1.1 Defined terms shall have the meaning set out below, in the T&Cs.
Data Protection Legislation: means (i) the Data Protection Act 2018: (ii) The General Data Protection Regulation (EU) 2016/679 (GDPR); (iii) the California Consumer Privacy Act 2018 (CCPA); and (iv) any other data protection legislation applicable to the Services;
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, goodwill, designs, database rights, rights to use and all other intellectual property rights, whether registered or unregistered which subsist or may subsist in any part of the world;
PRO Platform: our proprietary online tool, which provides access to the Subscribed Data;
Services: has the meaning given to it in the Cover Sheet;
Subscribed Data: any collected information, data, statistics, report or content for the Services which can be accessed via the PRO platform or provided in exports for third party platforms during the Subscription Period;
you or your: the party entering into this Agreement
2.1 This clause 2 shall apply where you otherwise access the PRO Platform for the Services.
2.2 Subject to the terms of this Agreement, you are granted a non-exclusive, non-transferable, non-sublicensable license to use the GWI Platform to access the Subscribed Data during the Subscription Period.
2.3 You may only use the Subscribed Data for your own internal purposes and/or for the purposes of your Influencer Activities provided always that;
i. the use or analysis of the Subscribed Data shall not be for the benefit of any other third party without our prior written approval
ii. is used by you only in the year which the Subscribed Data is published.
2.4 If you quote from the Subscribed Data at any time as expressly permitted by clause 2.3, then the following accreditation (or such other notice or accreditation as we may reasonably notify to you from time to time) must appear in all copies of materials featuring such Subscribed Data: “GWI [data set, quarter number and year]”.
2.5 Except as expressly permitted by this Agreement or otherwise agreed with us in writing, you are not permitted to:
i. copy, modify, duplicate, frame, mirror, download, display, transmit or distribute the Subscribed Data, in whole or in part, by any form of media, means or process;
ii. provide, disclose, license, lease, assign, supply, copy, distribute or commercially exploit the Subscribed Data in whole or in part to any third party;
iii. provide, disclose, supply, copy, distribute or sell tables, reports or presentations or any other materials using or containing the Subscribed Data to any third party;
iv. provide, disclose, supply, copy, distribute or sell raw Subscribed 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 or hard copy;
v. assist any third parties in obtaining access to the Subscribed Data;
vi. refer to or present the Subscribed Data in whole or in part as your own research, and/or provide, supply or sell consultancy services based solely on analysis of the Subscribed Data without our prior written permission; or
vii. use the Subscribed 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 Subscribed Data with such other databases, without our prior written consent.
2.6 NOTWITHSTANDING THE FOREGOING, WE DO NOT WARRANT THAT THE PROVISION OF THE PRO PLATFORM, SUBSCRIBED DATA OR ANY PART OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE; NOR THAT THE SUBSCRIBED DATA WILL BE SUITABLE TO MEET YOUR INTENDED OBJECTIVES. THE SUBSCRIBED DATA AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PRO PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE.
2.7 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 PRO Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities and we shall in no way be liable for your use of such communications facilities.
2.8 You shall only use the PRO Platform in a fair and reasonable way and we shall be entitled to suspend your access to the PRO Platform if we determine in our sole reasonable discretion that your use of the PRO Platform is materially and adversely affecting the performance, functionality or value of the PRO Platform and/or Subscribed Data.
2.9 We shall be entitled at any time to vary or amend or modify the specification used in compilation of the Subscribed Data including, without limitation, any questionnaire used by us. We reserve the right to change any survey, data coverage, market coverage, sample size and access details.
3.1 In the event of any unauthorised use of the Services, and without prejudice to our other rights and remedies, we reserve the right to charge you additional fees based on the reasonably estimated additional use by any unauthorised users for access to and use of the relevant Services.
4.1 You warrant that the representative who enters into the Agreement on your behalf is authorised to do so and you shall indemnify us for any loss suffered if the signatory is not so authorised.
4.2 You are responsible for keeping secure any password, user name or other information required for accessing or using the PRO Platform and/or Subscribed Data and undertake to change any password in line with any instructions from us. You must keep the security information confidential and not disclose these details to any third party.
4.3 We have the right to disable your account, if we reasonably believe that you have failed to comply with any of the provisions of the Agreement.
4.4 You shall use all reasonable endeavours to prevent any unauthorised access or use of the Services and in the event of any such unauthorised access or use you must promptly notify us.
4.5 You must not misuse our Site or the Services, including 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 or in any way attack our Site, the PRO Platform or any server, computer or database connected to our Site and/or the Services.
4.6 You shall comply with all applicable laws, regulatory guidance and industry codes (including all such laws, guidance and codes relating to marketing and advertising) in respect of any promotion and/or use of Subscribed Data by you in connection with your Influencer Activities. You hereby agree to indemnify and keep indemnified on demand and hold harmless us and our directors, employees and agents from and against any and all losses, demands, claims, damages, costs and/or expenses and liability arising out any breach of this clause 4.6.
5.1 The term if this Agreement shall be specified on the Cover Sheet from the date of commencement of this Agreement.
5.2 We may terminate all or part of our Agreement with you at any time upon giving you written notice.
5.3 We may suspend our provision of the Services in any circumstances where we would otherwise have the right to terminate the Agreement.
5.4 Upon termination of the Agreement:
i. your license rights will terminate, and you must immediately cease all use of the Services;
ii. you will no longer be authorised to access the PRO Platform;
6.1 You acknowledge and agree that we own and retain all Intellectual Property Rights, title and interest in the PRO Platform, the Site, the Subscribed Data and the Services and nothing in this Agreement shall act to assign any of our Intellectual Property Rights in the same.
6.2 You acknowledge that you shall have no rights in or to the Services, Subscribed Data or any of our Intellectual Property Rights other than the express rights granted to you in this Agreement.
6.3 You acknowledge that "GWI", “GlobalWebIndex” and "Global Web Index" are trade marks of Trendstream Limited.
6.4 We warrant to you that the PRO Platform and its usage by you in accordance with this Agreement, shall not infringe the rights (including the Intellectual Property Rights) of any third party and unless otherwise agreed with you.
6.5 You irrevocably grant to Company a non-exclusive, worldwide, royalty free licence in perpetuity to use, and authorise others to use, all content published by you as part of your Influencer Activities which includes or refers to Subscribed Data, the Company or the trade marks of the Company.
7.1 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of any:
i. breach of the Agreement (or any part of it);
ii. use made by you of the Services and the Subscribed Data or any part thereof; and
iii. representation, misrepresentation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement (or any part of it).
7.2 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.
7.3 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 and/or the Services.
7.4 You are solely responsible for any decisions you may take or decide not to take arising out of or in connection with the Services and Subscribed Data and/or for results obtained from their use and for conclusions drawn from such use. We shall have no liability whatsoever to you as a result of any action, claim, loss, damages or expenses, direct or consequential, suffered by you due to your reliance on or use of the Data or other information obtained via the Site or Services.
7.5 Nothing in the Agreement excludes or limits our liability for:
i. death or personal injury caused by our negligence;
ii. fraud or fraudulent misrepresentation; or
iii. any liability which cannot be excluded or limited under applicable law.
7.6 Subject to clause 7.5, 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.
7.7 To the fullest extent permitted by law, our total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising) misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connections with the performance (or non-performance) of this Agreement and the Services provided be limited to £10,000.
7.8 To the fullest extent permitted by law, you are responsible for your use of the Services and the Subscribed Data. You hereby agree to indemnify and keep indemnified on demand and hold harmless us and our directors, employees and agents from and against any and all losses, demands, claims, damages, costs and/or expenses and liability arising out of any third party claims relating to your use or misuse of the Services and Subscribed Data, any breach, non-performance or non-observance of your obligations, warranties, representations and undertakings on your part.
7.9 This clause 7 shall survive termination of the Agreement.
8.1 In this clause 8, the following terms shall have the meanings given to them in the GDPR: controller, data subject, personal data, personal data breach, and process and processed shall be construed accordingly.
8.2 With regard to the personal data being processed in relation to the Services, each party acknowledges and accepts that it is each a controller in its own right for such personal data and each party shall:
i. comply in all respects with the Data Protection Legislation;
ii. ensure that it has a lawful basis on which to process and share the personal data with the other;
iii. ensure its privacy notice contains sufficient information to enable it to lawfully transfer personal data to the other party.
8.3 Each party shall notify the other without undue delay upon becoming aware of a personal data breach affecting the personal data processed in relation to this Agreement and shall provide the other party with sufficient information to allow it to meet any obligations to report the personal data breach to affected data subjects and/or a supervisory authority under the Data Protection Legislation.
9.1 In this clause 9 the terms consumer, personal information, sale and business have the meanings given to them in the CCPA.
9.2 This clause 9 shall only apply to the extent that you are established within California and/or to the extent that we process personal information relating to consumers located in California on your behalf in the course of our business in providing the Services.
9.3 We shall process personal information in compliance with the CCPA and shall:
i. only use, retain and disclose personal information solely and exclusively for the purposes for which the personal information, or access to it, is provided in the course of providing the Services to you; and
ii. not use, sell, rent, transfer, distribute, or otherwise disclose or make available for sale the personal information for our own purposes or for the benefit of any third party.
10.1 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 provision shall be deemed separate from its surrounding provisions which shall remain in force.
10.2 Failure by us to exercise or enforce any right under the Agreement shall not be deemed to be a waiver of that right.
10.3 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, such consent not to be unreasonably withheld.
10.4 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.
10.5 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation 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.
10.6 The Agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the Services. 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.