: the Data accessed by you from the Platform during the Subscription Period (which shall include the Appended Data (as defined in Section 5.8)).
- Subscribed Data Access: access to, analysis and use of the Subscribed Data in accordance with the Agreement.
- we, us or our: GWI Inc., a Delaware corporation with an office at 22 W 38th Street, 7th Floor, New York, NY 10018
- you or your: the party entering into the Fee Invoice(s) with us, and where the context so requires, you or your includes the Authorized Users.
1.5. In the T&C the following terms shall have the meanings given to them in the Data Protection Legislation: Controller (or ‘controller’), Data Subject, Personal Data, Personal Data Breach, Processor (or ‘processor’), and Processing (and Process, Processes and Processed shall be construed accordingly).
1.6. Section, schedule and paragraph headings are for convenience only and shall not affect the interpretation of the Agreement.
1.7. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.8. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10. A reference to writing or written includes faxes and e-mail.
1.11. Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
1.12. If there is any conflict or inconsistency between a term of: (a) a Fee Invoice(s); (b) the Addendum; and (c) the T&C, the term in the document first appearing in this list shall prevail.
2.1. In consideration for your payment of the Fee on the Payment Date(s), you and the Authorized Users are granted a non-exclusive, non-transferable, non-sublicensible license to use the relevant Product(s) for Subscribed Data Access from the Location for the Region for the Subscription Period only, solely for your internal business operations and in accordance with the Agreement.
2.2. You and the Authorized Users may only use the Subscribed Data:
(a) solely for the purpose(s) of your own business, and you may analyze the Subscribed Data for internal purposes relating to the development of your own business only provided always that this does not involve the use or analysis of the Subscribed Data for the benefit of any third party except otherwise agreed with us in writing; and
(b) in order to support (by way of quotation or reference only) media planning and buying, campaign reporting, creative, direct marketing, modelling, sales promotion, public relations, online, web development and social media strategy in line with your area of business, provided always that the Subscribed Data quoted or referred to:
(i) relates directly to the specific products, services and/or media concerning which you and (where applicable) the relevant third party have actual or genuine prospective commercial dealings; and
(ii) is used by you only in the year which the Subscribed Data is published, provided that, in each case, you may only use the Subscribed Data in a managed environment (for example dashboards or campaign reporting software) and under no circumstances may you or the Authorized Users publish any of the Subscribed Data online or otherwise make the Subscribed Data available to the public (for example in client bulletins or blog posts) without our prior written agreement, with any such publication constituting an irremediable material breach of the Agreement.
2.3. If you and/or any Authorized Users quote from the Subscribed Data at any time as expressly permitted by Section 2.2(b) above then the following notice (or such other notice as we may provide to you from time to time) must appear in all copies of materials featuring such Subscribed Data: “GlobalWebIndex Wave ‘insert quarter number and year’.
2.4. If you and/or any Authorized Users quote from the Subscribed Data at any time as expressly permitted by this T&C and (if applicable) any Addendum you shall (and you shall ensure that the Authorized Users shall) notify the person to whom such disclosure is made (Recipient) of the terms and conditions relating to the use of the Subscribed Data and shall ensure that the Recipient complies with those terms and conditions. In any event, you shall remain primarily liable for all use of the Subscribed Data.
2.5. Except as expressly agreed with us in writing or as stated in the T&C or (if applicable) an Addendum neither you nor the Authorized Users are entitled to use, analyze, copy, distribute or sell the Data to or on behalf of any third party. For the avoidance of doubt, except as expressly agreed with us in writing or as stated in the T&C or (if applicable) an Addendum, you and Authorized Users are not permitted to (and may not permit any third party to):
(a) copy, modify, duplicate, create derivative works from, frame, mirror, download, display, transmit or distribute the Data, in whole or in part, by any form of media, means or process; or
(b) use the Data in whole or in any part for any purpose, except that the Subscribed Data can be used as expressly detailed in Sections 2.1 and 2.2; or
(c) provide, disclose, license, lease, assign, supply, copy, distribute or commercially exploit the Data in whole or in part to any third party; or
(d) provide, disclose, supply, copy, distribute or sell tables, reports or presentations or any other materials using or containing the Data to any third party;
(e) provide, disclose, supply, copy, distribute or sell raw Data output from any analysis software (including cross-tabs, analysis and target profiles) to any third party via any means including, without limitation, e-mail, fax and/or hard copy;
(f) assist any third parties in obtaining access to the Data;
(g) provide, disclose, supply, copy, distribute or sell the Data or any part thereof on an ad hoc basis in response to any other third party request;
(h) refer to or present the Data in whole or in part as your own research, and/or provide, supply or sell consultancy services based solely on analysis of the Data without our prior written permission; or
(i) use the Data (whether provided in software form or otherwise) in association with or by reference to any other database (in software form or otherwise) for the purpose of merger or fusion of the Data with such other databases, without our prior written consent. In addition, you shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Products or the Services and in the event of any such unauthorized access or use, promptly notify us.
2.6. We will use device tracking technology to verify your and the Authorized Users’ compliance with the T&C when accessing the Data via the Platform. The device tracking information used by us will monitor certain information relating to Authorized Users and their devices, such as IP address and/or other information provided by their devices (including, without limitation, operating system, location, device identifier, screen resolution, battery level information and browser choice). We reserve the right to charge the Additional Fees (as described in Section 2.7) in the event of any breach of Sections 2.1 and/or 2.2 by you or any Authorized User. Breaches of Sections 2.1 and/or 2.2 shall include accessing and using a Product and/or Subscribed Data at an address other than the Location, access and use of Data other than Subscribed Data or access to and/or use of a Product and/or the Subscribed Data by your employees who are not Authorized Users. We may also terminate this Agreement with immediate effect in the event of your breach of Sections 2.1 or 2.2.
2.7. In the event of any breach of Sections 2.1 and/or 2.2, without prejudice to our other rights and remedies, the following additional fees (Additional Fees) may be payable by you (at our discretion):
(a) a sum equal to the Fee for the then-current Subscription Period; or
(b) where a breach occurs or is discovered within the last 60 days of the Subscription Period, a sum equal to the subscription fee (as notified by us to you) for access to and use of the relevant Product(s) for the 12 month period immediately following the end of the then-current Subscription Period. You agree that the Additional Fees are a genuine pre-estimate of part of the loss that we are likely to suffer as a result of any breach by you of Sections 2.1 and/or 2.2.
2.8. In the event an Authorized User’s employment with you is terminated or ends for any reason, their access to the Products and the Services shall be terminated. You shall notify us of the date that the individual’s employment will end at least 7 days before the date, and if such notification is not possible due to immediate termination of employment, you shall notify us within 2 working days after termination.
2.9. You and the Authorized Users shall only use the Additional Materials for the purpose of supporting use of the Product(s) and Data as authorized under the T&C and (if applicable) an Addendum, and shall not be entitled to otherwise use, analyze, copy, distribute or sell the Additional Material(s) to or on behalf of any third party.
2.10. If you have purchased a GlobalWebIndex Data License you may also be provided with a specified number of hours of our analysts’ time for Custom Work (as set out in the Fee Invoice(s)). These hours can only be used by you during the Subscription Period, such hours to expire at the end of the Subscription Period and to also not be assignable or transferrable to any third party at any time. The hours have no monetary value and we shall not reimburse you for any outstanding hours not used at the end of the Subscription Period.
- THIRD PARTY SOFTWARE
- OUR OBLIGATIONS AND RIGHTS
4.1. We shall use commercially reasonable efforts to make access to the relevant Product(s) and the Subscribed Data continuously available 24 hours a day, seven days a week, with the following exceptions: (a) any scheduled maintenance carried out, provided that we give you at least 6 normal business hours’ (9am to 5pm Eastern Time) notice in advance to you during the Subscription Period; and (b) emergency maintenance, for which prior notice may be provided at our sole discretion if commercially feasible. NOTWITHSTANDING THE FOREGOING, WE DO NOT WARRANT THAT YOU OR THE AUTHORIZED USERS CAN ACCESS AND/OR USE OUR SITE, ANY PRODUCT OR THE DATA OR ANY PART OF THE SERVICES AT ANY SPECIFIC TIME OR THAT IT WILL BE UNINTERRUPTED OR ERROR-FREE; NOR THAT THE DATA AND/OR THE INFORMATION OBTAINED BY YOU OR THE AUTHORIZED USERS THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS.
4.2. We shall use commercially reasonable efforts to respond to all customer support requests within 24 hours of receiving any such request from you.
4.3. We shall use our commercially reasonable efforts to ensure the accuracy of all Data.
4.4. We shall perform any Custom Work with reasonable skill and care.
4.5. We shall be under no obligation to you or the Authorized Users to retain or permit access to any questionnaires, survey records or other information used by us in the compilation of the Data.
4.6. We shall be entitled at any time to vary or amend or modify the specification used in compilation of the Data including, without limitation to the generality of the foregoing, any questionnaire used by us. We reserve the right to change any survey, data coverage, market coverage, sample size and access details. We reserve the right to change any part or all of a Product or the Services at any time.
4.7. The Agreement shall not prevent us from entering into similar agreements with third parties or from independently developing, using, selling or licensing products, services or data which are similar to those provided or generated under the Agreement.
- YOUR OBLIGATIONS
5.1. If you are entering into the Fee Invoice(s) (and therefore the Agreement) on behalf of a business or corporate entity (Organization), then you hereby represent and warrant that you have the authority to bind that Organization and your acceptance of the Agreement will be treated as acceptance by the Organization. In that event, “you” and “your” in the Agreement will refer to the Organization. The Organization shall indemnify us for any loss suffered if you are not so authorized.
5.2. You and all Authorized Users are responsible for keeping secure any password, user name or other information required for accessing or using the Products or the Services (security information) and undertake to change any password in line with any instructions from us, while you also permit us to audit the security information to establish the name and password of each Authorized User. You and all Authorized Users must keep the security information confidential and not disclose these details to any third party. We have the right to disable any security information, whether chosen by you or allocated by us, at any time (without liability), if in our opinion you or an Authorized User has failed to comply with any of the provisions of the T&C or (if applicable) an Addendum. We reserve the right not to issue any new passwords to an individual we determine is not an Authorized User.
5.3. You and the Authorized Users must not misuse our Site, the Services or the Products by introducing, accessing, storing or distributing any viruses, trojans, worms, logic bombs or other materials which are malicious, technologically harmful, defamatory, infringing or facilitate any illegal activity. You must not attempt to gain unauthorized access to our Site or the Products, the server(s) on which our Site or the Products are stored or any server, computer or database connected to our Site, the Products and/or the Services. You must not attack our Site or the Products via a denial-of-service attack or a distributed denial-of service attack.
5.4. You are responsible for making all arrangements necessary for you and the Authorized Users to have access to our Site, the Products and the Services (including obtaining all licenses and consents). You are also responsible for ensuring that all Authorized Users who access our Site, the Products and Services through your internet connection are aware of the T&C and (if applicable) the Addendum and that they comply with them.
5.5. You shall ensure that any Authorized User who accesses and/or uses the Site, the Products, and/or the Services confirms that they shall comply with the T&C and (if applicable) the Addendum.
5.6. You shall maintain a written, up to date list of current Authorized Users and provide such list to us within 5 business days after any written request.
5.7. You shall provide us with all necessary co-operation in relation to the Agreement and all necessary access to such information as may be required by us in order to provide the Services and/or the Products. In addition, you shall comply with all reasonable instructions from us in relation to your use of the Product(s) and the Services.
- EVENTS OUTSIDE OUR CONTROL
6.1. We shall not be liable or responsible for any failure to perform or delay in performance of any of our obligations under the Agreement that is caused by:
(a) any act or omission of you or an Authorized User; or
(b) events outside of our reasonable control, including, Acts of God, flood, earthquake, storm or other natural disaster, any labour dispute (including strikes, industrial action or lockouts), terrorist attack, failure of a utility service or telecommunications network, malicious damage, compliance with any governmental order, rule, regulation or direction, fire, flood or default of suppliers or sub-contractors (Force Majeure Event).
6.2. Our obligations under the Agreement will be suspended for the period that the Force Majeure Event continues, and we will have an extension of time to perform these obligations for the duration of that period.
7.1. Each party (receiving party) agrees not to use or disclose to any person any confidential information about the business or affairs of the other party (disclosing party) or any of its business contacts, or about any other confidential matters which may come to its knowledge in the course of performing its obligations under the Agreement except as permitted in Section 7.3. For the purposes of this Section 7 confidential information means any information or matter which is not in the public domain and which relates to the affairs of the disclosing party or any of its business contacts that would be regarded as confidential by a reasonable business person.
7.2. The restriction in Section 7.1 does not apply to:
(a) any use or disclosure authorized in writing by the disclosing party or as required by law; or
(b) any information which is already in, or comes into, the public domain otherwise than through unauthorized disclosure of the receiving party; or
(c) any information which was lawfully in the possession of the receiving party before the information was disclosed to it by the disclosing party.
7.3. If it is necessary for the performance of its obligations under the Agreement, the receiving party is permitted to use the disclosing party’s confidential information for such purpose.
7.4. The receiving party must return or destroy upon the disclosing party’s request the disclosing party’s confidential information.
7.5. Each party shall take all reasonable steps to ensure that the other’s confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
7.6. This Section 7 shall survive termination of the Agreement, however arising.
7.7. No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
7.8. On any termination of the Agreement for any reason or upon its expiration each party shall as soon as reasonably practicable return or destroy (as directed in writing by the other party) all Data, information, security information, software and other materials provided to it by the other party in connection with the Agreement including all materials containing or based on the other party’s confidential information.
- INTELLECTUAL PROPERTY RIGHTS AND CONTENT
8.1. The Site and the Products are owned by us. Unless otherwise stated, all content on or extracted via the Site or the Products, including any Data, and the products of the Services (including any deliverables generated through the Custom Work), are owned by us. The content of the Site, the Products and the Data are protected by intellectual property rights including copyright, moral rights, trade marks or trade names (whether registered or unregistered), database rights, patents and trade secrets. As between you and us, we are the owner of all such intellectual property rights.
8.2. You acknowledge that you shall have no rights in or to the Data other than the right to use it in accordance with the express terms of the Agreement. We reserve all other rights.
8.3. You acknowledge that GlobalWebIndex and Global Web Index are trademarks of Trendstream Limited (company number: 6761659) with its registered office at Nexus Building, Floor 2, 25 Farringdon Street, London, EC4A 4AB (Trendstream Limited), and all goodwill in such marks will inure to the benefit of Trendstream Limited and GWI.
- DISCLAIMER AND LIABILITY
9.1. This Section 9 applies to the fullest extent permitted by law and sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you and the Authorized Users in respect of any:
(a) breach of the Agreement (or any part of it);
(b) use made by you and the Authorized Users of the Services, the Products and the Data or any part of them; and
(c) representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement (or any part of it).
9.2. THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE WILL NOT BE LIABLE IF FOR ANY REASON OUR SITE, THE PRODUCTS OR THE SERVICES ARE UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND YOU ACKNOWLEDGE THAT THE SERVICES AND AVAILABILITY OF THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF- SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF OUR SITE, THE PRODUCTS AND/OR THE SERVICES.
9.3. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY AUTHORIZED USER AS A RESULT OF ANY ACTION, CLAIM, LOSS, DAMAGES OR EXPENSES, DIRECT OR CONSEQUENTIAL, SUFFERED BY YOU OR ANY AUTHORIZED USER DUE TO YOUR RELIANCE ON OR USE OF THE DATA OR OTHER INFORMATION OBTAINED VIA THE SITE OR THE PRODUCTS. YOU AND THE AUTHORIZED USERS ARE SOLELY RESPONSIBLE FOR ANY DECISIONS YOU OR THE AUTHORIZED USERS MAY TAKE OR DECIDE NOT TO TAKE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THE PRODUCTS AND ANY DATA, AND/OR FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES, THE PRODUCTS AND THE DATA, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. WE SHALL HAVE NO LIABILITY TO YOU OR ANY AUTHORIZED USER FOR ANY DAMAGES OR LOSS OR CLAIM OCCASIONED AS A RESULT OF LATE DELIVERY OF ANY REPORT OR DATA OR WEBSITE AVAILABILITY.
9.5. Except as expressly and specifically provided in the Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR GWI ENTITIES (AS DEFINED BELOW) OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE GWI ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.
9.6. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE TO YOU WHETHER IN TORT (INCLUDING FOR NEGLIGENCE), CONTRACT, MISREPRESENTATION, RESTITUTION OR ANY OTHER LEGAL THEORY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR INTANGIBLE LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THE AGREEMENT AND WHETHER OR NOT ANY GWI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF THE GWI ENTITIES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION OR OTHERWISE, FOR ALL CLAIMS ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THE AGREEMENT, OR YOUR USE OF OR INABILITY TO USE ANY PORTION OF THE SERVICES SHALL BE LIMITED TO THE TOTAL FEE(S) PAYABLE BY YOU DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
9.7 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.1 To the fullest extent permitted by law, you are responsible for your use of the Services, the Products and the Data, and you hereby agree to defend and indemnify us and our officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the GWI Entities) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your and your Authorized Users’ unauthorized use of, or misuse of, the Services, the Products or the Data; (b) your and your Authorized Users’ violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your and your Authorized Users’ violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims. This Section shall continue to have full force and effect notwithstanding any suspension or termination of the Agreement. The indemnity contained above is without prejudice to and in addition to any warranties, indemnities, remedies or other rights provided by law and/or statute and/or any other provision of the Agreement for the benefit of any of the GWI Entities.
- DISPUTE RESOLUTION AND ARBITRATION
11.1 Generally. In the interest of resolving disputes between you and us in the most expedient and cost effective manner, and except as described in Section 11.2, you and we agree that every dispute arising in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) (Disputes) shall first be attempted to by settled by negotiations between you and us in good faith. Following the failure of any negotiations and an attempt to mediate a settlement, you and we agree that all Disputes will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
11.2 Exceptions. Despite the provisions of Section 11.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
11.3 Arbitrator. Any arbitration between you and us will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules (collectively, AAA Rules) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
11.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (Notice of Arbitration). Our address for Notice is: GWI Inc., 22 W 38th Street, 7th Floor, New York, NY 10018. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (Demand). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or we may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
11.5 Fees. If you commence arbitration in accordance with this Agreement, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
11.6 No Class Actions. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
11.7 Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
11.8 Enforceability. If Section 11.6 is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15.7 will govern any action arising out of or related to this Agreement.
- PERSONAL DATA
12.1. You and we each agree that we will comply with the GDPR. We may process personal data made available by you in relation to the services we provide, such as individual user details, (“Supplied Personal Data”).
12.2. Where we process Supplied Personal Data as your Processor:
b) we will only process the Supplied Personal Data on your documented instructions unless we are required to process it for other purposes by EU law (in which case we will give prior notice of that requirement unless the relevant law prohibits the giving of notice);
c) we shall ensure that only those personnel who need to have access to the Supplied Personal Data are granted access solely for the purposes of the performance of the Agreement and that all of the personnel permitted to access and/or to process the Personal Data are subject to contractual duties of confidence to keep the Supplied Personal Data confidential and to process the Supplied Personal Data in compliance with this clause;
d) we will comply with the express obligations of a Processor under Articles 28(3)(b) to 28(3)(h) of the GDPR. However, you may not instruct us to delete copies of data that we hold as Controller (as defined in the Data Protection Legislation);
e) you generally authorize us to engage further processors to process Supplied Personal Data. We will notify you of any proposed change to our processors in advance of making any change. If you reasonably object to a change, at our option we will terminate the provision of the affected product or service to you.
f) you will tell us if you require any assistance pursuant to Articles 28(3)(a) to 28(3)(h) of the GDPR inclusive. We and you will agree the scope, method, timing and reasonable fees chargeable by us for such assistance;
g) in fulfilment of our obligation to demonstrate compliance with this paragraph, we will make available to you information on our processing of Supplied Personal Data (including, at our discretion, certificates, third party audit reports or other relevant information);
i) we without delay in relation to the Supplied Data, at your written request will:
(ii) either securely delete or return all the Supplied Personal Data to you in such form as you reasonably request in accordance with your requirements and instructions; and
(iii) in the case of deletion, also securely delete existing copies of the Supplied Data (unless storage of any data is required by applicable law in the United Kingdom and, if so, we shall inform you of any such requirement).
j) we shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on your behalf, including:
(i) the name and contact details of any additional Processor(s) appointed by us and its representative and any data protection officer;
(ii) the categories of processing carried out; and
(iii) a general description of the security measures,
and we shall permit, on reasonable notice at your expense, audits by you or your designated auditor of all relevant records and systems in respect of our compliance with Data Protection Legislation in relation to the Supplied Data.
12.3 Where we process Personal Data as Controller:
a) you will bring to the attention of any individuals you make our services available to (or that you ask us to deal with or carry out research on) any privacy notices we make available for those services;
b) you continue to act as Controller in respect of any Personal Data you choose to record or otherwise process as a result of your receipt and use of the services;
c) we may transfer Supplied Personal Data outside of the EEA where we are permitted to do so for that transfer under Articles 44 to 49 of the GDPR, provided that we notify you of such transfer in advance.
d) you confirm that any Supplied Personal Data provided to us by you or on your behalf has been collected and disclosed in accordance with Data Protection Legislation. When using our services, you will take reasonable steps to ensure that you and your employees, agents and contractors do not input, upload or disclose to us any irrelevant or unnecessary information about individuals.
e) you and we will each maintain, and will require our Processors (respectively) to maintain, appropriate physical, technical and organizational measures to protect Personal Data against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access (“Data Breach”). You will, without undue delay, tell us of any actual or suspected non-trivial Data Breach relating to Personal Data that may also impact us or the security of our systems, products or services. We will notify you, without undue delay, of any non-trivial Data Breach that may adversely affect the Supplied Personal Data.
12.4. You shall indemnify us for any cost, claim or expense arising as a result of your breaching any Data Protection Legislation or causing us to be in breach of any such Data Protection Legislation.
- NON SOLICITATION
During the term of the Agreement and for a period of six months after its termination or expiration, neither you nor any Authorized User shall, without our prior written consent, solicit the business of any of the customers who subscribe to any of our Products or Services with a view to providing goods or services to such customers in competition with our Products or Services.
All notices sent by you to us must be sent to GWI Inc., 22 W 38th Street, 7th Floor, New York, NY 10018, or to the email address firstname.lastname@example.org (or such other addresses and email addresses as we may notify to you from time to time). We may give notice to you at the postal address or email address you provide in the Fee Invoice(s) (or otherwise). Notice will be deemed received and properly served three days after the date of posting of any letter and on successful transmission of any email. In proving the service of any notice, it will be sufficient to prove that the letter was properly addressed, stamped and placed in the post or that the email was successfully delivered to the email address given. The provisions of this Section shall not apply to the service of any proceedings or other documents in any legal action.
15.1. Upon termination of the Agreement: (a) your license rights will terminate and you and your Authorized Users must immediately cease all use of the Site, Services and Products; (b) you will no longer be authorized to access your account or the Site; (c) you must pay us any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 1, 2.7, and 7 through 15 will survive.
15.2. If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent territory to be invalid, unenforceable or illegal, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
15.3. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
15.4. Failure by us to exercise or enforce any right in relation to terms and conditions of this agreement shall not be deemed to be a waiver of that right.
15.5. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Agreement. You may not assign, transfer, charge, sub-contract or deal in any other manner with any of your rights or obligations, in whole or in part, under the Agreement without obtaining our prior written consent.
15.6. No person other than a party to the Agreement shall have any rights to enforce any term of the Agreement. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Agreement is not subject to the consent of any person that is not a party to the Agreement.
15.7. With the exception of Disputes governed by Section 11 above, the resolution of all Disputes shall be governed by and construed in accordance with the law of the State of New York without regard to its conflicts of law principles, and the parties submit to the exclusive jurisdiction of the federal and state courts within New York County, New York to settle any Disputes.
15.8. The Agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Agreement. Each party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty of any person other than as expressly set out in the Agreement.
15.9. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (Additional Terms). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
15.11 The Services and Products are offered by GWI Inc., located at 22 W 38th Street, 7th Floor, New York, NY 10018. You may contact us by sending correspondence to that address or by emailing us at email@example.com. You can access a copy of the T&C by clicking here.