1. SCOPE AND INTERPRETATION
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.
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.
Authorised 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 clause 2.10.
Data: any information, data, statistics, report or content which can be accessed via a Product or provided in exports for third party platforms.
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 clause 6.1.
Further Subscription Period(s): the further subscription period(s) referred to in the Fee Invoice(s).
GlobalWebIndex Data License: a licence 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).
Insight Store: our web based store that enables access to Data via reports or data downloads.
Location(s): the location(s) from which you are permitted to access the Product(s) as specified in the Fee Invoice(s).
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 PRO Platform and/or Insight Store.
PRO Platform: our online tool, the GlobalWebIndex PRO 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 Authorised 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.
Subscription Period: the Initial Subscription Period together with any Further Subscription Period(s).
Subscribed Data: the Data collected during the Subscription Period (which shall include the Appended Data (as defined in clause 5.8)).
Subscribed Data Access: access to, analysis and use of the Subscribed Data in accordance with the Agreement.
we, us or our: Trendstream Limited (company number: 6761659) with its registered office at Nexus Building, Floor 2, 25 Farringdon Street, London, EC4A 4AB
you or your: the party entering into the Fee Invoice(s) with us, and where the context so requires, you or your includes the Authorised Users.
1.4. Personal data, data processor and data controller shall bear the meanings given to those terms respectively in the Data Protection Act 1998.
￼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.
2.6. We will use your IP address and/or device tracking to verify your and the Authorised Users’ compliance with the T&C when accessing the Data via PRO Platform or Insight Store. We reserve the right to charge the Additional Fees (as described in clause 2.7) in the event of any breach of clauses 2.1 and/or 2.2 by you or any Authorised User. Breaches of clauses 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 Authorised Users.
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.
3. THIRD PARTY SOFTWARE
￼4. OUR OBLIGATIONS AND RIGHTS
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. YOUR OBLIGATIONS
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. 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 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. 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. 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. DISCLAIMER AND LIABILITY
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. PERSONAL DATA
10.2. If you submit an individual’s personal data to us you confirm you have the full authority to do so.
10.3. If we process any personal data on your or an Authorised User’s behalf, the parties record their intention that you shall be the data controller and we shall be a data processor and in any such case:
- (a)you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and the Authorised User are located in order to carry out the Services and our other obligations under the T&C and (if applicable) an Addendum; and
- (b)you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and ￼transfer the personal data in accordance with the Agreement on your behalf.
10.4. You shall indemnify us for any cost, claim or expense arising as a result of your breaching any data protection requirements or causing us to be in breach of any such data protection requirements.
11. NON SOLICITATION
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