IMRG Capgemini Retail Sales Index and Digital Dashboard Policy

IMRG LIMITED

TERMS AND CONDITIONS OF USE

These Terms and Conditions (“Terms” or “agreement”) set out the terms on which IMRG Limited (incorporated and registered in England and Wales with company number 08487468) whose registered office is at 16 Neal’s Yard, London WC2H 9DP (“IMRG”) licences use of the database known as the IMRG CapGemini Retail Sales Index and Digital Dashboard to you (“User” or “you”).

We licence use of the Services, the Database and Documentation to you on the basis of these Terms. We remain the owners of the Database and Documentation at all times.

You understand that by proceeding with use of the Services you agree to be bound by these Terms. These Terms shall apply and prevail over any inconsistent terms or conditions contained, or referred to any other document supplied by you, or implied by law, trade custom, practice or course of dealing.

1.   Definitions

1.1 In this agreement the following terms have the following meanings:

“Authorised Users” means the partners, employees and consultants of the Subscriber;

"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 5;

"Documentation" means any FAQs, manuals and materials (in whatever format) supplied by IMRG to aid the use of the Database;

"Fee" means the non-refundable annual licence fee (payable in advance) for a Subscription agreed between IMRG and you;

"Intellectual Property Rights" means all copyright, patent rights, trade or service marks, design rights, rights in or relating to databases, rights in computer product, rights in or relating to confidential information or any other intellectual property rights (whether registered or unregistered) throughout the world, including all rights of reversion and rights to any applications and pending registrations;

“Order” means an order or request from you to use the Services for the Fee and containing details of the agreed means of payment;

“Database” means the database known as “IMRG CapGemini Retail Sales Index and Digital Dashboard” containing overall online and sector specific data and indices;

“Purpose” has the meaning set out in clause 2.2; 

“Services” means the provision of the Database and the Documentation and the related services together with, in the case of the Super User, access to that retailer’s specific data;

“Start Date” means the date from which the Services are provided in accordance with these Terms; 

“Subscription” means a licence to use the Services on these Terms following payment of the Fee;

“Subscriber” means a subscriber to the Services;

“Super User” means the partner, employee or consultant of the Subscriber who has administrative rights to the Subscriber account and access to that Subscriber’s non-anonymised data;

“Trial” means a licence to use the Services on a non-fee-paying basis for the Trial Period on these Terms; 

“Trial Period” means period such as IMRG may agree;

1.2  The headings in this agreement are inserted for convenience only and shall not affect its construction or interpretation. Words importing the singular include the plural and vice versa. Words importing a gender shall include all genders.

1.3  Reference to any statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under them as from time to time amended, consolidated or re-enacted.

2.   Licence

2.1          In consideration of you agreeing to be bound by these Terms, and subject to any restrictions set out in these Terms (including, without limitation, clause 2.3 below), IMRG grants to you and the Authorised Users a limited, non-exclusive, non-transferable licence  to access and use the Services (a) in the case of an Order for the duration of the Subscription) and (b) in the case of a Trial for the duration of the Trial Period. 

2.2          You may use the Services for your own business purposes only, including use and reproduction of the materials generated from the Services in your internal publications subject to written acknowledgement in the publication of IMRG being the provider of the information (“Purpose”). The materials generated from the Services may not be used for external business purposes including publications or presentations.

2.3          You agree to make fair use of the Database as relevant to you and your organisation. We reserve the right to challenge any use of the Database that we deem excessive or outside the reasonable scope of your organisation and at our sole discretion may restrict access to specific users or organisations that appear to be using the Database for activities other than the Purpose.

2.4          Except to the extent set out in clause 2.2 you: (a) may only use the Services for the Purpose and for no other purposes; (b) may not allow third parties access to the Services or to the Subscriber’s user names and passwords; (c) may not use the Services on behalf of any third party (which includes providing any service to a third party using the Database) other than for the Purpose; (d) will not modify, adapt or create derivative works from the Database and the Documentation or copy the Database or Documentation other than for the Purpose; (e) will not reverse-engineer or decompile the Database; (f) will use your best endeavours to prevent unauthorised access to the Database and unauthorised access, use or copying of the Database or Documentation (or any part of them) and will notify IMRG immediately if you becomes aware of any such unauthorised access, use or copying by any person; and (g) will take reasonable steps to ensure that nobody other than Authorised Users accesses the Database.

2.5          Without limiting this clause 2 and any other restriction in this agreement, you will not use or analyse the Database in order to analyse the way in which the Database operates or the methodology behind the Database, whether as a means of developing a competing service (either by itself or using a third party to do so) or for any other purpose.

2.6          You undertake to ensure the usage of its Authorised Users complies with this clause and that on any individual ceasing to be an Authorised User (a) access is terminated such that he/she shall no longer have any ability to use the Services and/or Documentation and (b) IMRG is notified without delay.

2.7          You further undertake to ensure that on an individual ceasing to be your nominated Super User (a) access is terminated with immediate effect such that he/she shall no longer have any ability to use retail specific data of that Super Subscriber and (b) IMRG is notified without delay.

3.   Payment

3.1          The Fees for a Subscription are payable in accordance with the terms set out in the Order.

3.2          If IMRG has not received payment for Fees, other than those subject to a bona fide dispute, within 14 days after the due date, and without prejudice to any other rights and remedies of IMRG:

(a)       IMRG may, without liability to the Subscriber, suspend the access of the Subscriber to all or part of the Services while the invoice(s) concerned remain unpaid; and

(b)       interest shall accrue on such due amounts at an annual rate equal to 1% over the then current base lending rate of Barclays Bank plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

3.3          All amounts and fees stated or referred to in this agreement (a) shall be payable in pounds sterling; (b) are, other than those subject to a bona fide dispute, non-cancellable and non-refundable and (c) are exclusive of all taxes (including, without limitation, value added tax and withholding tax) which shall be added to IMRG's invoice(s) at the appropriate rate.

3.4          IMRG shall be entitled to increase the Fees once in any 12 month period by giving not less than 30 days' prior notice to the Subscriber.

3.5          IMRG reserves the right to amend or discontinue any of its subscription tiers at any time. In the event that we do so we will offer you the opportunity to carry across the monetary value of your remaining subscription as a credit towards alternative subscription tiers.     

4.   Respective obligations

4.1          IMRG will provide you with access to the Services for the duration of the Subscription in the case of an Order and for the Trial Period in the case of a Trial.  

4.2          IMRG warrants that it has the right to grant the licences expressly granted by it under this agreement  and that you will not infringe any third party Intellectual Property Rights by using the Services.

4.3          IMRG will, during the term of  a Subscription, seek to resolve any errors in the Services  as soon as reasonably possible. IMRG will also seek to resolve ad hoc queries and user issues within 7 days but the Subscriber agrees that no commitments in terms of support availability, response or resolution times are given.

4.4          You acknowledge and agree that there may be times when the Services are unavailable, whether on a scheduled or unscheduled basis, including due to the failure communications networks and facilities or the unavailability of IMRG’s third party hosting providers.

4.5          IMRG will be under no obligation to provide any enhancements or updates to the Database. IMRG may provide enhancements or updates of the Services to the Subscriber at its absolute discretion. Any such enhancements or updates of the Services will be subject to the terms and conditions set out in this agreement.

4.6          IMRG reserves the right (a) to cease to publish indices for particular sectors in the event that, in its opinion, there is an insufficient number of participants to maintain individual participant anonymity and a representative view of the market and (b) to re-state indices where, in its opinion, appropriate to better reflect sector performance.

4.7          The Subscriber will be responsible for ensuring it has compatible browser and functioning internet connections and for the hardware, operating system and related software required to access the Services.

4.8          The Subscriber will be solely responsible for the security, and for the back-up, of its own data and IMRG will have no liability for any loss or corruption of any such or data, however caused.

4.9          Except as expressly provided in this agreement, no other warranties, undertakings, conditions or terms of any kind, whether express or implied, statutory or otherwise will apply, and all warranties, conditions, terms or other undertakings implied at law or by custom as to the condition, quality, performance, satisfactory quality or fitness for purpose of the Services or any part thereof are excluded. In particular:

(a)           IMRG does not take responsibility for the accuracy of the data provided to it by retail participants. Without prejudice to this, IMRG does monitor and assess data provided to it by retail participants to seek to minimise the occurrence and effect of erroneous or inaccurate data;

(b)           you assume sole responsibility for the actions of your Authorised Users and Super User;

(c)           you assume sole responsibility for results obtained from the use of the Database and for conclusions drawn from such use;

(d)           no condition, warranty, representation or other term is given or entered into to the effect that that use of the Services will be uninterrupted or error-free or that they will perform to or operate in accordance with any particular standard. 

5.   Intellectual Property Rights and Confidentiality

5.1          All Intellectual Property Rights in and relating to the Database and Documentation  belong to IMRG and/or its licensors. The Subscriber shall have no rights in or to the  Database  and Documentation (including any Intellectual Property Rights therein) other than the right to use them in accordance with the terms of this Agreement.

5.2          The receiving party agrees not to use Confidential Information of the other party except as necessary for the performance of this agreement.  The receiving party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information.  The receiving party agrees to take all reasonable precautions to prevent any unauthorised disclosure of Confidential Information of the other party including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this clause, and (iii) who are informed of the non-disclosure obligations imposed by this clause and the receiving party will take appropriate steps to implement and enforce such non-disclosure obligations.

5.3          The confidentiality obligations in this Clause do not apply to information which: (a) is or becomes known by the receiving party without breach of any obligation to maintain its confidentiality; (b) is or becomes known to the public through no act or omission of the receiving party; (c) is independently developed by the receiving party without the use of any Confidential Information; or (d) is disclosed in response to a valid order by a court or governmental body, if prior to such disclosure, the receiving party gives written notice to the other party, so as to afford it the opportunity to object. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure. 

5.4          The Subscriber agrees that unless otherwise requested in writing, IMRG may refer to the Subscriber as a user of the Services on its website and its marketing materials in print, online and on social media. The parties anticipate that IMRG may wish to use the Subscriber as a case study or other form of marketing reference for the Database, subject to the agreement of the parties (acting in good faith) as to the content of such materials.   Except as set out above, each party will keep the existence, terms and nature of this agreement, and the discussions between the parties, confidential and will not release or make any public statement, advertisement or other disclosure with regard to this agreement without the prior written consent of the other party. 

6.   Exclusions and limitations

6.1          Neither party's liability (a) for death or personal injury caused by its negligence or the negligence of its employees or agents; (b) for fraud or fraudulent misrepresentation; or (c) for any other matter where liability cannot be excluded or limited under applicable law, is excluded or limited by this agreement, even if any other term of this agreement would otherwise suggest that this might be the case.

6.2          Subject to clause 6.1, IMRG shall not be liable to the Subscriber (whether for breach of contract, negligence, misrepresentation or for any other reason) for any loss or damage whatsoever incurred or sustained by the Subscriber in connection with this agreement and/or its use of the Services whether such loss or damage is direct, indirect or consequential and including, without limitation: (a) loss of profit; (b) loss of business; (c) lost data; (d) rerun time; (e) inaccurate output; (f) work delays, or (g) wasted staff or management time. 

6.3          Subject to clause 6.1 and without prejudice to clause 6.2, IMRG’s maximum aggregate liability under or in relation to this agreement (whether for breach of contract, negligence, misrepresentation or for any other reason) will be limited to the aggregate sums (if any) paid by the Subscriber to IMRG  during the 12 months preceding the date on which the claim is made.

7.   Data protection

7.1          In the course of IMRG providing the Services and of the Subscriber using the same under this agreement, it may be necessary from time to time for either party to have access to personal data. In relation to any transfer and processing of personal data as referred to in this clause.:

(a)           To the extent (if any) that IMRG will be a data processor, IMRG will process the personal data only in accordance with the terms of this agreement and any reasonable instructions given by the Subscriber from time to time;

(b)           Each party warrants that it will comply with the provisions of the Data Protection Act 1988 and the EU General Data Protection Regulation at all times for the duration of this agreement; and

(c)           Each party will take appropriate technical and organisational measures against (i) unauthorised or unlawful processing of the personal data; and (ii) accidental loss or destruction of, or damage to, the personal data.

(d)           Neither party will transfer personal data outside of the EEA without first entering into the requisite EU Model Clauses.

8.   Termination

8.1          A Subscription shall commence on the Start Date and shall, unless otherwise terminated as provided in this clause, continue for a period of 12 months (the “Initial Subscription Term”) and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

(a)           either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b)            otherwise terminated in accordance with the provisions of these Terms;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”).

8.2          A Trial shall commence on the Start Date and shall terminate automatically at the end of the Trial Period. 

8.3          Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without notice if the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach.

8.4          Apart from any other rights which IMRG may have, if the Subscriber breaches this agreement (including non-payment of fees due) IMRG may suspend performance of any of its obligations or exercise of any of the Subscriber's rights under this agreement until the Subscriber remedies the breach to the reasonable satisfaction of IMRG.

8.5          All licences granted by IMRG under this agreement will automatically terminate on expiry or termination of this agreement (for whatever reason) and the Subscriber will immediately cease all use of the Services and will promptly return to IMRG all copies of the Confidential Information of IMRG in its possession or control or (at IMRG’s option) destroy them and certify in writing that this has been done. Expiry or termination of this agreement (for whatever reason) will not affect: (a) any accrued rights or liabilities which either party may have by the time termination takes effect (including payment of the annual Fee); or (b) the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after its expiry or termination. No Fee shall be refundable. Without prejudice to the foregoing, clause 5 (Intellectual Property Rights), clause 6 (Exclusions and Limitations) and clause 7 (Data Protection) will survive termination or expiry of this agreement.

9.   Notices

9.1          All notices, agreements and consents under this agreement will be in writing (including by email).  Notices will be sent to the address of the recipient set out in the Order or to such other address as the relevant party will notify to the other in accordance with this clause.    Emails sent shall be treated as having been delivered 24 hours after sending (provided the sender does not receive a notification that the message is undeliverable). Any letter may be delivered by hand or first class pre-paid letter and will be treated as having been delivered (a) if sent by hand, when delivered; and (b) if by first class post, 48 hours after posting.

10.   Sub-contracting and assignment

10.1       IMRG may sub-contract the performance of any of IMRG’s obligations under this agreement, provided that IMRG will remain liable to the Subscriber for any breach of this agreement if it sub-contracts any of its obligations.  IMRG may assign this agreement or any of IMRG’s rights or obligations under this agreement without the Subscriber’s prior written consent.   The Subscriber may not assign any or all of its rights or obligations under this agreement without IMRG’s prior written consent. 

11.   Other terms

11.1       Neither party will be liable for any delay or failure in performing any of its obligations under this agreement if such delay or failure is caused by circumstances outside its reasonable control.    All variations to this agreement must be agreed on behalf of both parties before they take effect.  If any provision of this agreement is held for any reason to be ineffective or unenforceable, this will not affect the validity or enforceability of: (a) any other provision of this agreement; or (b) this agreement as a whole.  No term of this agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this agreement.

11.2       This agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it.  Each party acknowledges that, in entering into this agreement, it has not relied on any statement or representation not expressly set out in this agreement. 

11.3       This agreement is to be interpreted in accordance with English law and parties submit to the exclusive jurisdiction of the English courts.