1.1 This Agreement governs your use of the Market Intelligence services (“Services“) which are provided by MaRS Discovery District and its subsidiaries, affiliates, and related companies (“MaRS”) for its clients and those of Regional Innovation Centers on behalf of Ontario’s Ministry of Economic Development and Innovation (“MEDI”).
1.2 MaRS reserves the right, in its sole discretion, to change or modify all or any part of this Agreement at any time, effective immediately upon notice published on the MaRS Web Site. Your use of the Service constitutes your binding acceptance of these terms and conditions, including any changes or modifications made by MaRS as permitted above. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you should immediately cease use of the Service.
2. Use of Content
2.1 You acknowledge that the Service may provide you with access to data, information, software, photographs, audio and video clips, graphics, links and other material (collectively, the “Content“) that is protected by copyright, trade-mark or other proprietary rights of MaRS or third parties, including but not limited to product names, logos, designs, titles, and words or phrases which may be registered in certain jurisdictions. You acknowledge that the author, owner or provider of the Content (defined below) will own all right, title, and interest in and to the Content, including without limitation all copyrights, trade-marks and other intellectual property rights. You agree to comply with any additional copyright, trade-mark or other notices and restrictions contained in or on any of the Content. Further, you agree that you may use the Content only for your internal use.
2.2 You may not modify, publish, communicate, translate, adapt, sell or otherwise transfer, reproduce, create derivative works from, distribute, perform or in any way exploit any of the Content, in whole or in part, except as otherwise expressly permitted in this Agreement and in the specific terms under which you receive access to Content. Content consisting of downloadable software may not be reverse-engineered unless specifically authorized by the owner of the software’s patent and copyright.
3. Not Financial or Legal Opinions
3.1 You acknowledge that any Content provided as part of the Service is for business and educational purposes only and is not intended to constitute financial or legal opinions of any kind.
3.2 While the Content is believed to be accurate at the time that it is made available as part of the Service, MaRS does not warrant or represent that any Content will be accurate or reliable.
3.3 You acknowledge and agree that you should not rely on any Content provided as part of the Service and that any reliance upon such Content shall be at your sole risk.
4.1 You agree to indemnify, defend and hold MaRS and its affiliates, and their respective officers, directors, owners, agents, information providers and licensors (collectively, the “MaRS Parties“) harmless from and against any and all claims, liability, losses, costs and expenses (including costs and legal fees) incurred by any MaRS Party in connection with any use or alleged use of the Service under your user name by any person, whether or not authorized by you. MaRS reserves the right, at your expense, to assume the exclusive defence and control of any claim or other matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with MaRS’ defence of such claim.
5. Links To And From Other Web Sites
5.1 If any part of the Service provides hypertext links to other Web Sites, such links are provided as a convenience only. MaRS does not endorse any services or products that may be mentioned or promoted on those Web Sites or license the use of any content on those Web Sites.
5.2 Access to parts of the Service may be provided by a hypertext link located at another Web Site. Although MaRS may encourage links from third party Web Sites, MaRS has no responsibility for the content of such Web Sites and does not endorse, authorize, approve, certify, maintain, or control these other Web Sites and does not guarantee the accuracy, completeness, efficacy or timeliness of the information located at such Web Sites
6.1 MaRS respects your privacy and will comply with all applicable laws in our dealings with your personal information.
6.2 You expressly consent to MaRS including personal information collected from you in its files and to the disclosure of your personal information to MaRS Parties in order to provide you with the Service. The use of your personal information by the MaRS Parties shall be limited to that which is reasonably necessary to provide you with the Service or to provide you with related information that the MaRS Parties believe may be of interest to you. In addition, the MaRS Parties may collect, use or disclose your personal information for any reasonable purpose for which consent is not required under applicable privacy laws.
6.3 Your personal information will be kept confidential within the MaRS client management system in accordance with applicable privacy laws. If you have any questions about the use of your personal information by the MaRS Parties, or wish to access or correct your personal information, please contact Mei Burgin, Director of Market Intelligence by email at firstname.lastname@example.org or by telephone at 416-673-8100.
7. Termination of Service
7.1 MaRS reserves the right, in its sole discretion, to restrict, suspend or terminate your access to all or any part of the Service at any time for any reason or no reason without prior notice to you or any liability to you. MaRS may change, suspend or discontinue all or any aspect of the Service at any time, including the availability of any Content, without prior notice to you or any liability to you.
8. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
8.1 NONE OF MaRS OR ANY AUTHOR, OWNER OR PROVIDER OF CONTENT, OR THEIR RESPECTIVE AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT:
8.1.1 THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE;
8.1.2 THE MaRS PARTIES HAVE TITLE TO ALL OR ANY PART OF THE SERVICE, CONTENT;
8.1.3 THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE, THE CONTENT WILL BE ACCURATE OR RELIABLE;
8.1.4 THE SERVICE OR ANY CONTENT WILL BE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE;
8.1.5 ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SERVICE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES
8.2 THE SERVICE AND THE CONTENT ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.
8.3 NONE OF MaRS NOR ANY AUTHOR, OWNER OR PROVIDER OF CONTENT SHALL BE LIABLE FOR ANY ACT, DIRECT OR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR ANY PART OF IT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Terms for Use of IDC, Gartner, GlobalData, Lux Research, IBISWorld, and Euromonitor International Reports.
9.1 In addition to the other terms and provisions contained in this Agreement, you acknowledge and agree that the terms and provisions contained in Schedule A shall apply in connection with your use of any research documents and work product, including studies, briefs, presentations, conference proceedings and inquiry responses, (the “IDC Reports”) produced by International Data Corporation (Canada) Ltd. (“IDC”). Schedule B shall apply in connection with use of any research documents and work products, including studies, briefs, presentations, conference proceedings and inquiry responses, produced by Gartner Inc. You further acknowledge and agree that you will comply with the terms and conditions of Schedule C with respect to any materials produced by GlobalData. Schedule D shall apply to use of any research reports, journals, company profiles, analyst insights, and analyst inquiry responses produced by Lux Research. Schedule E shall apply in connection with use of any research documents and work products produced by IBISWorld Inc. Schedule F shall apply to use of Euromonitor intelligence.
10.1 This Agreement shall be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in Ontario. The parties irrevocably agree to bring any action to enforce this Agreement solely and exclusively in the courts of Ontario. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. All provisions hereof shall survive any termination of this Agreement as well as any other revisions which by their terms or sense are intended to survive any such termination.
TERMS FOR USE OF IDC REPORTS
- You acknowledge and agree that IDC will be deemed to be the author of all IDC Reports and, accordingly, IDC will own all right, title, and interest in and to the IDC Reports, including without limitation all copyrights and trade-secrets rights. You shall include on all copies of the IDC Reports you use or distribute (as permitted by this Agreement) all IDC proprietary rights notices included or requested by IDC and, at IDC’s request, shall sign any assignments or other documents necessary or appropriate to confirm IDC’s copyright and ownership interests set forth herein.
- Under the terms of this Agreement, you are granted a license to use the IDC Reports to support internal marketing, strategic planning, and business development functions. This includes the right to quote or paraphrase individual sentences or occasional paragraphs, but not entire pages or chapters. For these purposes “internal” use is distinguished from external use and means uses intended only to serve your information needs (as distinguished from your suppliers, affiliates, and customers) and only to be seen by your officers and employees obligated to treat such information as confidential.
- You may not distribute, display, promote or otherwise use the IDC Reports or other IDC information or material for any external use, without the prior express written permission from the appropriate IDC representative, which permission shall not be unreasonably withheld. In such cases, you will provide a copy of the precise proposed wording or document to enable IDC to gauge the full context of the usage, and ensure its accuracy, currency, use in context and proper attribution. External use includes, but is not limited to, the publication, promotion, display or dissemination of advertisements, press releases, white papers, direct mail campaigns, Web site postings and any other materials where they may be viewed by persons who are not your officers or employees obligated to treat such material as confidential. You agree to communicate this policy to all relevant persons.
- Unless expressly stated otherwise, (i) the medium or format in which the IDC Reports are received, or which is specified as the medium for distribution (e.g., Internet, CD-ROM, Lotus Notes, PDF), is the only means by which you may reproduce and distribute those materials, subject also to any other requirements and restrictions as provided herein, (ii) external usage and distribution privileges are granted in the English language only, and (iii) when Web-posting is permitted, the posted IDC material may be displayed only on your public web site and may be linked into from other relevant sites, but may not be linked externally to, posted on or displayed from other sites. Without the prior express written permission from IDC, you may not alter the text, format, or graphic design of any IDC Report in any way, or insert additional material in such a way that it appears to be part of the content provided by IDC.
- You represent that you have or will put in place procedures to promote compliance with the above restrictions; that you will monitor compliance from time to time on your own and as requested by IDC; and that in the event of a breach or alleged breach of these restrictions you will notify IDC, promptly take reasonable corrective measures (in consultation with IDC) and provide IDC with access and cooperation to enable IDC to audit compliance.
- Absent the prior express written consent of IDC, you shall not use the name, trademarks, or logo of IDC in promotional materials, publicity releases, advertising, or other external publications or communications, whether oral or written.
- In the event of a breach of any of the foregoing obligations, you will be required to pay to IDC the amount of $4,500 for each and every such violation.
- You acknowledge that the only companies eligible to receive IDC Reports through the Service are those having less than $1,000,000 in revenues (for greater certainty revenues do not include venture capital or other types of funding that may be received by the company). You represent and warrant that you are a company with less than $1,000,000 in revenues.
TERMS FOR USE OF GARTNER REPORTS
- You acknowledge and agree that by signing the MaRS agreement you also consent to terms and conditions of use as indicated in Gartner’s Canada Master client agreement.
- Access to the Services is restricted to named individuals (each a “Subscriber”). Subscribers may not substitute another Subscriber without MaRS’ prior written approval. Subscribers agree to establish and enforce appropriate security measures to limit access to the Services to authorized Subscribers. The rights granted to each Subscriber may not be sublicensed, sold or otherwise transferred.
- Ownership and Use of the Services. The Services are owned and copyrighted by a third party service provider and/or its affiliates. The third party service provider reserves all rights to the Services not expressly granted to the MaRS or Subscriber hereunder. Subscribers of the research may (i) print one copy of individual research documents for their personal use, for the benefit of the Subscriber; (ii) excerpt from individual research documents, on a non-routine basis, for internal presentations or reports to be shared with other Subscriber personnel, provided the excerpt is within the limits of “fair dealing” under applicable copyright law. For clarity, excerpts may not contain the substantive content of the source document. Subscriber may not redistribute copies of individual research documents, by electronic means or otherwise, to non-Subscribers unless specifically authorized in a Service Description. Subscribers may not reproduce or distribute the Services externally without third party service provider’s prior written permission, except for external distribution, in their entirety only, of “Reprints” of individual documents purchased by Subscriber. Subscriber may excerpt from the Services for external use only if Subscriber obtains the prior written approval of third party service provider’s Vendor Relations, at email@example.com. Any approved external use of the Services must comply with Gartner’s Copyright and Quote Policy which may be viewed on the Gartner Vendor Relations section of gartner.com. The Services may not be stored by Subscriber on any information storage and retrieval system.
- While the Content is believed to be accurate at the time that it is made available as part of the Service, MaRS does not warrant or represent that any Content will be accurate or reliable. The services are provided on an “as-is” basis and the third party service provider offer no warranty. (See warranty disclaimer language below.)
- You further acknowledge and agree that you should not rely on any Content provided as part of the Service and that any reliance upon such Content shall be at your sole risk.
This Schedule C sets forth your rights and obligations regarding access to and use of GlobalData made available to you by MaRS.
The information by GlobalData has been included in good faith for general informational purposes only. GlobalData may contain information submitted by a third party including adverts. The information should not be relied upon for any specific purpose and no representation or warranty is given as to its accuracy or completeness.
Any opinions (express or implied) are those of the individual authors and not necessarily those of GlobalData Ltd or its partner organisations.
Except for any express warranties or undertakings given by GlobalData, we exclude all warranties (express or implied) in respect of GlobalData and the content of and your use of GlobalData.
We shall not be liable to you for any loss that you suffer (including, without limitation, damages for any consequential loss or loss of business opportunities or projects, or loss of profits) howsoever arising, whether in contract, tort or otherwise from your use or inability to use of GlobalData, or any of its contents, or from any action or omission taken as a result of using GlobalData provided that nothing in these terms shall exclude or limit our liability for personal injury or death caused by our negligence.
We may provide links to other websites from time to time. These links are provided for your convenience. We do not endorse or take responsibility for the content of those websites, we are not responsible for the availability of them and will not be liable in any way for any loss or damage which you may suffer by your use or inability to use those websites.
If you decide to access linked websites you do so at your own risk. If you purchase any goods or services from a third party or third-party website to which we provide a link your contract for the supply of those goods and services will be with that third party.
Reference to any product or service by GlobalData does not constitute an offer to sell or supply that product or service and does not mean that the product or service is available in all countries or that the name and description of any product in your country will be the same as that included by GlobalData.
TERMS FOR USE OF LUX RESEARCH REPORTS
- Client acknowledges and agrees that LUX will be deemed to be the author of all LUX Reports and, accordingly, LUX will own all right, title, and interest in and to the LUX Reports, including without limitation all copyrights and trade-secrets rights. Client shall include on all copies of the LUX Reports client may use or distribute (as permitted by this Agreement) all LUX proprietary rights notices included or requested by LUX and, at LUX’s request, shall sign any assignments or other documents necessary or appropriate to confirm LUX’s copyright and ownership interests set forth herein.
- Under the terms of this Agreement, Client is granted a license to use the LUX Reports to support internal marketing, strategic planning, and business development functions. This includes the right to quote or paraphrase individual sentences or occasional paragraphs, but not entire pages or chapters. For these purposes “internal” use is distinguished from external use and means uses intended only to serve Client information needs (as distinguished from Client suppliers, affiliates, and customers) and only to be seen by Client officers and employees obligated to treat such information as confidential.
- Client may not distribute, display, promote or otherwise use the LUX Reports or other LUX information or material for any external use, without the prior express written permission from the appropriate LUX representative, which permission shall not be unreasonably withheld. In such cases, Client will provide a copy of the precise proposed wording or document to enable LUX to gauge the full context of the usage, and ensure its accuracy, currency, use in context and proper attribution. External use includes, but is not limited to, the publication, promotion, display or dissemination of advertisements, press releases, white papers, direct mail campaigns, Web site postings and any other materials where they may be viewed by persons who are not Client officers or employees obligated to treat such material as confidential. Client agrees to communicate this policy to all relevant persons.
- Unless expressly stated otherwise, (i) the medium or format in which the LUX Reports are received, or which is specified as the medium for distribution (e.g., Internet, CD-ROM, Lotus Notes, PDF), is the only means by which Client may reproduce and distribute those materials, subject also to any other requirements and restrictions as provided herein, (ii) external usage and distribution privileges are granted in the English language only, and (iii) when Web-posting is permitted, the posted LUX material may be displayed only on Client public web site and may be linked into from other relevant sites, but may not be linked externally to, posted on or displayed from other sites. Without the prior express written permission from LUX, Client may not alter the text, format, or graphic design of any LUX Report in any way, or insert additional material in such a way that it appears to be part of the content provided by LUX.
- Client represents that Client has or will put in place procedures to promote compliance with the above restrictions; that Client will monitor compliance from time to time on Client’s own and as requested by LUX; and that in the event of a breach or alleged breach of these restrictions Client will notify LUX, promptly take reasonable corrective measures (in consultation with LUX) and provide LUX with access and cooperation to enable LUX to audit compliance.
- Absent the prior express written consent of LUX, Client shall not use the name, trademarks, or logo of LUX in promotional materials, publicity releases, advertising, or other external publications or communications, whether oral or written.
- In the event of a breach of any of the foregoing obligations, Client will be required to pay to LUX the amount of $4,500 for each and every such violation.
- Client acknowledges that the only companies eligible to receive LUX Reports through the Service are those having less than $1,000,000 in revenues (for greater certainty revenues do not include venture capital or other types of funding that may be received by the company). Client represents and warrants that a Client is a company with less than $1,000,000 in revenues.
Intellectual property and restrictions on use of content on IBISWorld
All information, text, statistics, data, material, graphics, software (“Content”) on IBISWorld are copyright ©1999-2015 IBISWorld Inc. The Content is protected by United States and international copyright trademark laws. Content on IBISWorld is published in real time, and you must not modify, copy, reproduce, republish, frame, upload to a third party, post, transmit or distribute this Content in any way except as expressly provided for on IBISWorld or expressly authorized in writing by IBISWorld Inc. or an Affiliate.
Strictly on the condition that you keep all Content intact and in the same form as presented on IBISWorld (including without limitation all copyright and trademark notices), you may, using an Industry-standard Web browser, download and view the Content for your use.
Permitted Use, Limitations on Use
You may not republish or distribute any Material, including, without limitation, distribution to your own clients, or do anything else with the Material, which is not specifically permitted in this Agreement.
Per the terms of this agreement, you cannot use IBISWorld reports for academic schoolwork outside of your entrepreneurial ventures.
Disclaimer and limitation of liability
IBISWorld Inc. and its Affiliates warrant that it will use reasonable efforts at all times to ensure that the data and information in IBISWorld is kept fully up to date. IBISWorld Inc. and its Affiliates do not warrant, guarantee or make any representations to you, regarding the use, or the results of the use of the software or any information in IBISWorld , including, but not limited to its correctness, accuracy, reliability, performance or otherwise.
Except as otherwise expressly required by law, IBISWorld Inc. and its Affiliates shall be under no liability whatsoever including consequential loss to you howsoever arising relating to the supply to or the use by you of IBISWorld and information and data contained therein or represented thereby.
Various Federal and State Legislation in the United States may confer rights and remedies on you in relation to the provision by IBISWorld Inc. and its Affiliates of goods or services on the IBISWorld which cannot excluded, restricted or modified (“Non-excludable Rights”). IBISWorld Inc. and its Affiliates do not exclude any Non-excludable Rights but do exclude all other conditions and warranties implied by custom, law or statute.
Under no circumstances (including but not limited to any act or omission on the part of IBISWorld Inc.Inc. or its Affiliates) will IBISWorld Inc. or its Affiliates be liable for any indirect, incidental, special and/or consequential damages or loss of profits whatsoever which result from any use or access of, or any inability to use or access, IBISWorld or any Content. You expressly acknowledge and agree that IBISWorld Inc. or its Affiliates do not exert control over users of the IBISWorld Licensed Product
YOUR ACCESS TO AND USE OF OUR SERVICE ARE AT YOUR SOLE RISK. OUR SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” OUR SERVICE IS FOR YOUR PERSONAL USE ONLY AND WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WE EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
WE ARE NOT AND WILL NOT BE A PARTY TO ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY, WHETHER OR NOT THAT THIRD PARTY’S WEBSITE IS LINKED FROM OUR SERVICE.
Information provided is not financial product advice. Reports contain general information only. They are not intended as financial product advice and must not be relied upon as such. You should consider obtaining independent advice tailored to your specific circumstances before making any financial decisions.
Unless specifically stated in conjunction with particular Material, all Material is copyrighted by us. You have no rights in or to the Material and you may not use any Material other than as permitted under this Agreement.
All trade names, trademarks, service marks and other product and service names and logos on Our Service or in the Material are the proprietary trademarks of their respective owners and are protected by applicable trademark and copyright laws.
TERMS AND CONDITIONS FOR USE OF EUROMONITOR REPORTS
- 1. INTRODUCTION
- 1.1. These Terms and Conditions apply to the Subscriber’s subscription to the Service specified in the attached Key Terms Page.
- 1.2. If any Special Conditions are specified in the Key Terms Page, they shall be deemed to be incorporated into these Terms and Conditions and will override any of these Terms and Conditions to the extent of any conflict with them.
- 1.3. The parties may from time to time renew the Service under a new agreement or keep the existing Agreement in place but add an additional service(s) and/or access to the Service for additional categories of Authorised Users. In either case, the parties will enter into an addendum for this purpose (“Addendum”).
2.1. The following expressions have the following meanings when used in this Agreement:
“Authorised Users” means: (i) the authorised users specified in the Key Terms Page; and (ii) any other person, firm or company whom the Subscriber requests and whom Euromonitor approves, provided such person, firm or company has signed an agreement with Euromonitor which shall include the Conditions of Use.
“Conditions of Use” means the conditions of use for the Service which specify the permitted uses and restrictions on use of the Intelligence as set out in clauses 5 and 6 respectively.
“Intelligence” means all and any part of the reports, datasets, articles, commentaries, profiles, written materials, data or other materials which are made available by the Service.
“Service” means the Euromonitor service specified in the Key Terms Page comprising (i) the Intelligence (ii) the tools and features which can be used to save or export the Intelligence into various formats as available from time to time on Euromonitor’s website and (iii) research support available to Authorised Users.
“Subsidiary” of a party to this Agreement shall mean any corporation of which hundred percent of the voting stock is directly or indirectly owned or controlled by that party; and “Subsidiaries” shall be interpreted accordingly.
2.2. Terms given defined meanings in the Key Terms Page (e.g. “Start Date”) will have the same meanings when used in these Terms and Conditions.
3.1. This Agreement, comprising the Key Terms Page and these Terms and Conditions, will come into force on the Start Date and continue until the End Date.
4. ACCESS TO THE SERVICE
4.1. The Subscriber and its Authorised Users shall be granted access to the Service via a Euromonitor website.
4.2. The Subscriber and its Authorised Users shall be granted access to the Service on or after the Start Date and as soon as Euromonitor has received two copies of this Agreement duly signed and dated by the Subscriber. Any other Authorised User shall be granted access from such date and for such period as may be agreed between the parties.
4.3. Euromonitor reserves the right to use appropriate technical protection measures to control access and/or to detect unauthorised use of the Intelligence in accordance with this Agreement provided that no such measure shall adversely affect the rights of the Subscriber or its Authorised Users under this Agreement.
5. AUTHORISED USE OF THE INTELLIGENCE
5.1. Euromonitor hereby permits Authorised Users to use the Service during the period of this Agreement in accordance with the permitted uses set out in clause 5.2, subject to the restrictions on use set out in clause 6.
5.2. Each Authorised User may use the Service during the term of this Agreement for the following purposes in connection with the Subscriber’s business and in the following ways:
5.2.1. To browse and search the Service and to display the Intelligence on screen.
5.2.2. To make and save digital copies extracted from the Intelligence in any of the formats supported by the Service and to access and retrieve such copies.
5.2.3. To print out copies of the Intelligence and to make photocopies of such print-outs for use in the course of performing his or her duties for the Subscriber.
5.2.4. To make the digital copies and photocopies referred to in clauses 5.2.2 and 5.2.3 available to other Authorised Users.
5.2.5. To take limited extracts from the Intelligence and incorporate them into new reports or other original material written by the Authorised User in the course of performing his or her duties and to share those reports or other materials with other Authorised Users for use within the Subscriber only.
5.2.6. To create new documents, presentations or other new materials (“New Materials”) which incorporate limited extracts from the Intelligence and to distribute those New Materials to third parties for use by those parties only in the course of their business. This creation and distribution right is subject to three conditions: (i) that the quantitative amount of any such extract from the Intelligence which is reproduced in any New Material that is distributed to a third party does not exceed the “Permitted %” (see below) of the total quantity of that New Material (ii) that any such limited extracts are accurately reproduced in the New Material, and any conclusions which appear in the New Material and which are based on or refer to such extracts, are accurate, fair and reasonable; and (iii) that New Materials are not used in a way that could be deemed competitive with Euromonitor or substitutable for its products or services. “Permitted %” means ten (10) %. Euromonitor may agree to the Subscriber’s written request to increase the Permitted % for a specific purpose, such agreement will be notified in writing and will not be unreasonably withheld.
5.2.7. All materials containing extracts of the Intelligence shall attribute the extracted Intelligence to Euromonitor International in the following form: “Source: Euromonitor International”.
6. RESTRICTIONS ON USE OF INTELLIGENCE
6.1. Except as specifically provided elsewhere in this Agreement, the Subscriber shall not knowingly permit anyone other than Authorised Users to use the Intelligence.
6.2. Except as mentioned in clause 5.2.6, neither the Subscriber nor any Authorised Users may redistribute or make available to third parties Intelligence which any of them extract from the Service.
6.3. Any form of use of the Intelligence beyond that specified in clause 5.2 (including, but not limited to making it available via an intranet or extranet or to or via a mobile device) shall require Euromonitor’s prior written consent.
6.4. Neither the Subscriber nor any Authorised User may remove, obscure or modify any copyright or other notices included in the Intelligence nor any metadata or digital rights management intelligence that may be associated with the Intelligence.
6.5. The Subscriber and Authorised Users shall use all reasonable endeavours to permanently delete all stored copies of the Intelligence within 60 days following termination or expiry of this Agreement. However, this will not prevent any continued use of any New Materials as defined in clause 5.2.6 which were compiled before termination of this Agreement and which contain extracts from the Intelligence.
7. PROVISIONS ABOUT EUROMONITOR’ S PERFORMANCE
7.1. Support. Euromonitor will provide telephone training and assistance for all Authorised Users from its international offices during Euromonitor’s normal business hours.
7.2. Performance. Euromonitor will use its reasonable endeavours to make the Service available to the Subscriber and to Authorised Users at all times save for routine or essential maintenance, and to restore access to the Intelligence as soon as possible in the event of an interruption or suspension of the Service.
7.3. If the Service becomes unavailable for any reason Euromonitor will endeavour to supply Intelligence manually by email, fax, or similar means. If the Service remains unavailable for more than 24 hours and if the unavailability is not beyond Euromonitor’s control, access under this Agreement will be extended for a period of time equal to the period of unavailability. The Subscriber may, as an alternative remedy for the unavailability of the Service, request in writing that Euromonitor instead provides a pro rata refund of the Fee taking into account the period of unavailability in excess of 24 hours. Euromonitor’s agreement to such request shall not be unreasonably withheld or delayed on condition that the Subscriber makes its request within a reasonable time of the occurrence of the unavailability.
7.4. Euromonitor reserves the right to conduct essential maintenance, software upgrades and other works necessary to maintain the efficient provision of the Service. Where such works result in the Service becoming temporarily unavailable, Euromonitor will provide at least two weeks’ notice to Subscriber and shall wherever possible carry out works on Saturdays or Sundays (GMT).
7.5. Changes to the Intelligence and/or the Service. Euromonitor reserves the right to make changes from time to time to all or any parts of the Intelligence and/or the Service for any reason provided that the functionality and performance of the Service, and the overall content of the Intelligence, shall not be substantially and adversely affected from the Subscriber’s perspective by any such changes. The changes referred to in this clause may take the form of the addition, removal, correction or editing of the Intelligence or other content, the migration of the Intelligence or the Service to a different format or location and/or changes to the tools or other features and functionalities of the Service.
8. SUBSCRIBER’S OBLIGATIONS
8.1. Compliance with authorised use. The Subscriber shall (i) use its best endeavours to ensure that Authorised Users access and use the Intelligence only in accordance with the Conditions of Use, details of which will be made available to Authorised Users upon accessing the Service, and in accordance with any other applicable provisions contained in this Agreement; and (ii) take all reasonable steps within its power to ensure that no person, firm or company other than an Authorised User accesses or uses the Service. For the avoidance of doubt, acceptance by any Authorised User of the Conditions of Use shall not relieve the Subscriber of any of its obligations and responsibilities under this Agreement.
8.2. Protection from unauthorised use. In the event of any unauthorised use of the Service Euromonitor may, at its discretion and without prejudice to any other remedy, suspend or terminate access by such method as it deems appropriate. In the case of suspension, this will continue until Euromonitor is satisfied that the unauthorised use will not recur.
8.3. Maintaining confidentiality of access passwords. Where access to the Intelligence is to be controlled by use of passwords, the Subscriber shall use reasonable efforts to ensure that Authorised Users do not divulge their identification numbers and passwords to any third party. The Subscriber will use all reasonable endeavours to ensure that any unauthorised disclosure or use of passwords is reported to Euromonitor as soon as the Subscriber becomes aware of it.
9.1. Euromonitor shall invoice the Subscriber in accordance with the Subscriber’s Invoice Details as specified in the Key Terms Page.
9.2. The Subscriber shall pay the Fee in accordance with the payment terms specified in the Key Terms Page.
9.3. Euromonitor reserves the right to increase the Fee on a fair and equitable basis if there is any material increase in the number of Authorised Users compared to the number of Authorised Users at the time of signature of this Agreement, by way of example only, as a result of an increase in the size and/or composition of the Subscriber and/or its Subsidiaries following from a merger, takeover or other corporate reorganisation affecting the Subscriber. Euromonitor shall give the Subscriber at least sixty (60) days prior written notice of any proposed adjustment to the Fee, including details of the assumptions upon which the existing and adjusted Fee are based. Notwithstanding the foregoing, the Subscriber may, by thirty (30) days written notice, terminate this Agreement with effect from the date any such adjustment becomes effective if such adjustment is unacceptable to the Subscriber.
9.4. Invoices raised for organizations domiciled in New York, New Jersey, Texas, and Connecticut, will include applicable sales taxes. These will be clearly identified as a separate line item. Invoices raised for all other organizations will be exclusive of any applicable sales and use taxes which will be the responsibility of Subscriber to self-assess and pay.
9.5. lf the Subscriber fails to pay the Fee when due it shall pay interest to Euromonitor on such sum from the due date until the date of actual payment at an annual rate of three (3) % above the base lending rate of the Bank of Scotland from time to time in effect during such period.
10. WARRANTIES & INDEMNITIES
10.1. Euromonitor warrants to the Subscriber that:-
10.1.1. It has the right to license the rights granted under this Agreement and that it has obtained any and all necessary permissions from third parties to license the Intelligence.
10.1.2. The Intelligence contained within the Service, and the tools and other features available within the Service, will conform in all material respects to their respective descriptions as set out in the specification or proposal provided to the Subscriber.
10.1.3. It will use reasonable skill and care in the provision of the Service and the Intelligence.
Although Euromonitor makes every effort to ensure that it corrects faults in the Intelligence of which it is aware, it does not warrant that the Intelligence will be accurate, up-to-date or complete as the accuracy and completeness of the data and other content available in respect of different parts of the Intelligence will vary depending on the availability and quality of sources on which each part is based. Furthermore, Euromonitor does not warrant that the Intelligence or the Service will be fit for any particular purpose(s) for which they are used as it does not have any knowledge of, nor control over, those purposes.
10.2. Subject to clause 10.3, Euromonitor shall indemnify and hold the Subscriber and Authorised Users harmless from and against any damages, awards or penalties, including proper and reasonable legal fees, which arise from any claim by any third party of an alleged infringement of copyright or any other intellectual property right arising out of the use of the Intelligence by the Subscriber or any Authorised User in accordance with the terms of this Agreement.
10.3. The indemnity contained in clause 10.2 shall be subject to the following provisions:-
10.3.1. It will not apply to any claim which relates to any modification, abstraction or other change made to the Intelligence by an Authorised User.
10.3.2. The Subscriber shall immediately notify Euromonitor on receipt of any allegation of infringement and shall make no admission or take any action without Euromonitor’s express written authority.
10.3.3. Euromonitor shall have the sole right to deal with any such claim and to defend the legal proceedings in respect of such claims at its own expense, including the right to compromise or settle or otherwise dispose of any such claim provided that Euromonitor shall not bring the Subscriber’s name into disrepute.
10.3.4. The Subscriber shall provide, at Euromonitor’s expense, such assistance in investigating and defending such claims as Euromonitor may reasonably request. This indemnity shall survive the termination of this Agreement.
11. EXCLUSIDNS & LIMITATIDNS OF LIABILITY
11.1. Euromonitor does not limit or exclude any liability which cannot be limited or excluded by applicable law nor does it exclude any liability under the indemnity contained in clause 10.2.
11.2. The sole warranties given by Euromonitor are those contained in clause 10.1. Euromonitor excludes any and all other warranties, conditions, or representations relating to the Intelligence and/or the Service, whether expressed, implied, oral or written, and includi g any which may be contained in any specification or proposal provided to the Subscriber.
11.3. If Euromonitor fails or is unable to comply with its obligations as regards accessibility and performance as set out in clause 7, and Euromonitor is unable to remedy the problem within a reasonable period, the Subscriber’s sole remedy for such failure shall be to an extension of the term of subscription or refund on a pro rata basis in accordance with clause 7.3.
11.4. Subject to clause 11.1, neither party shall be liable for (i) any loss of: data; use; reputation; goodwill or opportunity; (ii) any loss of or failure to realise expected profit, revenue, savings or any other form of pure economic loss, whether any such loss is direct or indirect; or (iii) any form of indirect, special, incidental, punitive or consequential loss or damages, and, in each case, however arising.
11.5. Subject to clause 11.1, Euromonitor shall not be liable for any loss suffered by the Subscriber, or by any client or customer of the Subscriber, as a direct or indirect result of its use of any of the Intelligence or of making any business decision, or refraining from making any such decision, based wholly or partly on any data, expression of opinion, statement or other information or data contained in the Intelligence.
11.6. Except as mentioned above in this clause 11, Euromonitor’s maximum aggregate liability to the Subscriber for all claims (whether arising in contract, tort, breach of statutory duty or otherwise) made in any year of this Agreement, whether in respect of a single event, series or connected events or of unconnected events, shall not exceed the total amount of Fees paid by the Subscriber under this Agreement in the year in which the claim is made.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. Euromonitor reserves all its rights in the Intelligence in respect of copyright, database right, trade mark rights or otherwise.
12.2. The Subscriber shall at the request and expense of Euromonitor do all such things as may be reasonably required to assist Euromonitor in taking or resisting any legal proceedings in relation to any infringement of any such rights.
13.1. Both parties acknowledge that they or their employees may, in the course of performing their responsibilities under this Agreement, be exposed to or acquire non-public information which is proprietary to or confidential to either party or third parties to whom they owe a duty of confidentiality (“Confidential Information”). Both parties agree to hold Confidential I nformation in strict confidence and not to disclose the same to third parties or to use such Confidential Information for any purpose whatsoever other than the provision of services to the Subscriber as contemplated by this Agreement and to advise each of its employees who may be exposed to Confidential Information of their obligations to keep such information confidential. This provision shall survive termination of the Agreement.
13.2. Euromonitor agrees that it will not, without the prior written consent of the Subscriber, represent, directly or indirectly, that any product or any service provided by Euromonitor has been approved or endorsed by the Subscriber. This provision shall survive termination of the Agreement.
14. TERMINATION & EFFECT OF TERMINATION
14.1. Euromonitor may terminate this Agreement immediately by giving written notice to the Subscriber if the Subscriber fails to pay any sum due under this Agreement when it falls due.
14.2. Either party may terminate this Agreement immediately by giving written notice to the other in any of the following events:
14.2.1. If the other party commits any breach of any of the terms and conditions of this Agreement and fails to remedy that breach (if capable of remedy) within 30 days after notice from the other party giving full particulars of breach and requiring it to be remedied; or
14.2.2. If the other party enters into liquidation, whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation with the prior approval of the other party), or compounds with or makes any arrangements with its creditors or makes a general assignment for the benefit of its creditors, or has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of its undertaking or assets, or if it ceases or threatens to cease to carry on its business, or makes any material change in its business, or if it suffers any analogous process under any foreign law.
14.3. Upon termination or expiry of this Agreement, online access to the Intelligence by the Subscriber and Authorised Users shall be terminated.
14.4. Termination shall not affect any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination.
15.1. Assignment. Neither party may assign or transfer all or parts of its rights or obligations under this Agreement without prior written consent of the other, such consent not to be unreasonably withheld or delayed.
15.2. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing its obligations under this Agreement if such delay or default is caused by conditions beyond its control including but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
15.3. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties in relation to its subject matter and supersedes and extinguishes all previous drafts, agreements, undertakings, representations, warranties and proposal documents of any kind, whether in writing or oral, between the parties relating to the subject matter of this Agreement. The parties agree that any terms contained in any document issued by the Subscriber to Euromonitor following signature of this Agreement (including but not limited to a purchase order or invoice) shall not vary or supplement this Agreement or any Addendum or otherwise bind the parties unless those terms are set out in the Special Conditions section contained in an Addendum which has been signed by the parties.
15.4. No representations. Each party acknowledges that in entering into this Agreement it has not relied and is not relying on any representations or warranties (whether implied or otherwise) other than those expressly set out in this Agreement and the parties irrevocably and unconditionally waive any right they may have to any remedy in respect of any other such representation or warranty except in the case of fraud.
15.5. Modifications. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorised representatives of Euromonitor and the Subscriber.
15.6. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
15.7. Waiver. Waiver of any provision in this Agreement shall not be deemed a waiver of any other provision in this Agreement, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
15.8. No third party rights. No provision of this Agreement shall be enforceable by any person or individual other than the parties to this Agreement.
16. GOVERNING LAW AND DISPUTE RESOLUTION
16.1. This Agreement will be governed by and construed in accordance with applicable U.S. federal law and the laws of the State of Illinois, without regard to conflict of law principles.
16.2. In the event of any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement, which are not affected by the dispute.
16.3. Arbitration. All disputes arising out of the execution, interpretation or performance of this Agreement shall be decided through binding arbitration by private arbitrators. Arbitration shall be conducted in Chicago, Illinois. The arbitrators shall use the Commercial Arbitration Rules of the American Arbitration Association, and the arbitrators are authorised to award injunctive relief.
16.4. Nothing in this clause or in the Rules of the American Arbitration Association shall prevent either party from applying to the Court of any jurisdiction for such provisional or protective measures as are available under the laws of that jurisdiction.
17.1. All notices, requests, consents and other communications which are required or permitted hereunder shall be in writing and shall be deemed given (a) when delivered in person at the time of such delivery or by telecopy to the fax number shown in the Key Terms Page with confirmed receipt of transmission at the date and time indicated on such receipt; or ( b) when received if given by an internationally recognised express courier service to the address specified in the Key Terms Page; or (c) when received if given by email to the address specified in the Key Terms Page; provided, however, any notices declaring a breach of or terminating this Agreement shall be given only in person or by an internationally recognised express courier service. Notice of change of address or fax number shall be given in the same manner as other communications.