This document sets out the terms and conditions upon which IGD provides retail analysis information services. These terms shall apply to any order that you place with us and that we have accepted in accordance with these terms.
"We", "us" or "our" refers to IGD Services Limited, a company registered in England (whose company number is 3357260 and whose registered office is at Grange Lane, Letchmore Heath, Watford, Herts, WD25 8GD). "You" or "your" refers to the person who (or on whose behalf) an Order is placed.
Unless the context otherwise requires, the other defined terms used in this document have the following meanings:
"this Agreement"
is these Terms together with the Order placed by you to use the Service and the Site Terms, Privacy Policy and Copyright Notice;
"Authorised User"
is a person entitled to use the Service;
"Charges"
are those fees and charges payable by you to us under this Agreement;
"Copyright Notice"
is the copyright notice accessible from the Website from time to time;
"Intellectual Property Rights"
are copyright, patents, utility models, trade marks, service marks, design rights (whether registered or unregistered), database rights, rights under licences, proprietary information rights and all other proprietary rights as may exist anywhere in the world whether or not capable of protection by registration together with applications associated to any such rights;
"Materials"
are materials of any nature and on any medium that we provide or make available to you as part of the Service (including without limitation information, software, documentation, data, diagrams, charts, records and reports);
"Order"
is an order placed by you and accepted by us in accordance with these Terms;
"Privacy Policy"
is the privacy policy accessible from the Website from time to time;
"Service"
is the retail analysis information service more particularly described in your Order and as further determined in accordance with these Terms;
"Site Terms"
is the site terms accessible from the Website from time to time;
"Terms"
are these terms and conditions set out in this document;
"Website"
is the web site operated by us to provide the Service, currently at the following uniform resource locator address: "www.igd.com".
Duration
1. In respect of the Service which we supply to you, this Agreement shall be effective from the date on which we accept your Order in accordance with paragraph 3 below and, except for termination as specifically mentioned in this Agreement, the Service shall be provided for the period of time set out in the Order. This Agreement shall be extended and continue in force for any further period if you and we agree to extend the term. You and we may agree to such extension orally, in writing, by e-mail or by any other method, but we shall confirm the revised duration period in writing, by e-mail or by other durable medium.
The Service
2. We shall provide the Service to you. If we accept your Order, we shall use all reasonable endeavours to ensure that the Service is provided in accordance with any timescales, delivery requirements and other specifications described in your Order but time for delivery shall not be of the essence of this Agreement.
Orders
3. In your Order, you shall provide all such information as we require. An Order shall only be binding upon the earlier of (a) receipt by you of our confirmed acceptance in writing, by e-mail or other durable medium or (b) dispatch by us to you of your username and password log-in details or (c) collection by us from you of the Charges or (d) provision of the Service by us to you. We may, but will not necessarily, acknowledge receipt of your Order. If we do so, the acknowledgement of receipt shall not constitute our acceptance of your Order unless we expressly stipulate that it is acceptance. These Terms apply to the Order to the exclusion of any terms and conditions submitted, proposed or stipulated by you. You may not cancel or amend an Order unless we have given our express written or e-mail consent. .
4. We may assume that any person who reasonably holds themselves out as being your authorised representative, shall be entitled to place an Order on your behalf. You must ensure that the terms of your Order are complete and accurate.
Licence
5. You acknowledge that the legal and beneficial interest in Intellectual Property Rights relating to, or developed by us or our suppliers in connection with, the Service belong to us or our licensors. This includes all Intellectual Property Rights in any Materials. You will not alter or make any addition to the labelling or packaging of the Materials and shall not alter, deface or remove in any manner any trademark, logo, symbol or name attached or affixed to the Materials or their packaging or labelling.
6. We grant to you a non-exclusive, non-transferable licence to use the Intellectual Property Rights referred to above for the sole purpose of receiving the relevant Service. This licence is subject to the following restrictions:
you may only use those Intellectual Property Rights for your own internal business purposes at the site(s) and / or countries specified in the relevant Order; and
you may permit only Authorised Users to use or access the Service and view the Materials. Authorised Users may save the Materials to their local hard drive, make an additional copy for archiving or back-up purposes and print one copy for their own use, but not for sharing with any unauthorised people nor over a network in which unauthorised people may have access. An Authorised User must not access or store the Materials concurrently from or on more than one computer; each additional use will count as an additional Authorised User; and
you may use those Intellectual Property Rights in accordance with paragraph 7 below for the sole external purpose of marketing or promoting your normal business to an existing or potential retail customer who is the subject of the Service; and
you may not, without our prior written consent, make available, copy, reproduce, retransmit, disseminate, sell, license, distribute, publish, broadcast or otherwise circulate Materials that we make available to you to any other person (including without limitation your employees, agents, contractors and customers) or in any way other than as expressly permitted by us.
7. You may include limited extracts of Materials in communications to your employees who are not Authorised Users and to existing or potential customers in the normal course of your business, provided that: (a) you do not charge any money or anything for money's worth for supply of any of the Materials, and (b) you do not disclose more than a small part of any text, tables or charts from the Materials, and (c) you credit us as the source of the information and include our copyright notice, and (d) you fairly represent and do not alter the material in any way. You may also store Materials on an electronic storage device provided that adequate security measures are in place to protect the Materials from disclosure to or viewing by personnel who are not Authorised Users.
Authorised Users
8. You acknowledge that the type of licence referred to in the Order and the price paid by you will determine the number of Authorised Users. If there is a maximum number of permitted Authorised Users, then they shall be the personnel specified in the Order or registered on the Website at a later stage. "Personnel" means individuals who are employees of you. If you would like to have more than 50 Authorised Users, you must first obtain "Corporate Access". "Corporate Access" does not necessarily mean access by anyone in your organisation. The Corporate Access option is only available if we have specifically agreed the extent of usage in terms of number, type and location of employees with you in writing, by e-mail or by other durable form..
9. You shall ensure that Materials are only made available to and accessed by Authorised Users in accordance with these Terms. If the people who constitute Authorised Users change from time to time, you shall promptly update the details of who is an Authorised User. You agree to cooperate with us if we wish to monitor your compliance with this requirement (such cooperation to include providing us with access to premises to inspect the way in which Materials are used by personnel) ("Audit"). If an Audit reveals that any Materials are used by personnel or any of your agents or sub-contractors who are not Authorised Users you agree to promptly reimburse us for any underpaid licence fees (at our then current list price) together with any costs incurred by us in carrying out the Audit. In addition, you acknowledge that in such circumstances we reserve the right, at our discretion, to immediately terminate this Agreement without notice.
Charges
10. The fees and charges for the Service shall be our standard fees and charges stipulated at the time of the Order or as otherwise agreed in writing or by e-mail by us. If we agree to an extension of the term of this Agreement, then the fees payable for the period of extension shall be our standard fees and charges stipulated at the date on which we agree to the extension or as otherwise agreed in writing or by e-mail by us. If you cross a threshhold so that further Charges are payable as a result of an increase in the number of your Authorised Users, those further Charges are payable from the date on which the threshhold is crossed. The portion of extra Charges shall be pro rata according to the number of full months left in the current Service period (being either the original period for the Service or the current period following the last agreed extension) out of the total number of months for the current Service period. You shall not be entitled to withhold any payments in whole or in part on the ground that you have a claim, counterclaim or set-off against us.
11. Charges are exclusive of all current and future taxes and fees, all of which you will be responsible for and will pay in full (except for taxes based on our net income).
12. You must pay for the fees and charges and taxes in full within twenty-eight (28) days of the invoice date. If you are late in paying us any fee or charge or tax under this Agreement, then without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or bye-law we may charge interest at the annual rate of 8% above the official dealing rate of the Bank of England from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly.
13. If you do not make any payment when due, we may in addition, notify you to do any or all of the following:
(a) modify the payment terms to require you to make full payment in advance;
(b) suspend all or part of the Service; or
(c) require you to provide such other assurances as we may reasonably require in order to secure your payment obligations.
14. Subject to paragraph 32 below, if we become entitled to terminate this Agreement or this Agreement is terminated for any reason, any sums then due to us will immediately become payable by you in full.
Warranties
15. We warrant that we will provide the Service (and any Materials provided as part of the Service) to you with reasonable skill and care, but we make no other warranties (express or implied) as to the Service or the Materials. Without prejudice to the generality of the foregoing, we do not warrant that the Service or any Materials will meet your present or future needs or requirements or that the Materials or the Service will be complete, error-free or wholly accurate or that they will be delivered without interruption, fault or error. It is possible that some errors or omissions may occur because of the immense quantity of information and some information cannot always be verified. We do not warrant that the Materials or the Service should be used as the deciding factor for any business decision. The time for provision of the Materials and the Service shall not be of the essence.
16. You assume sole responsibility for the use, selection and suitability of the Service for your needs and objectives and acknowledge that except as above we do not provide any additional warranties or guarantees relating to the Service or any Materials provided as part of the Service.
17. You warrant that you shall comply with all applicable laws and regulations and shall not knowingly use the Materials or the Service for any improper or unlawful purposes (including without limitation infringing any Intellectual Property Rights).
Intellectual Property Rights and Indemnities
18. We shall indemnify you in full for any infringement or threatened infringement of any of our Intellectual Property Rights (or those of our licensors) which we have licensed or made available to you under this Agreement ("IPR") or for any claim as to the validity of the IPR by any third party, provided that you shall at all times indemnify us in full in respect of any infringement of any IPR arising as a result of your use of such IPR outside the terms of this Agreement.
19. You agree to allow us and our licensors to have control of any proceedings arising as a result of any infringement, threatened infringement or claim relating to the IPR and you agree that you will make no admission as to liability and that you will not agree to any settlement or compromise of any action without our consent (or that of our licensors) (as the case may be).
20. You agree that you will, at our request and at our cost, lend your name to and offer such other assistance as we may reasonably request in relation to any proceedings to protect our IPR. Any recovery obtained from such proceedings shall accrue solely for our benefit although we will reimburse to you any costs reasonably incurred by you in assisting with such proceedings.
21. If an infringement, threatened infringement or claim occurs in relation to the Service, or if we consider that such a claim is likely to occur we shall have the right at our sole discretion to either:
(a) procure for you the right or licence to use the Service free of the infringement claim; or
(b) replace or modify the Service to make it non-infringing; or
(c) terminate that part of the Service which relates to the infringement (or potential infringement) and return any Charges paid by you for that part of the Service in full and final settlement of any claims in respect thereof; or
(d) if none of these options is reasonably practicable, terminate this Agreement and return any Charges paid by you for the affected Service in full and final settlement.
Website usage
22. The provisions in paragraphs 23 to 31 inclusive shall apply where you make use of the Website as part of the Service.
Passwords
23. We may provide you with user IDs and passwords in respect of each Authorised User who is entitled to access the Website (or to all Authorised Users if you have requested and we have agreed corporate access). Alternatively, we may agree to provide access to all computers from a range of Internet Protocol addresses that you tell us belong to you. You shall be responsible for informing us as soon as any of those addresses are no longer owned by you. We may also use cookies to recognise computers from which Authorised Users have either had access before or are within the relevant range of Internet Protocol addresses. You acknowledge that each password is unique and you agree to put in place appropriate technical and administrative controls to ensure the safekeeping of passwords and ensure that use of user IDs and passwords, computers that have previously been allocated user IDs and passwords or computers within your designated Internet Protocol address range is strictly limited to the current relevant Authorised Users (whether or not we have issued passwords on an individual or a corporate basis). You shall immediately notify us upon becoming aware or reasonably suspecting of any unauthorised use of a user ID, password or a computer. You shall ensure that Authorised Users do not download more than the number of copies of the Material specified to which they are entitled from the Website and that they do not copy the Material or make it available to any third party other than as authorised by us.
24. We shall be entitled to assume that any acts or dealings made through the Website from a computer where a valid user ID or password has been entered or within the designated Internet Protocol address range are made by an Authorised User and that such dealings are made on behalf of you. You shall remain responsible in respect of all such acts and dealings.
Access and Use
25. You acknowledge that from time to time we may need to carry out maintenance of the Website, and that it may be necessary for access to some or all of the Website to be temporarily suspended. We shall use reasonable endeavours to ensure maintenance is carried out with as little disruption as reasonably practicable to the ability of browsers to access the Website. We shall, in any event, be entitled to suspend, restrict or terminate access to the Website or to modify any part of the Website for any reason at any time.
26. You agree not to use the Service made available to you on or via the Website such that you cause the whole or part of the Website or such Service to be interrupted, damaged, rendered less efficient or in any way impaired for you, your Authorised Users or any third party.
27. You agree that you will only use the Website in a manner which is consistent with this Agreement and in such a way as to ensure compliance with applicable laws and regulations. In particular you will not use the Website to transmit, post or download any material which is defamatory, offensive or of an obscene or menacing character or which in our judgement may cause annoyance, inconvenience or anxiety to any person. We reserve the right to remove any information that you transmit, post or download at our sole discretion without notifying you.
28. You shall be responsible for making all arrangements that will allow you to access the Website (including without limitation obtaining the equipment and paying for telephony and other charges which are necessary for you to access the Website).
Data Protection
29. You acknowledge that prior to and when an Authorised User accesses the Website we will collect personal data regarding the way in which they use the Website. This information will be used by us to customise the Website to compile management and information statistics and for billing purposes. You agree that we may do this and that you will be responsible for notifying and obtaining relevant consents from Authorised Users for us to do this prior to giving them a password and submitting their details to us. Further details of the Privacy Policy are available on the Website and shall form part of this Agreement.
General
30. You will comply with all reasonable instructions issued by us from time to time relating to use of the Website (including without limitation the Site Terms, Copyright Notice and any additional terms and conditions posted on the Website).
31. You shall ensure that your employees, agents and contractors comply with your obligations under these provisions. You agree to indemnify us against all liabilities, claims, losses, damages, demands, charges, costs, and expenses (including without limitation legal expenses) that we may suffer or incur as a result of any breach of your obligations in these paragraphs 23 to 31 inclusive.
Termination
32. We may terminate this Agreement without cause at any time by giving 30 days' notice to you. If we terminate under this paragraph 32, we shall promptly refund to you a portion of the total Charges which you have paid to us under this Agreement. The portion to be refunded shall be the same percentage of the Charges as the following: the number of full months by which this Agreement is curtailed out of the total number of months for which this Agreement was due to last from beginning to end before it was terminated.
33. If you breach or permit a breach of the terms of the licence granted to you in this Agreement we may give you written notice immediately terminating this Agreement. You acknowledge that such a breach may cause us irreparable harm in respect of which it may be difficult for us to ascertain financial loss. Accordingly, in addition to any other rights that we have, you acknowledge that we shall be entitled to seek injunctive relief in respect of such breach.
34. Without prejudice to the other rights of termination expressed in this Agreement, either party may terminate this Agreement by written notice to the other if:
(a) a voluntary agreement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of the other's assets or an undertaking or a resolution or petition to wind up the other is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order or if the other party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
(b) the other party fails to perform any material obligation hereunder and (in the case of a remediable breach) fails to remedy the breach within 30 days of receipt of notice so to do, which it does not remedy within 30 days after receiving written notice of the breach.
35. Immediately following termination you shall cease using any username and password in relation to the Website and cease using the Website from within your designated Internet Protocol address range, and, if we so require, delete or return as we direct from all computer hardware and storage media and otherwise destroy all copies of Materials (in any form or in any media) that we have made available or supplied to you. You shall warrant that you have done these acts within 30 days of termination. You shall also immediately pay to us any Charges that are outstanding.
36. Termination of this Agreement will be without prejudice to any other rights or remedies which you or we may be entitled to under this Agreement or at law and will not affect any accrued rights or liabilities of either you or us nor the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination.
Confidentiality
37. Neither party ("the receiving party") shall at any time whether before or after the termination of this Agreement except as required to perform its respective rights and obligations under this Agreement, use, copy, adapt, alter, disclose or part with possession of any information or data of or about the other ("the disclosing party") which is disclosed or otherwise comes into the receiving party's possession directly or indirectly as a result of this Agreement all of which information shall be deemed to be of a confidential nature whether marked confidential or not ("Confidential Information"). This obligation shall not apply to Confidential Information:
(a) which the receiving party can prove was in its possession at the date it was received or obtained; or
(b) which the receiving party obtains from some person with good legal title thereto other than from or on behalf of the disclosing party; or
(c) which comes into the public domain otherwise than through the default or negligence of the receiving party; or
(d) which is independently developed by or for the receiving party; or
(e) which is required to be disclosed to the extent required by law, court order or a governmental agency.
38. You acknowledge that our provision of the Service may involve the disclosure to you of processes, operations and set-ups that contain proprietary information and Confidential Information ("Trade Secrets"). Notwithstanding the obligations of confidentiality on you under paragraph 37 above, you agree that, unless expressly permitted in writing by us, you will not use such Trade Secrets for your own purposes or provide or otherwise disclose or make any such Trade Secrets available for any reason to any other person, firm, company or organisation.
39. You shall ensure that your employees, agents and sub-contractors who have, or may have, access to our Confidential Information are bound by an undertaking in substantially the same terms as those placed on you under this Agreement.
40. These obligations of confidentiality shall continue after termination of this Agreement.
Publicity
41. Each party may publicise the existence of this relationship provided this is done in a fair and accurate way.
Limitation of liability
42. Nothing in this Agreement shall exclude or restrict liability for death or personal injury.
43. Neither party shall be liable to the other for any indirect or consequential loss (including without limitation loss of actual or anticipated profits, business, revenue, goodwill, anticipated savings or data) whether arising from negligence, breach of contract or otherwise.
44. Except as set out above, our liability in contract, tort or otherwise arising out of or in connection with this Agreement shall in respect of any one or more incidents not exceed the total Charges which we received from you in the 12 months preceding the date on which the incident occurs.
45. The provisions of this section (paragraphs 42 to 45 inclusive) shall continue after the termination of this Agreement.
Assignment
46. You shall not assign, charge, transfer, sub-contract or purport to assign, transfer or sub-contract any of your rights or obligations under this Agreement without our prior written consent. We will not unreasonably withhold such consent. We may assign, charge, transfer or sub-contract any of our rights or obligations under this Agreement to any of our subsidiary or affiliated companies, or to any other person as part of a merger, reorganisation or sale of our business or our assets.
Notices
47. Any notice, invoice or other document under this Agreement shall be duly given if left at, or sent by post, or facsimile transmission (confirmed by letter sent by post) to the other party's registered office or any other address agreed between the parties. Notices in respect of termination or breach shall be sent by recorded delivery.
Force Majeure
48. We shall not be liable for any delay or failure to perform any obligation under this Agreement insofar as the performance of such obligations is prevented by an event or by matters beyond our reasonable control (including, but not limited to, failure of performance by a third party, earthquake, labour disputes, riots, government or relevant regulatory requirements, failure of computer equipment, terrorism, failures or delays of sources from which information or data is obtained).
Miscellaneous
49. Except in respect of extensions to the term of this Agreement, this Agreement may only be modified if the modification is agreed in writing or by e-mail or other durable medium, in each case by a duly authorised representative of each party.
50. This Agreement constitutes the entire understanding between the parties relating to the subject matter hereof and supersedes any and all previous agreements, arrangements, statements and understandings whether oral or written relating to the subject matter, except for any fraud or fraudulent representation by either party. Each of the parties acknowledges that no representation has been made to it or relied upon by it except as is recorded in this Agreement.
51. The failure to enforce, at any time, the provisions of this Agreement or to require, at any time, performance by the other parties of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement (or any part), or the right of any of the parties thereafter to enforce such provision in accordance with this Agreement.
52. If any provision of this Agreement is held to be invalid or unenforceable by any judgment of a tribunal of competent jurisdiction, the remainder of the terms and conditions shall not be affected by such judgment and this Agreement shall be carried out as nearly as possible according to its original terms and intent.
53. This Agreement does not and is not intended to confer any rights to any third party. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
54. This Agreement shall be governed by and determined in accordance with the laws of England. All dealings, correspondence and contacts between us shall be made or conducted in the English language, unless we agree expressly or by our conduct to deal, correspond or contact with you in another particular language.
55. In the event of a dispute over its interpretation or execution, the courts of England and Wales (the "Court") shall have exclusive jurisdiction and you hereby irrevocably agree to submit to the jurisdiction of the Court.
56. Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties.
57. We shall keep a record of this Agreement until six years after we have accepted it. However, for your future reference, we advise and recommend that you print and keep a copy of this Agreement and keep it for your future reference.
58. In this Agreement:
the headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership; and
references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
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