1.1. “Additional Service” means any service in addition to the provision of the Service requested by the Purchaser from time to time for which the Company is qualified to perform and which it may by agreement in writing perform, in addition to the Service.
1.2. “Authorized Users” means (a) in the case of the Service when provided in electronic format, one or more employees of the Purchaser or any Sub-Contractor(s) of the Purchaser, as identified in the Contract, who (i) either have been issued a password or other authentication by the Company, or have provided the Company with the IP address of each terminal from which access to the Service will be gained and (ii) physically report to and work at the Site or work at Remote Locations via a Secure Network, or (b) in the case of Services provided in print format, are employees of the Purchaser.
1.3. “Company” means Innova Market Insights B.V., a private company, incorporated under the laws of the Netherlands, having its principal place of business at Velperweg 18, 6824 BH Arnhem, the Netherlands, registered in the Trade Registry under number 09128938.
1.4. “Conditions” means the standard terms and conditions for the provision of the Service set out herein and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Purchaser.
1.5. “Consents” means any consent, license, approval, permit or other authorization whatsoever required prior to the use of the Service by the Purchaser.
1.6. “Content” means information comprised in the Service.
1.7. “Contract” means a contract in writing, governing the provision of the Service by the Company to the Purchaser, and containing, among other things, such details as the name(s) and address(es) of the Purchaser, the consideration for the provision of the Service paid by the Purchaser to the Company and the Term or period of time during which the Company shall make available or license the Service to the Purchaser. When these Terms and Conditions are appended to the Contract, then these Terms and Conditions shall form part of that Contract.
1.8. “Intellectual Property” means all data located on the Innova Database, patents, trademarks, service marks, registered designs, applications for any of the foregoing, trade and business names, unregistered trademarks and service marks, know-how, copyright, rights in designs, inventions, database rights, moral rights, rights under licenses and consents in relation to any such rights and rights of the same or similar effect or nature in any part of the world.
1.9. “Intellectual Property Rights” means all Intellectual Property used or required to be used by the Company and/or the Purchaser (as the case may be).
1.10. “Party” or “Parties” means one or more of the Company and the Purchaser, as appropriate.
1.11. “Purchaser” means the person(s), association, business, limited liability company, partnership or incorporated company to which the Service is provided by the Company pursuant to the Contract, and specifically excluding any assigns, affiliates, successors or subsidiaries of Purchaser.
1.12. “Remote Location” means a particular actual location(s), and not a Site, where a single Authorized User connects to or uses the Service neither among other Authorized Users nor employees of the Purchaser as approved in writing by the Company, prior to access by any Authorized User to the Service from such location(s).
1.13. “Secure Network” means a network (whether a designated network or a virtual network on the internet) operated and regulated by the Purchaser, accessible to Authorized Users only with the prior approval of the Purchaser, requiring identity to be authenticated at the time of login and periodically thereafter consistent with then current best practice & procedure.
1.14. “Site” means the specific IP address by which the Purchaser identifies itself for the purposes of access to the Database at that Site, or more generally the actual location of the Purchaser as specified in the Contract.
1.15. “Sub-Contractor” means an independent contractor engaged by the Purchaser who (a) is approved in writing by the Company prior to accessing the Service, (b) is subject to obligations of confidentiality no less stringent than are placed upon the Purchaser under this Contract, and (c) exclusively, only uses the Service on behalf of, and while providing services to the Purchaser.
1.16. “Service” means the Company’s Database (the “Innova Database” or the “Database”) being an on-line internet based resource provided by the Company to the Purchaser, on execution of the Contract by both the Company and the Purchaser. The Database is sold to the Purchaser on a per site basis and is a means by which the Purchaser can search the data contained therein.
2.1. These Terms and Conditions shall apply to and shall be incorporated in the Contract between the Company and the Purchaser for the provision of the Service unless otherwise specifically agreed between the Parties.
2.2. Subject to the Company obtaining requisite consents if any the Company shall provide the Service to the Purchaser for the term agreed between the Company and the Purchaser (the “Term”) under the Contract and thereafter until termination in accordance with the provisions in that regard contained herein.
3.1. The Purchaser shall be responsible to the Company for ensuring the accuracy of any information provided by it for inclusion in the Contract (including any applicable specifications) submitted by the Purchaser, and for giving the Company any necessary information required by it to perform the Service within sufficient time to enable the Company to perform the Service.
3.2. The Company reserves the right to make any changes in the specifications of the Service or to the data contained in the Database, which are required to conform with any applicable law or statutory requirement. The Company reserves the right to amend, vary, remove, increase or decrease the data on the Database at any time and without notice to the Purchaser save that the Database shall not be substantially transformed after the date of the Contract in such a manner as would result in the quality of the Service being significantly less than was provided to the Purchaser upon entering into the Contract.
3.3. Any typographical, clerical or other error or omission in any sales or marketing literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3.4. In keeping with the Company’s IP entitlements and rights, the Purchaser will: (a) prior to entering into the Contract, make commercially reasonable endeavors to provide the Company with all the IP addresses of the Licensee’s computers and/or networks where applicable, from which the Service may be accessed, in order to allow the Company to restrict access as required by the Company, to such IP addresses; (b) upon receipt of notice in that regard from the Company, to immediately investigate the occurrence of any unusual downloading activity by any Authorized User, and immediately report back to the Company outlining in detail what had occurred.
4.1. The Company shall obtain and maintain in compliance, with the reasonable assistance of the Purchaser, all Consents, if any, and any conditions attaching thereto required by the Company and its personnel to perform the Service.
5.1. Prior to the Company providing access to the Database, the Purchaser shall outline in writing to the Company, the individuals within its business that will have access to the Database and identify those individuals by IP address. The Purchaser is purchasing access to the Database in accordance with the terms of the Contract and it is not per se “purchasing the database”. Accordingly, any downloading of the Database in whole or in part (save and except for information downloaded as a result of performing a search) by the Purchaser, by electronic means or otherwise, is strictly prohibited under these Terms and Conditions. For the duration of the Contract, there shall be no limit on the number of searches that the Purchaser can perform on the Database.
5.2. A limit of 10.000 products can be downloaded per account/user. The limit for reports is 50 per account/user per year. This can be adjusted after consultation between the Parties.
5.3. Any data downloaded from the Database and then used by the Purchaser in a presentation or other form of dissemination must carry the Innova Database logo, and shall not be used without the prior written approval of the Company.
5.4. The Company shall provide the Service in accordance with the terms of the Contract and with reasonable care and skill; provided, however, it is hereby acknowledged by the Purchaser that all descriptions and particulars furnished in quotations, price lists, literature or any other document issued by the Company are for the purpose of general information only and do not constitute a warranty or representation as to quality, performance, suitability for purpose, dimension, workmanship, freedom from defects or any other attribute. The Company reserves the right to make such changes from time to time in the specifications of the Service as the Company sees fit; provided that in the event the specifications are changes such that functionality is reduced such that it materially affects Purchaser’s use of the Service, Purchaser may terminate the Contract without liability.
5.5. Notwithstanding that the Company shall provide the Purchaser and/or its licensed Sub-Contractors, agents and respective personnel with access to the Database in order to avail itself of the Service, the Purchaser shall not be deemed to have been granted or to be entitled to any legal, equitable or other estate or interest in the Database by virtue of the access rights granted to the Purchaser hereunder. Save as set out herein, the Company shall be responsible for ensuring the Database complies with all applicable laws relating thereto and shall be responsible for all costs related to or in connection with such compliance.
5.6. Upon receipt of any notice regarding any potential inaccuracy with the Service, the Company will make its reasonable efforts to (a) investigate any such potential or actual inaccuracy and (ii) if necessary, rectify and correct any actual inaccuracy. To the extent that the Service permits such a commentary, the Company will provide a commentary regarding and clarifying the inaccuracy to the Purchaser and the Purchaser shall then attach the said commentary to the inaccuracy.
5.7. In using the Database, the Purchaser shall comply with any technical limitations in the Database software that only allow one to use it in certain ways. The Purchaser shall not:
– work around any technical limitations in the Database-software;
– reverse engineer, decompile or disassemble the Database-software;
– use components of the Database software to run applications not running on the software; or
– make copies of the Database software.
6.1. During the Term of the Contract and for one year after any termination of the Contract, the Purchaser will not, without the prior written consent of the Company, either directly or indirectly, on the Purchaser’s own behalf or in the service or on behalf of others, solicit or attempt to solicit, divert or hire away any person employed by the Company or any customer of the Company
7.1. For the Term of the Contract, the Company shall grant to the Purchaser a non-exclusive, non-transferable, non-assignable revocable license (without the right to sub-license) to use the information contained in the Database (and where required in that respect the Company’s IP) in order to conduct searches but for no other purpose. Under no circumstances shall the Purchaser be permitted to assign, sub-license to or grant a sub-license of the Service, directly or indirectly, to any of the Company’s competitors.
7.2. The Purchaser is authorized to use the Database for its own internal research purposes only, and may not publish, reproduce, transmit, or otherwise make available or sell any of its contents, whether in hard-copy, electronically transmitted or any other form except with the prior approval in writing of the Company.
7.3. Under no circumstance shall the Purchaser use data downloaded from the Database either on its own or in connection with other information so as to create a consolidated file to be offered online or in any other form of media to any third parties.
7.4. The Purchaser shall take all necessary steps to ensure that any persons at the Site having access to or using the Database are made aware of the restrictions imposed by these Terms and Conditions and the Contract.
7.5. Save as otherwise provided herein, designs, drawings, specifications, instructions, manuals and other documents created, produced or commissioned by the Company and relating to the Database and to the carrying out of the Service and copyright therein and all Intellectual Property Rights that are owned by the Company (“Company IP”) are and shall remain the property of the Company.
7.6. (a) For the term of the Agreement, the Company shall grant to the Purchaser a non-exclusive, non-transferable, non-assignable revocable license (without the right to sub-license) to use the information contained in the Service (and where required in that respect the Company’s Intellectual Property Rights) for purposes related to this Agreement but for no other purpose. Under no circumstances shall the Purchaser be permitted to assign, sub-license to or grant a sub-license of the Service.
(b) The Purchaser is authorized to use the Service for its own internal purposes only, and may not publish, reproduce, transmit, or otherwise make available or sell any of its contents, whether in hard-copy, electronically transmitted or any other form except with the prior approval in writing of the Company.
(c) Under no circumstance shall the company use data downloaded from the Service either in its own or in connection with other information so as to create a consolidated file to be offered online or in any other form of media to unaffiliated third parties.
(d) The Purchaser shall take all necessary steps to ensure that any persons having access to or using the Service by or through the Purchaser are made aware of the restrictions imposed by this Agreement.
(e) Unless explicitly permitted under the terms of this Agreement, the Company disallows the Purchaser to:
(i)systematically make large quantities of copies, electronic or otherwise, of the Service for any purpose; or
(ii)locate-on, input or distribute any content of the Service on any electronic network or otherwise, including without limitation, the internet and the world wide web, or publish, broadcast, or display any content in public.
7.7. The Purchaser hereby indemnifies and holds the Company harmless against any and all liability, damage, loss, cost or expense directly or indirectly arising from or in connection with Purchaser’s misuse of a) of the Company’s Intellectual Property Rights or b) the Database authorized hereunder, in breach of this Contract, up to a maximum aggregate liability of €1.000.000. Any indemnification hereunder is provided that any claims are not related to the negligence or intentionally wrongful conduct of Company, and provided further that Company cooperates fully with Purchaser in the investigation and defense of such claims, and that Purchaser has control of, and discretion in, all phases of the defense and/or disposition of such claims.
7.8. Although the Company has used reasonable efforts to ensure the accuracy and completeness of the Database, it makes no representation in relation thereto. Similarly, although the Company believes the Database and the Company Intellectual Property Rights do not infringe a third party’s intellectual property rights, it makes no representations in relation thereto.
8.1, All pricing shall be in Euros, USD or Sterling. The price for the Service shall be the Company’s quoted price as stated in the Contract. All prices quoted are valid for 30 days only or until earlier acceptance by the Purchaser. The Company will review the price for the Services annually and may increase the price by an amount up to 3% every year.
8.2. All prices quoted are exclusive of any applicable value added tax or any other similar taxation unless otherwise stated. The Company shall be entitled to charge and the Purchaser shall pay the Company all applicable value added tax (or such other taxes as shall from time to time be imposed by law) in respect of the Service provided at the rate prevailing at the time of completion of delivery of the Service under these Terms and Conditions.
8.3. The Company shall issue to the Purchaser an invoice in respect of all sums payable by the Purchaser to the Company under the Contract, in each case on or in advance of the date upon which the undisputed sum becomes due, and each such invoice shall be payable 30 days after the relevant due date.
8.4. Any indulgences as to time which are given on any particular occasion are not to be treated as a waiver of any rights under these Terms and Conditions. No time or indulgence allowed by the Company shall prejudice any rights or remedies which the Company has hereunder or otherwise.
8.5. Additional services are subject to separate pricing quotes which shall be submitted to the Purchaser for approval and will thereafter give rise to an additional Order and invoice; provided, however, for the avoidance of doubt, such additional orders shall be subject to these Terms and Conditions.
8.6. All enhancements and updates to the Database made by Company from time to time shall be provided to the Purchaser at no additional charge and is included in the price.
9.1. The initial term of the Contract (the “Initial Term”) shall commence as of the date specified in the Contract (“Effective Date”) and, unless sooner terminated as contained herein, shall continue in effect until the date mentioned in the Contract.
9.2. Upon the expiration of the Initial Term set forth in Section 9.1, the Contract shall be automatically renewed for the same period repeatedly (each, a “Renewal Term”, and, the Initial Term together with all Renewal Terms (as the case may be) the “Term”) upon the terms and conditions set forth herein, unless either Party provides at least sixty (60) days written notice of termination prior to the commencement of any Renewal Term, in which case the Contract shall be terminated as of the last day of the Initial Term or the then current Renewal Term.
9.3. During the Term, either Party may terminate the Contract and the provision of the Service if the other Party commits a material breach of its obligations and fails to remedy such breach within 30 days of receiving a written notice of default (“Default”) in which case termination shall take effect three months after receipt by the defaulting Party of a termination notice.
9.4. Each Order shall be terminated automatically (i) if the Company or Purchaser is dissolved or goes into liquidation, (other than for the purposes of an amalgamation or re-organization not involving insolvency) or enters into any scheme of arrangement, receivership, or administration or commits any other act of insolvency or (ii) unless otherwise agreed by the Parties if the Database or any part thereof is compulsorily acquired.
9.5. Upon termination of the Contract by the Company due to the Purchaser’s Default, the Purchaser shall pay to the Company all undisputed amounts in respect of the Service within 30 days of receipt by the Purchaser of an invoice from the Company setting out the amount due together with supporting documentation, and all disputed amounts as determined by a court of competent jurisdiction within 30 days following the final determination of such amount.
10.1. The Company may, with the prior written consent of the Purchaser, such consent not to be unreasonably withheld or delayed, subcontract any part of the Service; provided, however, that the Company may assign the provision of the Service without Purchaser’s approval upon the sale of all or substantially all the assets or ownership interests of the Company. Purchaser may not assign this Contract or any portion thereof without the prior written consent of Company. The Parties acknowledge that the Service to be provided herein shall be solely for the benefit of Purchaser as presently constituted, notwithstanding any sale, assignment or merger of the Purchaser. Accordingly, the Service to be provided by Company pursuant to the Contract is solely for the benefit of Purchaser and is not transferable to any affiliates, subsidiaries or related individuals or entities. Any entities purchased by or merged with Purchaser shall not be entitled to the Database or the Services being provided herein.
11.1. Each Party shall treat as strictly confidential and shall not disclose all or any information received or obtained as a result of entering into or performing the Contract which (i) relates to the provision of the Service (including but not limited to the Company’s reports), (ii) relates to the other Party or any aspect of its business or operations or (iii) is clearly identified as being confidential. “Disclose,” as mentioned in the previous sentence, shall also include sharing online.
11.2. Either Party may disclose information which would otherwise be confidential if and to the extent that it is:
(i) required by any court of competent jurisdiction to which disclosure is subject; provided that the disclosing Party has taken all practicable legal steps to prevent such disclosure, immediately
notifies the other Party of the requirements and the terms thereof and reasonably co-operates to minimize the extent of the disclosure of the information;
(ii) required by any securities exchange or agency to which either Party or any of its affiliates is subject whether or not the requirement has the force of law;
(iii) as may be reasonably required by either Party to disclose in confidence to its shareholders, directors, auditors, bankers, financiers and legal, financial and other professional advisers;
(iv) that the information has come into the public domain through no fault of either Party; or
(v) that the other Party has given prior written approval to such disclosure (such approval not to be unreasonably withheld or delayed)
11.3. The restrictions contained in this Clause 11 shall continue to apply for 3 years after termination of the Contract.
12.1. The Purchaser will, to the extent permitted by law and their insurers, indemnify, defend, and hold harmless the Company from and against any and all liabilities, losses, claims, expenses, demands, complaints or actions of third parties (including employees of the Purchaser), including without limitation reasonable legal fees and expenses, arising from or relating to the Contract (including personal injury, death, and property damage).
13.1. Neither Party will be liable under the Contract to the other Party for indirect, special, exemplary, punitive, or consequential damages, including without limitation loss of goodwill and lost profits or revenue, whether or not such damages are based in contract, warranty, tort, negligence, strict liability, or otherwise (even if advised of the possibility of such damages), except for such damages arising from:
(a) fines or penalties;
(b) fraud or willful misconduct;
(c) any breach under the confidentiality provisions of the Contract; or
(d) the Company’s indemnity obligations.
13.2. Any liability of the Company pursuant to the Contract with the Purchaser shall expressly be limited to the amount equal to the payments received in the case in question by the Company under the professional liability insurance taken out by the Company.
13.3. If no payment is made under the professional liability insurance for any reason, the liability of the Company shall be limited to an amount equal to price of the Service, exclusive of VAT, charged by the Company to the Purchaser and paid by the Purchaser in respect of the Service in question in the year in which the liability was incurred, subject to a maximum of €10.000.
13.4. Any liability on the part of the Company in connection with the performance of the Contract whereby loss or damage is caused to any person or property, shall be limited to the amount equal to the amount that shall be paid under the professional liability insurance taken out by the Company in the case in question.
13.5. The limitation of liability shall also apply in case of defective functioning of any hardware, software, data files, registers or other matters used by the Company in connection with the performance of the Contract.
13.6. Without prejudice to the provisions of article 6:89 of the Dutch Civil Code, a claim for compensation shall lapse if it is not presented to the competent court within one year of the date on which the Purchaser was aware, or should reasonably have been aware, of the facts giving rise to the claim.
13.7. A term indicated by the Company for the provision of the Service is of an indicative nature only, unless it is expressly indicated in writing that it concerns a final date. Also in case of an agreed final date, the Company shall only be in default after the Purchaser will have given it notice of default.
14.1. Any contract to which these Terms and Conditions apply shall be exclusively governed by, and construed in accordance with the laws of The Netherlands.
14.2. The competent courts of Arnhem, the Netherlands, shall have exclusive jurisdiction to hear all disputes arising from the Contract or any further agreement concluded in relation thereto.
The failure to exercise or delay in exercising a right or remedy under these Terms and Conditions shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under a Contract or these Terms and Conditions shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
15.1. If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision(s) in question shall not be affected thereby.
16.1. The Company shall not be under any liability to the Purchaser in respect of any failure to carry out or delay in carrying out any of its obligations hereunder attributable to any cause of whatever nature outside its reasonable control. The Company shall notify the Purchaser promptly upon becoming aware of any such event.
17.1. The Company shall not be under any liability to the Purchaser in respect of any failure to carry out or delay in carrying out any of its obligations hereunder attributable to any cause of whatever nature outside its reasonable control. The Company shall notify the Purchaser promptly upon becoming aware of any such event.
18.1. Any notice to be given by the Purchaser to the Company shall be in writing and shall be sent to the Company at Velperweg 18, 6824 BH Arnhem, the Netherlands and shall be sent by recorded delivery post. Any notice to be given to the Purchaser shall be in writing sent to the Purchaser at the address stated in the Contract sent by recorded delivery post. Any notice which is not returned to the sender as undelivered shall be deemed to have been given on the third day after the envelope containing same was so posted. Proof that the envelope containing notice or information was properly addressed and sent by recorded delivery post and that is has not been so returned to the sender shall be sufficient evidence that such notice has been duly given.
19.1. The Company will attempt to solve any problems with the Service via e-mail, fax or telephone contact. The Company does warrant that the Purchaser’s access or usage of the Service will be uninterrupted. Purchaser will receive a thirty percent 30% refund for any month during the Term when the average server-up-time is less than 95%.