- This Site is operated by Warc Limited (“we”, “us” and “our”). We are registered in England and Wales under company number 03383627 and have our registered office at c/o Ascential Group Limited, The Prow, 1 Wilder Walk, London, England, W1B 5AP, United Kingdom.
- To contact us, please refer to the “Contacts” section of the Site.
- The following additional terms may also apply to your use of our Site:
- Where you access products and/or services via our Site, your access (and use) will be governed by the terms and conditions applied to those products and/or services in conjunction with these Terms. In the event of any conflict between these Terms and the relevant product or service terms, the latter will prevail and apply.
- We may revise these Terms at any time by posting an update on our Site. Your continued use of our Site after any such changes constitutes your acceptance of the new Terms. Every time you wish to use our Site, please check these Terms to ensure you understand the Terms that apply at that time, as they are binding on you. These Terms were most recently updated in August 2019.
- We may update and change our Site from time to time to reflect changes to our services, our users' needs and our business priorities.
- The user expressly acknowledges and agrees that the Website is provided subject to the disclaimers and limitations of liability set out in these Website Terms, and agrees to be bound by them.
- WARC relies on the World Wide Web for the delivery of the Website to users and, without limiting the foregoing, whilst WARC will use reasonable efforts to minimise delays and interruptions in the delivery and/or updating of the Website, WARC will not be liable to users in any manner whatsoever for any consequences of such delay or interruption.
- Every user who visits this Website does so at their own risk. The materials in this Website are provided "as is" and without warranties of any kind either express or implied including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, title, non-infringement, security or accuracy. Neither WARC, nor any other party involved in the creation, production or delivery of this Website or whose materials or information appear in this Website, will be liable for any damages or injury caused by, including but not limited to, any failure of performance, error, omission, interruption, defect, delay in operation of transmission, computer virus, line failure, technical inaccuracies, typographical errors or the inability to use the materials in this Website – even if there is negligence on WARC's part or an authorized WARC representative has been advised of the possibility of such damages, or both.
- WARC may discontinue the Website, or any part of it, immediately if the provider of the material contained on the Website, or any part of it, withdraws or limits the licence or authority of WARC to include such material on the Website.
- The above limitation or exclusion may not apply to you to the extent that applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages. In that event, WARC's total liability to you for all losses, damages, and causes of action (in contract, tort, including without limitation, negligence, or otherwise) will not be greater than the amount you paid to access this Website.
- We do not guarantee that our Site, or any content on it, will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our Site for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.
- You are also responsible for ensuring that all persons who access our Site through your internet connection are aware of these Terms and other applicable terms and conditions, and that they comply with them.
- To access certain parts of our Site, we may require you to register and provide certain information about yourself. When you register you agree to:
a. provide true, accurate, current and complete information about yourself as prompted by the relevant registration form; and
b. contact us using the “Contacts” section of our Site in the event that you wish to update your information.
- We are the owner or the licensee of all intellectual property rights in our Site, and in the material published on it. Those works are protected by copyright and other intellectual property laws and treaties around the world. All such rights are reserved.
- If you print off, copy, download or use any part of our Site in breach of these Terms, your right to use our Site will cease immediately and you will, at our option, return or destroy any copies of the materials you have made.
- You agree that in using our Site you will:
- only use the material on our Site in accordance with the following permitted uses
a. you may view them on a computer screen, print off only one copy of any page(s) from our Site;
b. you may download extracts of any page(s) from our Site where permission to download and store the materials is specifically granted in the relevant materials, and that downloading was permitted in accordance with fair practice and only to the extent reasonably required in the circumstances;
c. where permission to download and store material is specifically granted, you may download and store the content on the hard disk of your computer or portable media but not make any further transfer or copy of it; and
d. you may only make such other use of the material as may be specifically authorised on our Site or within the relevant materials;
- not distribute, reproduce, modify, store, transfer or in any other way use any of the paper or digital copies of any materials you have printed off or downloaded (including as part of any database, library, news, information, archive, website or similar service) unless specifically authorised by us or as set out above;
- not disseminate advertisements on our Site or use our materials for any other commercial purposes (which would include using them to promote or encourage the sale of your goods/services);
- not disseminate any unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text;
- always acknowledge our status (and that of any identified contributors) as the authors of content on our Site;
- not remove the copyright or trade mark notice(s) from our materials; and
- not scrape, extract, download, upload, sell or offer for sale any of the material on our Site and you agree not to use, or cause to be used, any computerized or other manual or automated program or mechanism, tool, or process, including any scraper or spider robot, to access, extract, download, scrape, data mine, display, transmit, or publish, any of the material on our Site;
- The content on our Site and any related material provided to you by us is provided for general information only. It does not amount to any form of advice or recommendation on which you should rely. You will obtain professional or specialist advice before taking, or refraining from, any action, specific investment or other business or personal decisions on the basis of the content on our Site.
- Although we make reasonable efforts to update the information on our Site, we make no representations, warranties or guarantees, whether express or implied, that the content on our Site is accurate, complete or up to date. We cannot be held liable for its accuracy and timeliness, and we are under no obligation to update it. We may however update and make changes to the content on our Site, at any time without notice.
- Where our Site contains links to third party websites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.
- We have not reviewed these third party websites and have no control over the contents or availability of those websites or resources. If you decide to access any of the third party websites linked to our Site, you do so entirely at your own risk.
User-generated content is not approved by us
- Our Site may include information and materials uploaded by other users of our Site. This information and these materials have not been verified or approved by us. The views expressed by other users on our Site do not represent our views or values. We accept no responsibility for any statements, material or other submissions placed on our Site by users.
- If you wish to complain about information and materials uploaded by other users please contact us using the “Contacts” section of our Site.
- Nothing in these Terms will operate to exclude or limit our liability to you for death or personal bodily injury caused by us or our employees or subcontractors’ negligence, or for any fraudulent misrepresentation by any of the foregoing or for any other liability which cannot be excluded or restricted by law.
- You acknowledge and agree that in using our Site you have not relied on, and will have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in these Terms.
- Subject to the foregoing:
- we will not be liable to you arising out of or in connection with use of our Site for any of the following types of losses, damages, or expenses of any kind arising out of or in connection with such use;
d. lost profits;
e. lost revenue;
f. lost sales;
g. anticipated savings; and
h. losses, damages, or expenses arising from loss of data
- our total aggregate liability to you arising out of or in connection with use of our Site will be limited in aggregate to £500 (five hundred pounds sterling); and
- we will have no liability to you for any failure or delay in performing an obligation under these Terms because of any event beyond our or our subcontractors’ reasonable control.
Uploading content to our Site
- Whenever you make use of a feature that allows you to upload content to our Site, or to make contact with other users of our Site, you will comply with these Terms. You warrant that any such contribution does comply with these terms, and you will be liable to us for any loss or damage that we suffer as a result of your breach of that warranty.
- Any content you upload to our Site will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, but by uploading any content to our Site you grant us and other users of our Site a limited licence to use, store and copy that content and to distribute and make it available to third parties.
- We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our Site constitutes a violation of their intellectual property rights or of their right to privacy.
- We have the right to remove any posting you make on our Site if, in our opinion, your post does not comply with these Terms.
- You are solely responsible for securing and backing up your content.
- You will ensure that you do not upload, post or disseminate:
- any material that may interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data;
- any material which is or may infringe the rights (including intellectual property rights) of any third party or be unlawful, threatening, defamatory, obscene, indecent, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy, which may cause annoyance or inconvenience or may restrict or inhibit the use of our Site by any person or which constitutes or encourages conduct that may be considered a criminal offence or give rise to civil liability in any country in the world;
- any material which does or may bring us or any of our brands or subsidiaries into dispute or in any way damage their reputation; and
- any link(s) that take users to material that contravenes any of the above restrictions.
- We do not guarantee that our Site and any related material provided by us to you will be secure or free from bugs, viruses or other malicious code.
- You are responsible for configuring your information technology, computer programmes and platform to access our Site. You should use your own virus protection software.
- You will not misuse our Site by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You will not attempt to gain unauthorised access to our Site, the server on which our Site is stored or any server, computer or database connected to our Site. You will not attack our Site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of any such breach, your right to use our Site will cease immediately.
- You may link to the home page of our Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
- You will not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
- You will not establish a link to our Site in any website that is not owned by you.
- Our site will not be framed on any other site, nor may you create a link to any part of our Site other than the home page.
- We reserve the right to withdraw linking permission without notice.
- If you wish to link to or make any use of content on our Site other than that set out above, please contact us using the “Contacts” section of our Site.
- These Terms, their subject matter and their formation, are governed by and should be construed in accordance with English law. You and we both agree that the courts of England and Wales will have exclusive jurisdiction except that if you are a consumer and you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are resident of Scotland, you may also bring proceedings in Scotland.
- In the event that any provision of these Terms is held to be invalid or unenforceable, the remainder of these Terms will remain valid and enforceable.
These General Terms of Business (“Terms”) provide the terms and conditions which will apply to everything we supply to you.
In addition, the following services will be subject to the relevant Module Terms, as set out below:
Module Terms that apply
Digital Services Module
Digital Services Module
Digital Services Module and Consultancy Services Module
The WARC Rankings
Digital Services Module
Consultancy Services Module
Please note that our subscription services (WARC, WARC Data and The WARC Rankings) are a non-exclusive online resource. WARC is a global authority on advertising and media effectiveness, where you can get unbiased advice on almost any advertising & marketing issue. We provide articles, best practice pieces, case studies and insights across key marketing topics. Unless otherwise agreed between us, the subscription services do not include bespoke market research. We are not providing a software service. Access to the subscription services is via the WARC Websites. Please bear this in mind when reviewing these Terms.
- When the parties agree terms for us to provide Services and/or Deliverables to you, we will capture those terms in writing (an Order Form).
- Whichever is earlier of you signing an Order Form, completing an online registration form and clicking “accept” or similar assent where applicable, is your offer to purchase the Services and/or Deliverables from us on these Terms (an “Offer”). Our signing of an Order Form, sending of a confirmation email or supplying Services and/or Deliverables (which includes any necessary preparatory work) to you in accordance with the Order Form is acceptance of your Offer (“Acceptance”) and creates a binding contract consisting of the Order Form, these Terms and any relevant Module Terms (a “Contract”).
- No other terms and conditions, (including, without limitation, your own terms, the pre-printed terms on the back of any PO, or those implied), will apply to a Contract unless we have agreed in writing.
- A Contract starts on the start date specified in the Order Form and will continue until the earlier of:
- the specific end date included in the Order Form (if any);
- termination by notice in accordance with any specific provisions of the Order Form (if any); or
- termination in accordance with these Terms.
- Neither party is entitled to terminate, delay, suspend or vary a Contract other than in accordance with these Terms.
- Either party may immediately terminate a Contract by giving the other party written notice if the other party materially or repeatedly breaches the terms of that Contract.
- We may immediately terminate a Contract if you are subject to an Insolvency Event.
- We warrant that:
- we will use reasonable skill and care in providing the Services and Deliverables; and
- the Services and Deliverables will correspond to any specification in the Order Form (a “Specification”).
- Unless otherwise agreed in writing as part of a Contract, we may invoice you for Services and Deliverables in full and in advance.
- You must pay each invoice:
- by the date agreed in the Contract; or
- if no such date has been agreed, within 30 days of the date of the invoice.
- You are not entitled to set-off any amount we owe you against any amount you owe us.
- A party may charge the other interest on any late payments. Interest accrues each day from the original due date for payment until the actual date the overdue amount is paid at a rate equal to the lesser of 1.5% per month and maximum rate permitted by applicable law.
- You must reimburse us for any reasonable costs we incur recovering any late payments from you.
- We may suspend the provision of any Services or access to any Deliverables if you owe us anything, from 14 days of the date the debt became overdue.
- On termination of a Contract anything you owe us in relation to the Contract shall become due immediately. We may recover from you any reasonable costs we incur in collecting overdue monies from you.
- Amounts payable by you in relation to a Contract are exclusive of VAT, sales, use and any similar taxes unless expressly agreed in writing as part of the Contract. If you do not pay such taxes you will be responsible for their payment to relevant authorities. We reserve the right to collect taxes and our reasonable costs of collection from you at any time. In certain jurisdictions, we may be required to collect and remit sales tax in connection with your purchase of Services and Deliverables. Any such taxes will be added to the fees and reflected on your invoice.
- Following the first anniversary of Acceptance, but not more than once in each year of a Contract, we may automatically increase any fees by an amount equal to the greater of (i) 5% or (ii) the percentage increase in the Consumer Price Index (all Urban Customers, United States, All Items) in the preceding year.
- All Intellectual Property Rights in anything we supply are our property and shall not transfer to you by Contract.
- We grant you a non-transferable, non-exclusive, non-assignable, revocable, limited license, without the right of sub-license, to access and use the Services and Deliverables for your own internal purposes during the term of the Contract.
- Any rights not expressly granted herein are reserved by us. To the extent that you acquire any right, title, or interest in or to any Ascential Property (other than with respect to such limited license), you hereby assign and convey all such right, title and interest therein to us.
- We acknowledge that the Customer Materials are your property and that you own all Intellectual Property Rights in and to the same.
- You agree that we (including our Affiliates) may freely use any data (including the Customer Materials) which we learn, acquire or obtain in connection with the performance of a Contract to improve the quality of our services and deliverables.
- We indemnify you against damages or costs you incur in connection with claims, demands, suits, or proceedings made or brought against you by a third party claiming that the Deliverables infringe the Intellectual Property Rights of a third party ("Claims"); provided, however, that we shall not have any liability to indemnify you for a Claim to the extent the alleged infringement arises from: (i) changes to the Deliverables made at your specific written direction; (ii) your failure use new or corrected versions of the Deliverables provided by us and you are notified that use of such new or corrected version is necessary to avoid infringement; (iii) the modification of the Deliverables by you or any third-party on your behalf other than as expressly contemplated by the Contract without our written consent; or, (iv) combination of the Deliverables with systems, materials or software other than as contemplated by the Contract.
- You must:
- immediately give us written notice of a Claim;
- give us full control of the defense and settlement of the Claim (provided we may not settle or defend any Claim unless we unconditionally release you from all liability in relation to that Claim); and
- provide us with all reasonable assistance in relation to the Claim.
- If we believe that a Claim could prevent you from receiving or using all or any part of the relevant Services or Deliverables, we may:
- procure the right for you to make continued use of the relevant Services and Deliverables;
- replace or modify the Deliverables so that they become non-infringing, as the case may be; or
- terminate the relevant Deliverables immediately on written notice to you, and refund to you any pre-payment in relation to such cancelled Deliverables.
- You must provide us with such information, instructions and materials as we require from time to time to enable us to perform a Contract.
- You agree that to the extent that you cause delay to our performance of any obligation under a Contract, we shall not be in breach, nor liable to you for any related loss.
Each party must hold sufficient insurance to cover its potential liabilities under the Contract. This includes (without limitation) any insurance required by applicable law or specified on the Order Form.
- Both parties must comply with all applicable laws in connection with the provision and use of the Services and Deliverables, including but not limited to those related to data privacy and personal data.
- Each party warrants that it will:
- comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption;
- put in place, comply with and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet its statutory responsibilities in this regard; and
- promptly notify the other party of any request or demand for any undue financial or other advantage of any kind received by or on behalf of you in connection with a Contract.
- We are part of an enlarged corporate group which pledges to trade legally and respect all laws including the Trade Sanctions imposed by EU and US Governments. We operate a Group Sanctions Policy which means that we cannot receive consideration from individuals or organizations based or residing in, or connected with, a country or organization which is subject to EU or US Government sanctions. We may refuse to accept an order from any such person or organization for any reason.
- Breach by either party of these Anti-Bribery and Sanctions provisions will be a material breach of a Contract.
- Termination of a Contract by either party will not affect the operation of any other Contract between the parties.
- Termination or expiration of a Contract, or any part thereof, will not affect the continuance in force of any provision of the Contract or the relevant constituent part which is expressly or by implication intended to survive termination.
- Nothing in this Contract will operate to exclude or limit a party’s liability for death or personal bodily injury caused by its or its employees or subcontractors’ negligence, or for any fraudulent misrepresentation by any of the foregoing or for any other liability which cannot be excluded or restricted by law.
- Subject to the foregoing:
- neither party will be liable to the other arising out of or in connection with a Contract for any of the following types of losses, damages, or expenses of any kind arising out of or in connection with that Contract;
d. lost profits; *
e. lost revenue*;
f. lost sales*;
g. anticipated savings; and
h. losses, damages, or expenses arising from loss of data.
*Excludes the fees for Services agreed upon in an Order Form.
- our total aggregate liability to you arising out of or in connection with a Contract shall be limited to the amount you have paid us pursuant to that Contract during the twelve (12) month period immediately preceding the event giving rise to the liability; and
- neither party will have any liability to the other party for any failure or delay in performing an obligation under a Contract because of any event beyond that party’s or its subcontractors’ reasonable control. You are not entitled to rely on this exclusion of liability for failure to pay monies owed to us.
- Each party acknowledges that in entering into a Contract it has not relied on, and will have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in the Contract.
- You are not entitled to rely on the exclusions of liability in this clause to relieve you from liability to pay monies payable to us.
- Each party acknowledges that in entering into a Contract it has not relied on, and will have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in the Contract.
- Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party which it may have or which may in future come to its knowledge. Each of the parties will use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
- Clause 13.1 shall not extend to any information which the receiving party (“Recipient”) can demonstrate: (i) is already in the public domain at the time when it is disclosed to the Recipient or subsequently became part of the public domain (in each case except as a result of a breach of the provisions of this Contract); (ii) is disclosed to the Recipient by a third party having the lawful right to make such disclosure; or (iii) is conceived by the Recipient independently of the confidential information supplied to it by the disclosing party. The disclosure of any confidential information shall not transfer or create in favor of the Recipient any right of ownership (including but not limited in respect of any Intellectual Property Rights).
- The terms and provisions of this Contract are intended solely for the benefit of each party hereto, their Affiliates and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.
- The documents comprising the Contract (together with any documents referred to therein or required to be entered into thereunder) contain the entire agreement and understanding between the parties relating to the subject matter of the Contract and supersede all prior agreements, understandings or arrangements (both written and oral) relating to the subject matter of the Contract.
- In the event of conflict or inconsistency between the Order Form, the Module Terms and these Terms, and between any of the foregoing and a document referred to in the Contract, the documents will take precedence in the order listed above.
- To the extent that you are entering into a Contract on behalf of an organization, you represent and warrant that you have the authority to bind such organization. Any person who has access to any of the Services or Deliverables which you procure from us by being designated by you as an individual user of the same, similarly agrees to be bound by the relevant terms of the Contract.
- Notices required under Contract will be sent by email to the relevant party’s address on the Order Form or as otherwise agreed in writing for such purpose. Notice by email is deemed effective three hours from transmission.
- The parties acknowledge and agree that our communication may be electronic, and that any communications sent electronically comply with any legal or contractual requirement that such communication be made in writing.
- Either party may assign, sub-license or otherwise transfer to any Affiliate any of its rights under the Contract provided that it gives the other party reasonable prior written notice. Otherwise, neither party may assign, sub-license, subcontract or otherwise transfer to any third party any of its rights or obligations under the Contract without the other party’s prior written consent.
- If any provision of the Contract is held to be invalid or unenforceable, that portion will be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remainder of the Contract will remain valid and enforceable.
- Any translations of the Contract from English are provided merely for convenience and will not be legally binding. In the event of any conflict between the English language version and any translations, the English version will prevail.
- Where these Terms use the words ‘include’ and ‘including’, these are illustrative and not limiting.
- The Contract will not create, nor will it be construed as creating, any partnership or agency relationship between the parties.
- We may sub-contract our performance of any obligation under a Contract to any of our Affiliates without notice. This will not affect our performance obligations, nor liability to you in relation to the Contract.
- Each party will comply with all laws and government regulations which apply to a Contract.
- Nothing in a Contract will require either party to do or omit to do anything which would contravene any applicable laws or government regulations.
- Where the Ascential contracting entity (as identified on the relevant Order Form) is a member of Ascential Europe – APAC;
- the Contract will be governed by and construed with the laws of England and Wales; and
- the courts of England and Wales shall be the exclusive venue for all disputes between the parties arising out of or in connection with this Contract and the parties hereby submit to the personal jurisdiction of, and waive and objections to venue in, such courts.
- Where the Ascential contracting entity (as identified on the relevant Order Form) is a member of Ascential Americas;
- the Contract will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules;
- the state and federal courts located in the City of New York, Borough of Manhattan, New York, shall be the exclusive venue for any and all disputes between the parties arising out of or in connection with the Contract and the parties hereby submit to the personal jurisdiction of, and waive any objections to venue in, such courts; and
- EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY DISPUTE, ACTION, OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- This choice of law and jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of Intellectual Property Rights.
In these Terms the following definitions apply:
Affiliates means any entity controlled by a party or under a party’s common control, where “control” means: direct or indirect ownership, in an entity of 50% or more of the voting rights conferred by all the issued shares or equity interests in the capital of that entity; or the power to determine directly or indirectly the composition of the majority of the board of directors, similar management body or direct the management of such entity;
Ascential, we, us, our means the member of the Ascential group of companies identified on the Order Form;
Ascential Americas means any current or future entity which is part of the Ascential Group of companies that is domiciled in the United States.
Ascential Europe – APAC means any current or future entity which is part of the Ascential Group companies that is domiciled in a country other than the United States.
Ascential Property means the Services, the Deliverables (including, without limitation, all derivatives or improvements), any patents, processes, software, code, files, technology, templates, forms, scripting, trade secrets, products, reports, ideas, concepts, operations, plans or intentions, know-how, market opportunities, customers, business affairs, development plans and financial information, any suggestions, information, enhancements, requests, feedback, recommendations or other input provided by any party relating to the Services or Deliverables, and any other items we create in relation to our performance of our obligations pursuant to a Contract.
Customer Materials means anything you provide to us to enable us to perform our obligations pursuant to a Contract;
Deliverables means the deliverables described in an Order Form;
Insolvency Event means a situation where a party cannot pay its debts as they fall due, has a petition for winding up or an administration order presented against it or passes a resolution for winding up or calls any meeting of its creditors or proposes to make any arrangement with its creditors, has a receiver (administrative or otherwise) or an administrator appointed over all or any part of its business or assets, or goes into liquidation;
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Module Terms means terms specific to the Services and/or Deliverables you have ordered from us, which are set out below;
Services means the services Described in the Order Form.
Digital Services Module
Where as part of a Contract, we provide digital services or deliverables, as noted on the relevant Order Form, the following additional terms will apply to the Contract.
The Contract shall commence on the Contract start date specified in the Order Form and (subject to early termination in accordance with these Terms) continue for the initial period set out on the Order Form (the “Initial Period”). Unless a party provides not less than 90 days’ written notice to the other that it does not want the Contract to renew, the Contract shall automatically extend for a period equivalent to the Initial Period on expiry of the Initial Period and each subsequent anniversary of the expiry of the Initial Period. This shall not prevent early termination in accordance with these Terms.
Your access to and use of the Services is restricted to the users and/or corporate entities specified in the Order Form (collectively, the “Users”), and permitted for your internal business operations only. You agree not to permit any third-party to access the Services except as expressly authorized in a separate Third-Party Access Agreement provided by us. We shall issue usernames and personal passwords to authorize acceptable Users to use the Services. Each username and User access is unique. The User must keep the password confidential and must not share or permit access to the Services by any other person. You must immediately notify us of any User who ceases to be your employee or full-time contractor or who is otherwise no longer to be permitted access to the Services for whatever reason and such User’s username and password shall be deactivated. You are responsible for ensuring User compliance with this Contract and accept responsibility and liability for the acts and omissions of your Users.
If you are acquired by or you acquire a third party which itself possesses a licence to use the Services, then you acknowledge and agree that your Contract remains in force without amendment.
Your digital services may be subject to a set-up period during which you may not have access, or may have limited access, to the Services after commencement of the Contract. The length of this set-up period may vary depending on the customization of the Services requested and your delivery of any required Customer Materials.
We make no representations or warranties regarding the reliability, availability, timeliness, suitability, accuracy or completeness of the Services and Deliverables or the results that you may obtain by using them.
We do not represent or warrant that:
- the operation or use of the Services or Deliverables will be timely, uninterrupted or error-free;
- the quality of the Services or Deliverables will meet your requirements; or
- the Services or Deliverables will function properly in combination with any third party-services, technology, hardware, software, systems or data.
You acknowledge that the Services and Deliverables may be subject to limitations, delays, loss or corruption of information and other problems inherent in the use of electronic communications facilities.
Except where expressly provided otherwise, the Services and Deliverables are provided on an "as is" basis. You are solely responsible for ensuring that the Services and Deliverables are appropriate and suitable for your needs and that the assumptions (if any) set out in the Order Form are accurate.
You agree that neither the Services or Deliverables are advice or recommendations from us and you must not rely on them to make decisions.
From time to time, we may:
- temporarily suspend for the purpose of emergency repair, maintenance or improvement, all or part of any Services or Deliverables without notice;
- temporarily suspend all or part of any Services or Deliverables for scheduled support and maintenance by providing notifications and giving reasonable notice of such suspensions; or
- vary the technical specification of any Services or Deliverables for operational or any other reason, provided that there is no material detriment to the operation of such Services or Deliverables.
We reserve the right at any time and from time to time to modify, temporarily or permanently, any Services or Deliverables or any component or feature thereof. You agree that we will not be liable to you or to any third party for any such modification of the Services or Deliverables if there is no material detriment to their operation.
Without limiting your obligations elsewhere in the Contract, you shall not disclose, provide or otherwise make available the Services or Deliverables to any third-party, including (without limitation) any retailer, data provider, or manufacturer, unless expressly authorized by us in a separate written agreement. You further agree that you will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or Deliverables except as permitted by applicable law; (ii) modify, translate, or create derivative works based on the Services or Deliverables, or copy (except for archival purposes), rent, lease, distribute (except as expressly permitted herein), pledge, assign, or otherwise transfer or encumber rights to the Services or Deliverables; (iii) use or access the Deliverables or Services to build or support, and/or assist a third party in building or supporting, products or services competitive to us; (iv) remove any proprietary notices or labels from the Services or Deliverables; (v) use the Services or Deliverables in any manner that could damage, disable, overburden, impair, obstruct or otherwise interfere with our provision of the Services, the Deliverables or our business; (vi) use the Services to store or transmit computer viruses or other harmful code; (vii) interfere with or disrupt the integrity or performance of the Services; (viii) frame or mirror any content forming part of the Services, other than on Customer’s own intranet for Customer’s internal business operations as permitted under the Contract; (ix) attempt to gain unauthorized access to the Services or its related systems or networks; or (x) permit direct or indirect access to or use of the Services in any manner that circumvents any restrictions or limitations under the Contract.
We may limit the data and deliverables that are available on the Services based on either or both of (i) the date of first publication or (ii) the amount of data stored on the Services platform. Thereafter, we may archive the data and deliverables in which case the data may be available via an extract for an additional fee.
We reserve the right to monitor usage of the digital services to ensure you and your Users are acting within the terms of the Contract. We may contact you to verify usage. We may take preventative and/or remedial action should we have reasonable grounds for suspecting a breach of the Contract may have occurred. Such preventative and/or remedial action may include, without limitation, suspension of access rights, revocation or cancellation of User accounts, up to and including termination of the Contract for breach of the Contract by you and/or a User.
You indemnify us against any losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by us, including legal expenses reasonably and properly incurred, arising out of any misuse or unauthorised use of the digital services or deliverables by you, your Affiliates and/or your Users. We must: (a) promptly give you written notice of the claim; (b) give you full control of the defense and settlement of the claim (provided that you may not settle or defend the claim unless you unconditionally release us from all liability in relation to the claim); and (c) provide you with all reasonable assistance in relation to the claim.
Consultancy Services Module
Where as part of a Contract, we provide consultancy services or deliverables, as noted on the relevant Order Form, the following additional terms will apply to the Contract.
The Order Form will specify whether the fees are fixed or are calculated on a time and materials basis.
Where fees are calculated on a time and materials basis, the Order Form will show our daily rate for each individual person. Daily rates are calculated based on an eight-hour day worked during the hours of 9am to 5.30pm in the jurisdiction in which the Services are performed.
The fees exclude hotel, subsistence, travel and other ancillary expenses reasonably incurred by us in our provision of the Services.
We are entitled to charge an overtime rate of 25% of the standard daily fee rate on a pro-rata basis for any time worked outside the hours specified in the Order Form.
We will invoice you for the fees at the intervals specified on the Order Form. If no intervals are specified, we will invoice you at the end of each month for Services performed and Deliverables delivered during that month.
You are responsible for inspecting the Deliverables and any defect must be reported to us in writing within 5 days of our provision of the relevant Deliverable(s). We shall not be in breach of a Contract nor liable to you for any defect in Deliverables which are reported after 5 days after they have been provided to you.
If we deliver Deliverables which do not comply with a Specification, you may refuse to take delivery of those Deliverables only, but you must accept any other Deliverables delivered pursuant to the same Contract which do comply with the relevant Specification.
You indemnify us against any loss, damage or costs we incur in connection with claims made or brought against us by a third party alleging that any Customer Materials infringes the Intellectual Property Rights of the third party. We must: (a) promptly give you written notice of the claim; (b) give you full control of the defense and settlement of the claim (provided that you may not settle or defend the claim unless you unconditionally release us from all liability in relation to the claim); and 9(c) provide you with all reasonable assistance in relation to the claim.