TERMS AND CONDITIONS
USA V 041602 Mintel and GNPD
The Licensee has
requested Mintel International Group Limited (hereafter, "Mintel") to
supply access to its Services (as defined below), and Mintel has agreed
to supply such Services on the Terms and Conditions set forth below.
By signing the Order
Form (as defined below), the contracting party (the "Licensee") unequivocally
accepts the Terms and Conditions set forth herein:-
1. DEFINITIONS
In these Terms
and Conditions, the following terms shall have the following meanings:-
1.1 Authorized
Users
One or more current
employees of the Licensee, as identified on the Order Form, who have
either been issued with a password or other authentication, or who have
provided Mintel with the IP address of the terminal(s) from which access
to the Services will be gained, and who are located at one of the one
or more premises identified on the Order Form, or in the case of Services
provided in hard copy format, who are employees of the Licensee.
1.2 Fees
The fees and conditions
of payment set out in the Order Form, which may be further modified
as agreed by the parties from time to time. Local applicable sales or
state taxes will be added to the Fee when invoiced.
1.3 Services
Mintel database
research services including, but not limited to, marketing intelligence
reports and databases, and including the Global New Product Database
(GNPD) and derivatives thereof, published from time to time by Mintel
in electronic (via the world wide web or inter/intranet), and/or hard
copy format, the contents of which relate to a variety of market sectors
and territories which are, subject to these Terms and Conditions, available
on the Site or from Mintel directly, and as more particularly specified
on the Order Form.
1.4 Secure Network
A network (whether
a standalone network or a virtual network within the internet) which
is accessible only to Authorized Users with the prior approval of the
Licensee, whose identity is authenticated at the time of login and periodically
thereafter consistent with current best practice, and whose conduct
is subject to regulation by the Licensee.
1.5 Site
Mintel's web sites,
including www.mintel.com, www.gnpd.com, www.ci.mintel.com and other
sites which may be advised by Mintel from time to time.
1.6 Order Form
The form, signed
and dated on behalf of the Licensee, accepting these Terms and Conditions,
and which specifies, inter alia, the level of Services to be provided,
details and locations of Authorized Users, and the dates for the initial
Subscription Period.
1.7 Contract
The entire agreement
as between Mintel and the Licensee as set forthin the Order Form and
these Terms and Conditions.
2. LICENSE AND PAYMENT
2.1. Subject to
these Terms and Conditions, Mintel hereby grants the Licensee the non-exclusive
and non-transferable right:-
2.1.1. To give
Authorized Users access to the Services on the Site via a Secure Network;
and
2.1.2. To use
the Services made available by Mintel in hard copy format and/or through
the internet/intranet.
2.2. The license
granted above shall commence on the date of signing the Order Form,
and, subject to the provisions relating to early termination as set
out in Clause 6, shall continue for a period of thirty-six (36) months
from the date of signing and, unless terminated pursuant to Clause 6,
shall automatically continue for consecutive 36-month periods thereafter,
or such other periods as may have been agreed between the parties in
writing on the Order Form (the "Subscription Period(s)").
2.3. The Licensee
shall pay annual Fees to Mintel, first within thirty (30) days of signing
the Order Form and then on each anniversary thereafter (or within thirty
(30) days of the commencement of each subsequent Subscription Period
provided for at Clause 2.2 above).
3. PERMITTED USES
The License granted
at Clause 2.1 above permits the Licensee and Authorized Users to do only
the following acts:-
3.1. The Licensee
may, subject to Clause 4 below:-
3.1.1. Allow Authorized
Users to have access to the Services on the Site via a Secure Network;
and/or
3.1.2. Display,
download or print the information comprised in the Services for the
purpose of internal marketing or testing, or for training Authorized
Users as stated on the Order Form, or as agreed to in writing by both
parties; and/or
3.1.3. Allow Authorized
Users to read, store and pass to other Authorised Users in original
covers/binding/format for Services provided in hard copy format.
3.2. Authorized
Users may, subject to Clause 4 below:-
3.2.1. Search,
view, retrieve and display the information included in the Services;
3.2.2. Electronically
save the information included in the Services only to the extent and
for the time period necessary to use it for the purpose for which
it was downloaded and in any event not for a period in excess of two
(2) weeks from the date of download;
3.2.3. Distil,
précis, digest and analyse the information included in the Services
for the purposes of endeavoring to secure new business (a "Pitch")
PROVIDED THAT, as a maximum, ONLY the lesser of two point five per
cent (2.5%) of any single Mintel report forming part of the Services,
and twenty five percent (25%) of a section within any single Mintel
report, (such percentages to exclude indexes and contents pages) is
included by way of a direct extract. For GNPD services, up to ten
(10) records may be incorporated in any Pitch;
3.2.4. Print
off single copies of selections of the information included in the
Services with the source clearly identified; and/or
3.2.5. Distribute
single copies of selections of the information comprised in the Services
in printed or electronic format to other Authorized Users, with the
source clearly identified, subject to the two (2) week electronic
storage provision in 3.2.2.
3.3. Authorized
Users may, additionally, subject to Clause 4 below, incorporate selections
of the information included in the Services in printed or electronic
format for internal business purposes. Each such item shall carry appropriate
acknowledgement of the source.
3.4. The Licensee
and Authorized Users must at all times when accessing the Services on
the Site abide by Mintel's Conditions of Use of the Services as appearing
on the Site from time to time, the terms of the Conditions of Use to
be consistent with (and not more widely drawn than) this Contract.
4. PROHIBITED USES
4.1. For the avoidance
of any doubt, the license granted at Clause 2.1 above does not allow
the Licensee or any Authorized Users to:-
4.1.1. Remove
or alter Mintel's Conditions of Use of the Services or the copyright
notices or other means of identification or disclaimers as they appear
on the Services, on the Site or on any hard copies thereof;
4.1.2. Systematically
make copies, electronic or otherwise, of multiple extracts of the
information included in the Services for any purpose;
4.1.3. Provide,
by electronic means or otherwise, to a user who is not an Authorized
User, any part of the information included in the Services; or
4.1.4. Mount or
distribute any part of the information included in the Services on
any electronic network or otherwise, including without limitation
the internet and the world wide web or otherwise publish, broadcast
or display any such information in public.
4.2. Mintel's explicit
written permission must be obtained in order to:-
4.2.1. Distribute
the information included in the Services to anyone other than Authorized
Users;
4.2.2. Publish,
distribute or make available the information included in the Services,
works based on the information included in the Services or works which
combine such information with any other material, other than as expressly
permitted in these Terms and Conditions; and/or
4.2.3. Alter,
abridge, adapt or modify the information included in the Services,
except to the extent necessary to make it perceptible on a computer
screen or as otherwise permitted in these Terms and Conditions to
Authorized Users. For the avoidance of doubt, no alteration of the
words or their order is permitted.
4.3. The creation
and/or operation by the Licensee (or assisting in any way in the creation
and/or operation) of services competitive or potentially competitive
to those supplied by Mintel is prohibited.
5. UNDERTAKINGS AND
WARRANTIES
5.1 Mintel warrants
to the Licensee that, to the best of its belief, it is legally entitled
to provide the Services. Mintel shall indemnify and hold the Licensee
harmless from and against any direct loss, damage, cost, liability or
expense (including reasonable legal and professional fees) arising out
of any legal action taken against the Licensee claiming actual or alleged
breach of this warranty. This indemnity shall not apply if the Licensee
has amended or modified the information included in the Services in
any way not permitted by these Terms and Conditions or if the Licensee
has materially breached these Terms and Conditions.
5.2 Subject to
the format of the Services to be provided by Mintel as stipulated on
the Order Form, Mintel shall make the Services available to the Licensee
and to Authorized Users over the world wide web via the Site (and will
also provide Mintel's access control system).
5.3 Mintel shall
also:-
5.3.1 Use all
reasonable efforts to ensure that its server has adequate capacity
and bandwidth to support the usage of the Licensee at a level commensurate
with the standards of availability for information services of similar
scope operating via the world wide web, as such standards evolve from
time to time during the Subscription Period(s); and
5.3.2 Use all
reasonable efforts to make the Services available to the Licensee
and to Authorized Users at all times, save for routine maintenance,
and to restore access to the Services as soon as possible in the event
of an interruption or suspension of the service.
5.4 Mintel reserves
the right at any time to withdraw from the Services any item or part
of an item for which it no longer retains the right to publish, or which
it has been alleged may infringe copyright or is defamatory, obscene,
unlawful or otherwise objectionable. Mintel may give e-mail notice to
the Licensee of any such withdrawal. If the withdrawn material represents
more than ten percent (10%) of the information included in the Services,
Mintel shall make a pro rata refund of the Fee, taking into account
the amount of material withdrawn, the length of time such material was
unavailable to the Licensee, and the remaining unexpired portion of
the Subscription Period.
5.5 Mintel shall
provide usage information for the Licensee's internal use only. If Mintel
assigns its rights to another party under Clause 9.1 hereof, the Licensee
may at its discretion require the assignee either to keep such usage
information confidential or to destroy it.
5.6
5.6.1 Mintel
will use all reasonable efforts to ensure that the Services and any
software relating thereto provided by Mintel will perform in accordance
with any Mintel user guide that is available to the Licensee. IN THE
EVENT OF ANY FAILURE OF THE SERVICES, MINTEL'S OBLIGATION SHALL BE
LIMITED TO USING ITS REASONABLE EFFORTS TO REMEDY ANY DEFICIENCIES
IN THE AFFECTED SERVICES, OR AT ITS OPTION, TO CANCELLING, CREDITING
OR REFUNDING THE FEES DUE FROM THE LICENSEE IN RESPECT OF ANY PERIOD
IN EXCESS OF FIVE (5) WORKING DAYS IN ANY CALENDAR YEAR FOR WHICH
THE SERVICES HAVE FAILED TO PERFORM CORRECTLY IN ALL MATERIAL RESPECTS.
THE OBLIGATION TO CORRECT DEFECTS OR CANCEL, CREDIT OR REFUND A PROPORTIONATE
PART OF THE FEES PAYABLE BY THE LICENSEE FOR THE PRECEDING 12-MONTH
PERIOD SHALL CONSTITUTE THE FULL EXTENT OF MINTEL'S LIABILITY IN RESPECT
OF ANY LOSS OR DAMAGE SUSTAINED BY THE LICENSEE WHETHER CAUSED BY
BREACH OF THESE TERMS AND CONDITIONS, MISREPRESENTATION, NEGLIGENCE
OF MINTEL (OR ITS EMPLOYEES OR AGENTS) OR FROM ANY OTHER CAUSE, AND
IN PARTICULAR, MINTEL SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, ECONOMIC
OR OTHER DIRECT OR INDIRECT LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED
TO ANY DAMAGES PAYABLE TO A THIRD PARTY, LOSS OF PROFITS OR WASTED
RESOURCES) SUFFERED BY THE LICENSEE, PROVIDED THAT IF FOR ANY REASON
THIS PROVISION IS INVALID OR UNENFORCEABLE, THE MAXIMUM AGGREGATE
LIABILITY OF MINTEL SHALL NOT EXCEED THE TOTAL FEES PAYABLE BY THE
LICENSEE FOR THE PRECEDING PERIOD OF TWELVE (12) MONTHS. THE FOREGOING
EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY IN THE CASE
OF DEATH OR PERSONAL INJURY, OR IN THE CASE OF THE GROSS NEGLIGENCE
OR WILFUL MISCONDUCT OF MINTEL.
5.6.2 EXCEPT
AS PROVIDED IN CLAUSE 5.6.1 ABOVE, THE LICENSEE AGREES THAT THE SERVICES
ARE PROVIDED "AS IS"; MINTEL MAKES NO REPRESENTATION OR WARRANTY WITH
RESPECT TO THE ACCURACY, COMPLETENESS, OR CURRENTNESS OF THE INFORMATION
INCLUDED IN THE SERVICES; AND MINTEL SPECIFICALLY DISCLAIMS ANY OTHER
WARRANTY, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MINTEL SHALL
NOT BE LIABLE ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR
LOSSES. THE LICENSEE AGREES THAT IN NO EVENT WILL MINTEL BE LIABLE
FOR THE RESULTS OF THE LICENSEE'S USE OF THE SERVICES, THE LICENSEE'S
INABILITY OR FAILURE TO CONDUCT ITS BUSINESS, OR FOR INDIRECT, SPECIAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES) ARISING FROM THE USE OF OR INABILITY TO USE THE SERVICES
OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED
TO, LOSS OF REVENUE, ANTICIPATED PROFITS OR BUSINESS, OR THE COST
OF PROCURING SUBSTITUTE SERVICES. IN THE EVENT STATE LAW REGARDING
EXCLUSION OR LIMITATION OF WARRANTIES OR DAMAGES MAY LIMIT THE APPLICABILITY
OF THE ABOVE LIMITATIONS, THE TOTAL AGGREGATE LIABILITY OF MINTEL
FOR ANY CLAIMS, LOSSES OR DAMAGES SHALL NOT EXCEED THE CHARGES PAYABLE
BY THE LICENSEE FOR THE PRECEDING PERIOD OF TWELVE (12) MONTHS.
5.6.3 The Licensee
shall notify Mintel in writing immediately and exclusively at any
time the Licensee believes it may have discovered a potential or actual
error(s) in any of the information included in the Services. Upon
receipt of any such written notice from the Licensee, Mintel will
use all reasonable efforts to (i) investigate any such potential or
actual error(s) and (ii), if necessary, rectify and correct any such
error(s) so discovered.
5.7 The Licensee
hereby acknowledges Mintel's ownership of the intellectual property
rights (including all patents, trade marks, copyrights, database rights,
confidential information, trade secrets and knowhow) that are utilized
by Mintel in connection with its provision of the Services (the "Intellectual
Property Rights"). In order to safeguard such Intellectual Property
Rights, the Licensee shall:-
5.7.1 Ensure that
all Authorized Users are appropriately notified of the importance
of respecting the Intellectual Property Rights and Conditions of Use
of the Services;
5.7.2 Ensure that
Authorized Users are made aware of and agree to abide by:-
5.7.2.1 these
Terms and Conditions; and
5.7.2.2 Mintel's
Conditions of Use of the Services as they may appear on the Site
from time to time
5.7.3 Monitor
compliance with these Terms and Conditions and Mintel's Conditions
of Use of the Services, and immediately on becoming aware of any unauthorized
use of the Services or other breach of the terms of these Terms and
Conditions, inform Mintel in writing and take all steps, including
appropriate disciplinary action, both to ensure that such activity
ceases and to prevent any recurrence;
5.7.4 Where the
Licensee does not provide IP addresses pursuant to Clause 5.7.8, issue
passwords or other access information only to Authorized Users, and
ensure that Authorized Users do not divulge their passwords or other
access information to any third party, including when Authorised Users
leave the employ of the Licensee;
5.7.5 Keep full
and up-to-date records of all Authorized Users and their access details,
and, if requested, provide Mintel with periodic lists of additions,
deletions or other alterations to such records as agreed between the
parties from time to time;
5.7.6 Ensure
that only Authorized Users are permitted access to the Services;
5.7.7 Investigate
immediately should Mintel advise the Licensee of any unusual downloading
activity by any Authorized User(s);
5.7.8 Provide
Mintel wherever possible with the IP addresses, or range of IP addresses,
of its computers/networks to allow Mintel to restrict access to the
Licensee's computers/networks.
5.8 Each party
shall safeguard the intellectual property (including the Intellectual
Property Rights), Confidential Information and proprietary rights of
the other party. In particular, each party acknowledges that, other
than Mintel's Conditions of Use of the Services, these Terms and Conditions
including the information on the Order Form are hereby deemed to be
confidential.
5.9 In the event
that the Licensee obtains or accesses Services not specified on the
Order Form as a result of an intentional or unintentional breach of
these Terms and Conditions by a third party or otherwise, and the Licensee
then uses such Services in the course of its business, the Licensee
shall promptly upon such discovery notify Mintel in writing and shall
pay an additional Fee equivalent to the then rate card value of such
Services.
6 TERMINATION
6.1 Either party
may terminate the Contract by serving notice in writing at any time
during the period of one (1) month prior to the month in which the then
current Subscription Period (as defined in Clause 2) ends. In the event
that notice is not so served, then unless otherwise agreed, the Fee
shall be increased by the change in the Consumer Price Index during
the Subscription Period just expired.
6.2 The Contract
may also be terminated if the non-defaulting or solvent party gives
written notice to the other in the following circumstances:-
6.2.1 The Licensee
defaults in making payment of any Fee; or
6.2.2 Either party
commits a material or persistent breach of any term of the Contract,
including these Terms and Conditions, and fails to remedy the breach
(if capable of remedy) within fourteen (14) days of notification in
writing by the other party; or
6.2.3 Either
party becomes insolvent or becomes subject to receivership, liquidation
or similar external administration.
6.3 Mintel may
also terminate the Contract with immediate effect if the Licensee uses
the Services for one or more of the Prohibited Uses as set out at Clause
4 above.
6.4 On the date
of termination the Licensee shall immediately cease to distribute or
make available the Services to Authorised Users. Notwithstanding termination,
the Licensee shall forthwith upon termination pay all Fees that are
due and payable. For the avoidance of doubt, termination shall not effect
the parties ongoing obligations in this Agreement save for the obligations
of Mintel post-termination to provide ongoing Services under Clause
2
6.5 On termination
of the Contract due to a material and substantiated breach of any term
thereof by Mintel, Mintel shall forthwith repay to the Licensee a pro
rata refund of the unexpired portion of the Fee.
7 CONFIDENTIALITY
7.1 Each party undertakes
to keep confidential, and not to disclose to any third party or to use
itself, any confidential or secret information in any form directly
or indirectly belonging or relating to the other party, its affiliates,
its or their business affairs, disclosed to or received by the other
party during the Term of the Contract (collectively, "Confidential Information").
7.2 Each party undertakes
to disclose Confidential Information of the other party only to those
of its officers, employees, agents and contractors to whom and to the
extent to which disclosure is necessary for the purposes contemplated
under the Contract, and each such party agrees to take appropriate measures
to ensure compliance by such officers, employees, agents and contractors
with the terms of this Clause 7.
7.3 The above obligations
of confidentiality and non-use shall not apply to information or material:-
7.3.1 which is
named by the disclosing party prior to receipt by the receiving party
as evidenced by documents in the possession of the receiving party
at the time of disclosure;
7.3.2 which, after
receipt from the disclosing party, is disclosed to the receiving party
by a third party having the legal right to do so;
7.3.3 which is
available to the public at the time of receipt; or
7.3.4 which becomes
available to the public after receipt from the disclosing party through
no fault of the receiving party.
7.4 Where the Service
enables the Licensee to append its own annotations to the information,
these annotations will be confidential to the Licensee, and will not
be accessible to other licensees of the Service nor to Mintel's employees
(except for essential database maintenance work performed by Mintel's
IT personnel).
8 AFFIRMATION OF THE
BASIS OF CERTAIN ASPECTS OF THE MARKET RESEARCH INDUSTRY
The visual/aural
or other sensory representation of any images of any advertisements/mailing
pieces /promotions/statements/offers/communications /products /fascias
etc, only forms an incidental element of the service, and as such Mintel
is not in breach of any copyright or other restrictions. Nevertheless,
for the sake of good order, the Licensee is hereby granting indefinite
permission to Mintel to any extent necessary, to include its advertisements/mailing
pieces /promotions /statements/offers/communications etc, in various media
as they may appear on the Service which for the avoidance of doubt includes
those created before, during or subsequent to the term hereof.
9 GENERAL
9.1 The Contract
and the rights granted under these Terms and Conditions may not be assigned
by either party to any other person or organization without the prior
written consent of the other party, which consent shall not unreasonably
be withheld. For the avoidance of doubt, the Licensee shall have no
right to sub-license any of its rights granted hereunder.
9.2 If rights in
all or any part of the Services are assigned to another publisher/licensor,
Mintel shall use its reasonable efforts to ensure that the material
terms and conditions of these Terms and Conditions are maintained.
9.3 Variations to
these Terms and Conditions are only valid and binding if they are recorded
in writing and signed by both parties.
9.4 Any notices
to be served on either of the parties by the other shall be delivered
by hand or sent by U.S. certified or registered mail, return receipt
requested, to Mintel at 213 West Institute Place, Chicago, Illinois
60610, and to the Licensee as identified on the Order Form, or to such
other address as notified by either party to the other as its address
for the service of notices and all such notices shall be deemed to have
been received upon receipt if delivered by hand or three (3) working
days after deposit in the United States mail.
9.5 Neither party
shall be liable in any way for failure or delay in performing its obligations
under these Terms and Conditions if the failure or delay is due to causes
outside the reasonable control of the party in default.
9.6 The Licensee
shall keep all records necessary to enable the verification of its compliance
with the terms of these Terms and Conditions, particularly those terms
set out in Clause 5.7, and agrees that Mintel shall have access to,
and the right to examine upon having served reasonable written notice,
the Licensee's records during normal business hours.
9.7 Should the Licensee
acquire or merge with a business entity which is also a licensee of
Mintel, then both agreements with Mintel shall run to the end of their
respective subscription periods, after which point (assuming such acquisition
or merger has been brought to Mintel's attention, which the Licensee
agrees to do as soon as practicable), the Fees payable shall be determined
by reference to Mintel's current rate card at that time. The renewal
of the combined agreement shall begin on the later of (i) the end of
the Subscription Period of this Contract and (ii) the end of the subscription
period under the other agreement. The agreement that expires first shall
renew automatically until the later anniversary date, and the Fees payable
under such renewed agreement, on a pro rata basis, shall be increased
by five percent (5%) over the then-applicable Fees.
9.8 The failure
of any party to enforce any provision on any one occasion shall not
affect its right to enforce another provision or the same provision
on another occasion.
9.9 In the event
that any provision of the Contract is held to be invalid, the remainder
of the provisions shall continue in full force and effect.
9.10 The Contract
shall be governed by and construed in accordance with the internal law,
and not the law of conflicts, of the State of Illinois, applicable to
contracts made and wholly to be performed in that state.
Any dispute or controversy
arising under this Contract shall be settled by arbitration to be held
in the City of Chicago in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction, and the parties consent to the
jurisdiction of the United States District Court or any other court having
situs within Chicago, Illinois for this purpose. Any process or other
papers under this provision may be served outside the State of Illinois
by U.S. certified or registered mail, return receipt requested, or by
personal service, provided a reasonable time for appearance or response
is allowed.
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