1.1. These Subscription Terms and Conditions for Core Licences (the T&C), the Fee Invoice(s) and any Addendum (together, the Agreement) apply to 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. Unless we receive written notification of rejection of the updated T&C and/or Addendum (as the case may be) within seven days after your receipt of the same, 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. The definitions and rules of interpretation in this clause apply in the Agreement.
1.4. 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).
1.5. Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.
1.6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9. A reference to writing or written includes faxes and e-mail.
1.10. 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.
1.11. 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 Authorised 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 business operations and in accordance with the Agreement.
2.2. You and the Authorised Users may only use the Subscribed Data:
(a) solely for the purpose(s) of your own business, and you may analyse 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 Authorised 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 Authorised Users quote from the Subscribed Data at any time as expressly permitted by clause 2.2(b) then the following accreditation (or such other accreditation as we may notify 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 Authorised Users quote from the Subscribed Data at any time as expressly permitted by the T&C and (if applicable) any Addendum you shall (and you shall preserve that the Authorised 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 procure that the Recipient complies with those terms and conditions. In any event, you shall remain primarily liable for all use of the Subscribed Data by a Recipient.
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 Authorised Users are entitled to use, analyse, 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 Authorised Users are not permitted 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, save that the Subscribed Data can be used as expressly detailed in clauses 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; or
(f) assist any third parties in obtaining access to the Data; or
(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; or
(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 unauthorised access to, or use of, the Products or the Services and in the event of any such unauthorised access or use, promptly notify us.
2.7. In the event of any breach of clauses 2.1 and/or 2.2, without prejudice to our other rights and remedies, the following additional fees (Additional Fees) shall 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 clauses 2.1 and/or 2.2.
2.8. In the event an Authorised 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 ends at least 7 days before the date, and if such notification is not possible due to summary dismissal, you shall notify us within 2 working days after termination.
2.9. You and the Authorised Users shall only use the Additional Materials for the purpose of supporting use of the Product(s) and Data as authorised under the T&C and (if applicable) an Addendum, and shall not be entitled to otherwise use, analyse, 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 set 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.
2.11. Subject to the express provisions of the T&C or (if applicable) an Addendum, the Subscribed Data accessed by you during the Subscription Period is for your use only and shall not be sold or transferred to, or shared with, any third party or published in any way online or offline during the Agreement or at any time in the future and you agree to indemnify us accordingly should the Subscribed Data be so sold, transferred, shared or published otherwise than in accordance with the express provisions of the T&C or (if applicable) an Addendum.
4.1. We shall use commercially reasonable endeavours to make access to the relevant Product(s) and the Subscribed Data continuously available 24 hours a day, seven days a week (except for any maintenance carried out, provided that we give you at least 6 normal business hours’ (9am to 5pm) notice in advance, save that advance notice is not required in the case of emergency maintenance) to you and the Authorised Users during the Subscription Period. Notwithstanding the foregoing, we do not warrant that you or the Authorised 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 Authorised Users through the Services will meet your requirements.
4.2. We shall use commercially reasonable endeavours 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 endeavours 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 Authorised 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. 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.
4.8. 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.
5.1. You warrant that the representative who enters into the Fee Invoice(s) (and therefore the Agreement) upon your behalf is authorised to do so and you shall indemnify us for any loss suffered if the signatory is not so authorised.
5.2. You and all Authorised 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 Authorised User. You and all Authorised 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 Authorised 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 Authorised User.
5.3. You and the Authorised 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 unauthorised 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 Authorised Users to have access to our Site, the Products and the Services (including obtaining all licences and consents). You are also responsible for ensuring that all Authorised 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 Authorised 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 Authorised 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.
5.8. You hereby agree to indemnify and keep indemnified on demand and hold harmless us and our directors, employees, agents, and partners (Indemnified Parties) from and against any and all losses, demands, claims, damages, costs and/or expenses (including indirect or consequential losses and loss of profit, reasonable legal and other professional costs) and liability suffered or incurred, directly or indirectly by any of the Indemnified Parties arising out of any breach, non-performance or non-observance of any of the agreements, obligations, warranties, representations and undertakings on your part or on the part of any Authorised User. This clause 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 Indemnified Parties.
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 Authorised 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 clause 7.3. For the purposes of this clause 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 clause 7.1 does not apply to:
(a) any use or disclosure authorised 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 unauthorised 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 clause 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 expiry 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.
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. We are the owner or the licensee 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.
8.3. You acknowledge that GlobalWebIndex and Global Web Index are trade marks of Trendstream Limited.
9.1. This clause 9 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 Authorised Users in respect of any:
(a) breach of the Agreement (or any part of it);
(b) use made by you and the Authorised 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. 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.
9.3. 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.
9.4. Notwithstanding clause 4.3, we shall have no liability whatsoever to you or any Authorised User as a result of any action, claim, loss, damages or expenses, direct or consequential, suffered by you or any Authorised User due to your reliance on or use of the Data or other information obtained via the Site or the Products. You and the Authorised Users are solely responsible for any decisions you or the Authorised 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.
9.5. We shall have no liability to you or any Authorised User for any damages or loss or claim occasioned as a result of late delivery of any report or Data or website availability.
9.6. 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.
9.7. Nothing in the Agreement excludes or limits our liability for:
(a) death or personal injury caused by our negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) any liability which cannot be excluded or limited under applicable law.
9.8. Subject to clause 9.7:
(a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b) our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to total Fee(s) paid during the 12 months immediately preceding the date on which the claim arose.
10.1. 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”).
10.2. 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 authorise 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, 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:
(i) 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;
(ii) 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.
10.3. 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 organisational measures to protect Personal Data against accidental, unauthorised 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.
10.4. 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.
During the term of the Agreement and for a period of six months after its termination or expiry, neither you nor any Authorised User shall, without our prior written consent, solicit the business or custom of any of the customers who subscribe to any of our Products with a view to providing goods or services to such customers in competition with our Products.
All notices sent by you to us must be sent to Trendstream Limited, Nexus Building, Floor 2, 25 Farringdon Street, London, EC4A 4AB, UK or to the email address email@example.com (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 clause shall not apply to the service of any proceedings or other documents in any legal action.
13.1. 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 other provisions shall remain in force.
13.2. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
13.3. 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.
13.4. You shall not, without our prior written consent assign, transfer, charge, sub- contract or deal in any other manner with all or any of your rights or obligations under the Agreement.
13.5. 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 under the Agreement without obtaining our prior written consent.
13.6. 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.
13.7. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) (Disputes) shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts to settle any Disputes. The parties agree that they shall first attempt to settle any Disputes by negotiating in good faith between them and shall only commence litigious court based legal proceedings following the failure of any negotiations and an attempt to mediate a settlement.
13.8. 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. Nothing in this clause shall limit or exclude any liability for fraud.
©Trendstream Limited 2018