terms & Conditions
1. Definitions
1.1. “Additional Service” means any service in addition to the provision of the Service requested by the Purchaser from time to time for which the Company is qualified to perform and which it may by agreement in writing perform, in addition to the Service.
1.2. “Authorized Users” means (i) in the case of the Service when provided in electronic format, one or more employees of the Purchaser or any Sub-Contractor(s) of the Purchaser, as identified in the Contract, who (a) either have been issued a password or other authentication by the Company, or have provided the Company with the IP address of each terminal from which the Service will be gained and (b) physically report to and work at the Site or work at Remote Locations via a Secure Network; or (ii) in the case of Service provided in
print format, are employees of the Purchaser.
1.3. “Company” means Innova Market Insights B.V., a private company, incorporated under the laws of the Netherlands, having its principal place of business at Velperweg 18, 6824 BH Arnhem, the Netherlands, registered in the Trade Registry under number 09128938.
1.4. “Conditions” means the standard terms and conditions for the provision of the Service set out herein and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Purchaser.
1.5. “Consents” means any consent, license, approval, permit or other authorization whatsoever required prior to the use of the Service by the Purchaser.
1.6. “Content” means information comprised in the Innova Database.
1.7. “Contract” means a contract in writing, governing the provision of the Service by the Company to the Purchaser, and containing, among other things, such details as the name(s) and address(es) of the Purchaser, the consideration for the provision of the Service paid by the Purchaser to the Company and the Term or period of time during which the Company shall provide the Service to the Purchaser. When these Terms and Conditions are appended to the Contract, then these Terms and Conditions shall form part of that Contract.
1.8. “Intellectual Property” means all data located on the Innova Database, patents, trademarks, service marks, registered designs, applications for any of the foregoing, trade and business names, unregistered trademarks and service marks, know-how, copyright, rights in designs, inventions, database rights, moral rights, rights under licenses and consents in relation to any such rights and rights of the same or similar effect or nature in any part of the world.
1.9. “Intellectual Property Rights” means all intellectual property rights used or required to be used by the Company and/or the Purchaser (as the case may be).
1.10. “Party” or “Parties” means one or more of the Company and the Purchaser, as appropriate.
1.11. “Purchaser” means the person(s), association, business, limited liability company, partnership or incorporated company to which the Service is provided by the Company pursuant to the Contract, and specifically excluding any assigns, affiliates, successors or subsidiaries of Purchaser.
1.12. “Remote Location” means a particular actual location(s), and not a Site, where a single Authorized User connects to or uses the Service neither among other Authorized Users nor employees of the Purchaser as approved in writing by the Company, prior to access by any Authorized User to the Service from such location(s).
1.13. “Secure Network” means a network (whether a designated network or a virtual network on the internet) operated and regulated by the Purchaser, accessible to Authorized Users only with the prior approval of the Purchaser, requiring identity to be authenticated at the time
of login and periodically thereafter consistent with then current best practice and procedure.
1.14. “Service” means the access to the Company’s Database (the “Innova Database”), being an on-line internet-based resource provided by the Company to the Purchaser, on execution of the Contract by both the Company and the Purchaser. The access to the Innova Database is sold to
the Purchaser on a per Site basis and is a means by which the Purchaser can search the data contained therein.
1.15. “Site” means the specific IP address by which the Purchaser identifies itself for the purposes of access to the Innova Database at that Site, or more generally the actual location of the Purchaser as specified in the Contract.
1.16. “Sub-Contractor” means an independent contractor engaged by the Purchaser who (i) is approved in writing by the Company prior to using the Service; (ii) is subject to obligations no less stringent than are placed upon the Purchaser under the Contract; and (iii) exclusively, only uses the Service on behalf of, and while providing services to the Purchaser.
2. Application and Term
2. Application and Term
2.1 These Terms and Conditions shall apply to and shall be incorporated in the Contract between the Company and the Purchaser for the provision of the Service unless otherwise specifically agreed between the Parties.
2.2 Subject to the Company obtaining requisite Consents if any the Company shall provide the Service to the Purchaser for the term agreed between the Company and the Purchaser under the Contract and thereafter until termination in accordance with the provisions in that regard contained herein (the “Term”).
2.3 At the Company’s discretion, the Company may provide to the Purchaser as part of the Service a subscription to The World of Food Ingredients for the Term.
3. Orders and Specifications
3. Orders and Specifications
3.1 The Purchaser shall be responsible to the Company for ensuring the accuracy of any information provided by it for inclusion in the Contract (including any applicable specifications) submitted by the Purchaser, and for giving the Company any necessary information required by it to provide the Service within sufficient time to enable the Company to provide the Service.
3.2 The Company reserves the right to make any changes to the data contained in the Innova Database, which are required to conform with any applicable law or statutory requirement or as the Company sees fit in order to continue or to enhance the Innova Database. The Company reserves the right to amend, vary, remove, increase or decrease the data in the Innova Database at any time and without notice to the Purchaser save that the Database shall not be substantially transformed after the date of the Contract in such a manner as would result in the quality of the Service being significantly less than was provided to the Purchaser upon entering into the Contract. All enhancements and updates to the Innova Database made by Company from time to time shall be provided to the Purchaser at no additional charge and is included in the price.
3.3 Any typographical, clerical or other error or omission in any sales or marketing literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3.4 In keeping with the Company’s IP entitlements and rights, the Purchaser will: (i) prior to entering into the Contract, make commercially reasonable endeavors to provide the Company with all the IP addresses of the Licensee’s computers and/or networks where applicable, from which the Service will be gained, in order to allow the Company to restrict access as required by the Company, to such IP addresses; (ii) upon receipt of notice in that regard from the Company, to immediately investigate the occurrence of any unusual downloading activity by any Authorized User, and immediately report back to the Company outlining in detail what had occurred.
4. Consents
4.1 The Company shall obtain and maintain in compliance, with the reasonable assistance of the Purchaser, all Consents, if any, and any conditions attaching thereto required by the Company and its personnel to perform the Service.
5. Additional Obligations
5.1 Prior to the Company providing the Service, the Purchaser shall outline in writing to the Company, the individuals within its business that will have access to the Innova Database and identify those individuals by IP address. The Purchaser is purchasing access to the Innova Database in accordance with the terms of the Contract and it is not per se “purchasing the database”. Accordingly, any downloading of the Innova Database in whole or in part (save and except for information downloaded as a result of performing a search) by the Purchaser, by electronic means or otherwise, is strictly prohibited under these Terms and Conditions. For the duration of the Contract, there shall be no limit on the
number of searches that the Purchaser can perform on the Innova Database.
5.2 The download limit for products (per account/user) and for reports (per account/user per year) is based on the Company’s Fair Use Policy. The Company’s Fair Use Policy means that the Purchaser should use the Innova Database in a normal way, based on the number of accounts/users. Excessive use of the Innova Database is not allowed.
5.3 Any data downloaded from the Innova Database and then used by the Purchaser in a presentation or other form of dissemination must carry the Innova Database logo, and shall not be used without the prior written approval of the Company.
5.4 The Company shall provide the Service in accordance with the terms of the Contract and with reasonable care and skill; provided, however, it is hereby acknowledged by the Purchaser that all descriptions and particulars furnished in quotations, price lists, literature or any other document issued by the Company are for the purpose of general information only and do not constitute a warranty or representation as to quality, performance, suitability for purpose, dimension, workmanship, freedom from defects or any other attribute.
5.5 Access to the Innova Database granted to the Purchaser and/or its licensed Sub-Contractors, agents and respective personnel under the Contract shall never be deemed to grant or entitle the Purchaser and/or its licensed Sub-Contractors, agents and respective personnel to any legal, equitable or other estate or interest in the Database. Save as set out herein, the Company shall be responsible for ensuring the Innova Database complies with all applicable laws relating thereto and shall be responsible for all costs related to or in connection with such compliance.
5.6 Upon receipt of any notice regarding any potential inaccuracy of the Service, the Company will make its reasonable efforts to (i) investigate any such potential or actual inaccuracy; and (ii) if necessary, rectify and correct any actual inaccuracy. To the extent that the Service permits such a commentary, the Company will provide a commentary regarding and clarifying the inaccuracy to the Purchaser and the Purchaser shall then attach the said commentary to the inaccuracy.
5.7 In using the Innova Database, the Purchaser shall comply with any technical limitations in the Innova Database software that only allow one to use it in certain ways. The Purchaser shall not:
• work around any technical limitations in the Innova Database software;
• reverse engineer, decompile or disassemble the Innova Database software;
• use components of the Innova Database software to run applications not running on the software; or
• make copies of the Innova Database software.
6. Non-solicitation
6.1 During the Term of the Contract and for one year after any termination of the Contract, the Purchaser will not, without the prior written consent of the Company, either directly or indirectly, on the Purchaser’s own behalf or in the service or on behalf of others, solicit or attempt to solicit, divert or hire away any person employed by the Company or any customer of the Company.
7. Intellectual Property
7. Intellectual Property
7.1 Although the Company has used reasonable efforts to ensure the accuracy and completeness of the Innova Database, it makes no representation in relation thereto. Similarly, although the Company believes the Innova Database and the Company’s Intellectual Property Rights
do not infringe a third party’s intellectual property rights, it makes no representations in relation thereto.
7.2 For the Term of the Contract, the Company shall grant to the Purchaser a non-exclusive, non-transferable, non-assignable revocable license (without the right to sublicense) to use the information contained in the Innova Database (and where required in that respect the Company’s IP) in order to conduct searches but for no other purpose. Under no circumstances shall the Purchaser be permitted to assign, sub-license to or grant a sub-license of the Service, directly
or indirectly, to any of the Company’s competitors.
7.3 The Purchaser is authorized to use the Innova Database for its own internal research purposes only, and may not publish, reproduce, transmit, or otherwise make available or sell any of its contents, whether in hard-copy, electronically transmitted or any other form except with the prior approval
in writing of the Company.
7.4 Under no circumstance shall the Purchaser use data downloaded from the Innova Database either on its own or in connection with other information so as to create a consolidated file to be offered online or in any other form of media to any third parties.
7.5 The Purchaser shall take all necessary steps to ensure that any persons at the Site having access to or using the Innova Database are made aware of the restrictions imposed by these Terms and Conditions and the Contract.
7.6 Save as otherwise provided herein, designs, drawings, specifications, instructions, manuals and other documents created, produced or commissioned by the Company and relating to the Innova Database and copyright therein and all other Intellectual Property Rights that are owned by the Company are and shall remain the property of the Company.
7.7 Unless explicitly permitted under the terms of this Contract, the Company disallows the Purchaser to: (i) systematically make large quantities of copies, electronic
or otherwise, of the Innova Database for any purpose; or (ii) locate-on, input or distribute any content of the Innova Database on any electronic network or otherwise, including without limitation, the internet and the world wide web, or publish, broadcast, or display any content in public.
7.8 In case of a breach of a provision of this Contract by the Purchaser, the Purchaser is liable for the damage suffered by the Company. The Purchaser hereby indemnifies and holds harmless the Company for and against all liability, damage, loss, cost or expense arising from or in connection with Purchaser’s misuse of the Company’s Intellectual Property Rights and/or the Innova Database authorized hereunder.
8. Price
8.1 All pricing shall be in Euros, USD or Sterling. The price for the Service shall be the Company’s quoted price as stated in the Contract. All prices quoted are valid for 30 days only or until earlier acceptance by the Purchaser. The Company will review the price for the Service annually and may increase the price by an amount up to three percent (3%) every year.
8.2 All prices quoted are exclusive of any applicable value added tax or any other similar taxation unless otherwise stated. The Company shall be entitled to charge and the Purchaser shall pay the Company all applicable value added tax (or such other taxes as shall from time to time be imposed by law) in respect of the Service provided at the rate prevailing at the time of completion of delivery of the Service under these Terms and Conditions.
8.3 The Company shall issue to the Purchaser an invoice in respect of all sums payable by the Purchaser to the Company under the Contract, in each case on or in advance of the date upon which the undisputed sum becomes due, and each such invoice shall be payable 30 days net from the invoice date.
8.4 Any indulgences as to time which are given on any particular occasion are not to be treated as a waiver of any rights under these Terms and Conditions. No time or indulgence allowed by the Company shall prejudice any rights or remedies which the Company has hereunder or otherwise.
8.5 Additional Services are subject to separate pricing quotes which shall be submitted to the Purchaser for approval and will thereafter give rise to an additional order and invoice; provided, however, for the avoidance of doubt, such Additional Services shall be subject to these Terms and Conditions.
9. termination
9.1 The initial term of the Contract (the “Initial Term”) shall commence as of the date specified in the Contract (“Effective Date”) and, unless sooner terminated as contained herein, shall continue in effect until the date mentioned in the Contract.
9.2 Upon the expiration of the Initial Term set forth in Section 9.1, the Contract shall be automatically renewed for the same period repeatedly (each, a “Renewal Term”, and, the Initial Term together with all Renewal Terms (as the case may be) the “Term”) upon the terms and conditions set forth herein, unless either Party provides at least sixty (60) days written notice of termination prior to the commencement of any Renewal Term, in which case the Contract shall be terminated as of the last day of the Initial Term or the then current Renewal Term.
9.3 During the Term, either Party may terminate the Contract and the provision of the Service with immediate effect if the other Party commits a material breach of its obligations and fails to remedy such breach within thirty (30) days of receiving
a written notice of default (“Default”).
9.4 Each Order shall be terminated automatically (i) if the Company or Purchaser is dissolved or goes into liquidation, (other than for the purposes of an amalgamation or reorganization not involving insolvency) or enters into any scheme of arrangement, receivership, or administration or commits any other act of insolvency; or (ii) unless otherwise agreed by the Parties if the Innova Database or any part thereof is compulsorily acquired.
9.5 Upon termination of the Contract by the Company due to the Purchaser’s Default, the Purchaser shall pay to the Company all amounts due in respect of the Service within 30 days of receipt by the Purchaser of an invoice from the Company setting out the amount due together with supporting documentation.
reement.
10. Assignment and Subcontracting
10.1 The Company may, with the prior written consent of the Purchaser, such consent not to be unreasonably withheld or delayed, subcontract any part of the Service; provided, however, that the Company may assign the provision of the Service without Purchaser’s approval upon the sale of all or substantially all the assets or ownership interests of the Company. Purchaser may not assign this Contract or any part thereof without the prior written consent of Company. The Parties acknowledge that the Service to be provided herein shall be solely for the benefit of Purchaser as presently constituted, notwithstanding any sale, assignment or merger of the Purchaser. Accordingly, the Service to be provided by the Company pursuant to the Contract is solely for the benefit of Purchaser and is not transferable to any affiliates, subsidiaries or related individuals or entities. Any entities purchased by or merged with Purchaser shall not be entitled to the Innova Database or the Services being provided herein.
11. Confidentiality
11.1 Each Party shall treat as strictly confidential and shall not disclose all or any information received or obtained as a result of entering into or performing the Contract which (i) relates to the provision of the Service (including but not limited to the Company’s reports); (ii) relates to the other Party or any aspect of its business or operations; or (iii) is clearly identified as being confidential. “Disclose”, as mentioned in the previous sentence, shall also include sharing online.
11.2 Either Party may disclose information which would otherwise be confidential if and to the extent that it is: (i) required by any court of competent jurisdiction to which disclosure is subject; provided that the disclosing Party has taken all practicable legal steps to prevent such disclosure, immediately notifies the other Party of the requirements and the terms thereof and reasonably co-operates to minimize the extent of the disclosure of the information; (ii) required by any securities exchange or agency to which either Party or any of its affiliates is subject whether or not the requirement has the force of law; (iii) as may be reasonably required by either Party to disclose in confidence to its shareholders, directors, auditors, bankers, financiers and legal, financial and other professional advisers; (iv) that the information has come into the public domain through no fault of either Party; or (v) that the other Party has given prior written approval to such disclosure (such approval not to be unreasonably withheld or delayed).
11.3 The restrictions contained in this Clause 11 shall continue to apply for three (3) years after termination of the Contract.
12. Indemnity
12.1 The Company accepts no liability for any damage, of whatever nature, arising in any way from the use of the Company’s Intellectual Property Rights and/or the Innova Database authorized hereunder including acts, omissions and/or decisions based on the information contained in the Company’s Intellectual Property Rights and/or the Innova Database authorized hereunder. The Purchaser will, to the extent permitted by law and their insurers, indemnify, defend, and hold harmless the Company from and against any and all liabilities, losses, claims, expenses, demands, complaints or actions of third parties (including employees of the Purchaser), including without limitation reasonable legal fees and expenses, arising from or relating to the use of the Company’s Intellectual Property Rights and/or the Innova Database authorized hereunder (including personal injury, death, and property damage).
13. Liability
13.1 Neither Party will be liable under the Contract to the other Party for indirect, special, exemplary, punitive, or consequential damages, including without limitation loss of goodwill and lost profits or revenue, whether or not such damages are based in contract, warranty, tort, negligence, strict liability, or otherwise (even if advised of the possibility
of such damages), except for such damages arising from:
(i) fraud or willful misconduct; (ii) any breach under the confidentiality provisions of the Contract; (iii) Purchaser’s misuse of the Company’s Intellectual Property Rights and/or the Innova Database authorized hereunder.
13.2 Any liability of the Company pursuant to the Contract with the Purchaser shall expressly be limited to the amount equal to the payments received in the case in question by the Company under the professional liability insurance taken out by the Company.
13.3 If no payment is made under the professional liability insurance for any reason, the liability of the Company shall
be limited to an aggregated amount of € 20,000.
13.4 Any liability on the part of the Company in connection with the performance of the Contract whereby loss or damage is caused to any person or property, shall be limited to the amount equal to the amount that shall be paid under the professional liability insurance taken out by the Company in the case in question.
13.5 The limitation of liability shall also apply in case of defective functioning of any hardware, software, data files, registers or other matters used by the Company in connection with the performance of the Contract.
13.6 Without prejudice to the provisions of article 6:89 of the Dutch Civil Code, a claim for compensation shall lapse if it is not presented to the competent court within one year of the date on which the Purchaser was aware, or should reasonably have been aware, of the facts giving rise to the claim.
13.7 A term indicated by the Company for the provision of the Service is of an indicative nature only, unless it is expressly indicated in writing that it concerns a final date. Also in case of an agreed final date, the Company shall only be in default after the Purchaser will have given it notice of default.
14. Proper law of contract and competent court
14.1 Any contract to which these Terms and Conditions apply shall be exclusively governed by, and construed in accordance with the laws of The Netherlands.
14.2 All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The Company and Purchaser agree that (i) there shall be three (3) arbitrators; (ii) the place of arbitration shall be Arnhem, the Netherlands; (iii) the language to be used in the arbitration proceedings shall be English; and (iv) the material laws to be applied by the arbitrators shall be Dutch Law.
ment.
15. Waiver
15.1 The failure to exercise or delay in exercising a right or remedy under these Terms and Conditions shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under a Contract or these Terms and Conditions shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
16. Severability
16.1 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provision(s)
in question shall not be affected thereby.
17. Force Majeure
17.1 The Company shall not be under any liability to the Purchaser in respect of any failure to carry out or delay in carrying out any of its obligations hereunder attributable to any cause of whatever nature outside its reasonable control. The Company shall notify the Purchaser promptly upon becoming aware of any such event. Force majeure shall in any case exist in the case of failure on the part of suppliers or other business relations of the Company, strikes, (unforeseen) government measures, terrorist attacks or a concrete threat thereof, war, fire, natural disasters, power failures, computer viruses, strikes and work interruptions, temporary unavailability or inadequate availability of hardware, software and/or internet or other telecommunication connections that are necessary for the execution of the Contract, as well as any other situation over which the Company is unable to exercise any decisive control.
17.2 The Company may suspend its obligations under the agreement during the period of force majeure. If this period lasts longer than three months, both the Company and the Purchaser are entitled to dissolve the Contract. In that case the Company is not obligated to compensate any damage, not even if the Company gains any advantage as a result of the force majeure situation.
17.3 In so far as the Company has fulfilled or will be able to fulfil its obligations arising from the Contract at the moment the force majeure occurs and independent value can be attributed to the fulfilled or still to be fulfilled part of the Contract, the Company is entitled to separately invoice the part already fulfilled or still to be fulfilled respectively. The Purchaser is obliged to pay this invoice as if it were a separate contract.
18. Notices
18.1 Any notice to be given by the Purchaser to the Company shall be in writing and shall be sent to the Company at Velperweg 18, 6824 BH Arnhem, the Netherlands and shall be sent by recorded delivery post. Any notice to be given to the Purchaser shall be in writing sent to the Purchaser at the address stated in the Contract sent by recorded delivery post. Any notice which is not returned to the sender as undelivered shall be deemed to have been given on the third day after the envelope containing same was so posted. Proof that the envelope containing notice or information was properly addressed and sent by recorded delivery post and that is has not been so returned to the sender shall be sufficient evidence that such notice has been duly given.
19. Customer Support/Performance
19.1 The Company will attempt to solve any problems with the Service via e-mail or telephone contact. The Company does warrant that the Purchaser’s access to the Innova Database will be uninterrupted. Purchaser will receive a thirty percent (30%) refund for any month during the Term when the average server-up-time is less than ninety-five percent (95%).
20. Dispute Escalation
20.1 The Parties agree to negotiate in good faith to resolve any dispute in relation to the Agreement by first attempting informal discussions between the following individuals: (i) The nominated contract manager or account manager of each Party who shall meet and negotiate in good faith to resolve the dispute and if they cannot resolve the dispute unanimously within twenty-five (25) workings days of the dispute being referred to them; then: (ii) The dispute shall promptly be referred by either Party to any persons who may be identified as authorized representatives of the Company and Purchaser. If within thirty (30) working days of the dispute having been referred to the individuals specified in this clause, no agreement has been reached, each Party shall be free to pursue the rights granted to it by the Agreement.
