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TERMS AND CONDITIONS OF ACCESS
These terms form part of the agreement between The Economist Intelligence Unit, NA, Incorporated ("EIU") and the client (the "Client") described in the Subscription Order Form or accessing EIU products on EIU’s online store and refers to words defined below and, where applicable, in the Subscription Order Form. 1.) Definitions "Agreement" means the Subscription Order Form or online order form as applicable together with all attachments and these Terms and Conditions of Subscription. "Agreement Term" means unless as otherwise specified in the Subscription Order Form (if applicable) (i) from the Commencement Date for a period of one year; or (ii) for trial or free access Authorized Users the duration to which EIU provides access to the Licensed Products, as the case may be. "Authorized Users" means:
In each case as are authorized by EIU to access and use the Licensed Products. "Client" means the company, academic institution, organization, government, individual, agent, representative or any other variation thereof that enters into this Agreement for purposes of accessing the Licensed Products. "Commencement Date" means, for each Licensed Product, the first day on which the access to Licensed Products is provided by EIU to Client under this Agreement. "Electronic Delivery System" means electronic system that facilitates the transmission of and/or receipt of the Licensed Products. "Intellectual Property Rights" means all past, present, and future right of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask works; (ii) trademark and trade name rights, rights to goodwill or to sue for passing off or unfair competition, and similar rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other proprietary rights in Materials of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in subsections (i) through (v) of this sentence. "Intranet" means the Client’s internal computer network "FTP" means a file transfer protocol whereby EIU may post the Licensed Products or Client may receive the Licensed Products. "Licensed Products" mean the copyright information of EIU (which, for purposes of this provision, includes its parent company, The Economist Intelligence Unit Limited) which Authorized Users are permitted to access and use in compliance with the terms of this Agreement. "Materials" means all content, information, algorithms, APIs, apparatus, circuit designs and assemblies, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, web sites, domain names, works of authorship, and other forms of technology. "Permitted Purpose" means: for ‘academic Clients’, educational purposes; and for ‘non-academic Clients’, ordinary business purposes. "Product Duration" means the duration for which Client’s Authorized Users are granted access to the Licensed Products. "Publishers" means EIU and certain of its affiliates, who are the owners of the Licensed Products. References within the Agreement to "ordinary business purposes" mean for the Client's own internal business management and decision-making purposes only. "Site" means, where access is provided through the Client's Intranet or FTP, all software, websites and computer interfaces of EIU used to provide such access, and in all other cases, EIU's website or FTP. "Type of Access" means the way in which Client’s Authorized User is accessing the Licensed Products "Type of Authentication" means the way in which Client’s access is being authenticated as valid by EIU. 2.) Scope of License 2.1 Permitted Uses. Authorized Users are permitted to print or download reasonable portions of the Licensed Products for the Permitted Purpose only. Where the Permitted Purpose is "ordinary business purposes", Authorized Users may, in the scope of their employment with the Client, on an occasional and irregular basis, provide insubstantial portions of the Licensed Products to non authorized employees of the Client or in memoranda, reports and presentations. Where the Permitted Purpose is "educational purposes", Authorized Users may, in the scope of their educational purpose with the Client, on an occasional and irregular basis, provide insubstantial portions of the Licensed Products to other staff and students of the Client or in scholarly works and articles. In all cases these insubstantial portions may only be made available in print or by secure electronic means to a limited number of individuals, and each such portion must include a copyright notice(s) (from EIU and/or the Publishers, as applicable) and an original source attribution, in each case, as such notice and attribution is reasonably acceptable to EIU. 2.2 Prohibited Uses. Without limitation to the generality of clause 2.1, neither Client, nor Authorized Users are permitted, directly or indirectly, to allow any other person to use or share Authorized Users' user names or passwords, nor to allow an unauthorized user to have access to the Site. Any breach of this restriction may result in immediate termination of the Client's (and all Authorized Users') access to the Licensed Products and/or the Site or liability for damages. Except as permitted in clause 2.1 above or by prior written consent of EIU, no portion of the Licensed Products may be reproduced or stored in or transmitted to any other web site, newsgroup, mailing list, or electronic bulletin board, or stored in electronic or print form whatsoever. Any use of the Licensed Products not specifically permitted by this clause 2 is expressly prohibited. Requests for permission for other uses may be sent to Jennifer Mast, Manager of Business Operations and Contracts, EIU, 750 3rd Avenue, 5th Floor, New York, New York 10017 or by email to jennifermast@eiu.com. Any such requests shall be subject to EIU's sole discretion and, if granted, may be subject to an additional fee. 2.3 Intranet or FTP Access: Where the Client is accessing the Licensed Products through the Client’s Intranet or FTP (having been authorized as such on the Subscription Order Form), it may maintain: 2.3.1 a single copy of the Licensed Products on a server under its control for the purposes of providing access to the Licensed Products to Authorized Users by means of its Intranet; 2.3.2 a single copy of the Licensed Products for backup purposes only (on condition that the two copies referred to in clauses 2.3.1 and 2.3.2 are never accessed simultaneously); and 2.3.3 within 5 business days after termination of this Agreement, for whatever reason, the Client will delete the Licensed Products from any system under its control. 3.) Intellectual Property Protection All Intellectual Property Rights in and to the contents and design of the Site, and all Materials hosted on the Site and/or distributed in conjunction with the Site, including the Licensed Products and documentation, are reserved exclusively to the Publishers (which for these purposes may include their suppliers). The Client is not permitted to use or reproduce or allow anyone to use or reproduce any trade marks or other trade names appearing on the Site or in the Licensed Products for any reason. The software which operates the Site is proprietary software and the Client is not permitted to use it except as expressly allowed under the terms of this Agreement. Such software may not be copied, reverse engineered, modified or otherwise dealt with by the Client. 4.) License Fee and Payment Where a License Fee is payable, such License Fee is subject to annual adjustment upon prior notice given by EIU to the Client. This adjustment shall be at EIU's discretion and may, for example, take into account the Client’s past usage trends. EIU (or its nominee) shall render an invoice annually in advance to the Client for the amounts due, plus federal, state, local, and/or other applicable taxes. The Client shall remit all amounts due within thirty (30) days after receipt of invoice. Payments made after the due date shall be subject to liquidated damages at a rate of equal to the lesser of: (i) prime/base rate + 4%; or the maximum allowed by law. Without prejudice EIU’s other remedies. it shall have the right to suspend the provision of Licensed Products with immediate effect in the case of any overdue payment. 5.) Intranet Content, Security, Monitoring and Auditing 5.1 Where the Client is an Intranet or FTP access subscriber, it: 5.1.1 may not frame or link to the Site or Licensed Products in any way that obscures any of EIU's or the other Publishers' copyright, trademark, and/or other proprietary rights notices, or is misleading as to the source of the Site or Licensed Products, or falsely implies a relationship between EIU (or any other Publisher) and the Client or any other third party; and 5.1.2 is solely responsible for creating security measures adequate to protect its Intranet from unauthorized access and harm. 5.2 Upon request by EIU the Client shall deliver to EIU a statement regarding the Client's usage of the Site or Licensed Products containing: (i) the number of the Client's Authorized Users accessing the Site or Licensed Products for the proceeding quarter together with the frequency of access by such persons and (ii) the names, titles, and locations, of all the Client's Authorized Users accessing the Site or Licensed Products for such quarter. Such statement shall be delivered by Client no later than fifteen (15) working days after such request is made. For the purpose of confirming the accuracy of the Client’s statement(s) (if applicable) and the Client's compliance with the terms of this Agreement, EIU reserves the rights: (i) to monitor and record activity on the Site, including access to the Licensed Products, and (ii) no more than once in any twelve month period, to conduct an on-site audit of the Client's business premises upon reasonable advance notice. 6.) Term and Termination 6.1 This Agreement shall automatically renew on an annual basis, unless either party gives the other party hereto not less than ninety (90) days' written notice of its intention to terminate prior to the renewal date of any given one year term, in which case the Agreement shall expire on such renewal date. For the avoidance of doubt some Licensed Products may be made available for shorter periods. For "free access users" and "trial users" EIU shall be free to withdraw or change access to Licensed Products at any time at its sole discretion. 6.2 Either party may terminate this Agreement in the event the other party breaches a material provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach, in which case the such party will have the right to terminate this Agreement immediately by giving written notice to the party in breach 6.3 The Client may, no later than thirty (30) days of receipt of an annual License Fee increase, give written notice to terminate this Agreement, in which case the Agreement shall terminate on the earlier of: (i) ninety (90) days from the date of such notice to terminate; or (ii) the end of then current contract year. 6.4 The rights of termination are in addition to all other rights or remedies of the parties provided in this Agreement or by law. In the event this Agreement is terminated, the Client’s (and all Authorized Users’) right to access and use the Licensed Products will cease immediately. 7.) No Warranty and Disclaimer of Liability 7.1 EIU MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE LICENSED PRODUCTS AND THE SITE. 7.2 EIU EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT POSSIBLE UNDER LAW, ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. 7.3 EIU DOES NOT GUARANTEE THE ACCURACY, CONTENT, OR TIMELINESS OF THE LICENSED PRODUCTS 7.4 IN NO EVENT WILL EIU, ITS AGENTS, LICENSORS OR AFFILIATES BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF (OR FAILURE TO USE) OR RELIANCE ON THE LICENSED PRODUCTS OR THE SITE, EVEN IF EIU HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE. 7.5 IF EIU IS HELD LIABLE TO THE CLIENT FOR ANY REASON, IN NO EVENT SHALL ANY LIABILITY OF EIU, ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM OR CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SITE OR THE LICENSED PRODUCTS EXCEED THE AMOUNT THE CLIENT PAID TO EIU UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE DATE SUCH CLAIM OR CLAIMS FIRST AROSE. 8.) Security 8.1 The Client will be solely responsible for the confidentiality of, and solely liable for the use of and access to the Licensed Products and the Site using Authorized Users’ user names, sign-on passwords, user I.D.'s and/or IP addresses as applicable. The Client agrees to immediately notify EIU if it becomes aware of any loss or theft of any sign-on password or user I.D. or any unauthorized use of a sign-on password, user I.D., user name or IP addresses, or of the Licensed Products or the Site. 8.2 Where the Client is an Intranet or FTP access subscriber, it is solely responsible, at its own cost, for obtaining any third party rights, products, or services needed to configure and operate the Electronic Delivery Systems and the Client’s Intranet for use in connection with the Licensed Products. 9.) Force Majeure EIU, its affiliates, and its information providers shall not be liable or deemed to be in default for any delay or failure in performance or interruption of the delivery of Licensed Products resulting directly or indirectly from any cause or circumstance beyond its or their reasonable control, including but not limited to failure of any Site, FTP, Electronic Delivery System (if applicable) or any electronic or mechanical equipment or communication lines, telephone or other interconnect problems, supplier problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions. 10.) Taxes The Client shall be responsible for the proper payment of all taxes which may be levied or assessed based on the Client's use of the Licensed Products, the Site, or on any payments by the Client to EIU hereunder, other than EIU’s income taxes. 11.) Amendment This Agreement may only be amended or modified by express written consent of both parties hereto. 12.) Miscellaneous 12.1 Assignment of Agreement. This Agreement is personal to the parties and the rights and obligations of the parties may not be assigned or otherwise transferred, provided, however, EIU may assign this Agreement to its successors, affiliates or to any entity that acquires all or substantially all of the assets of EIU. 12.2 Non-Waiver. No delay or omission on the part of either party in requiring performance by the other party of its obligations will operate as a waiver of any right. 12.3 Notices. Notices shall be given in writing by letter or, in the case of notices to the Client, by email, and shall be sent to the intended recipient's last known place of business (i) for EIU, in New York (for the attention of Jennifer Mast, Manager of Business Operations and Contracts, EIU) and (ii) for the Client, at the Client address or email address for the attention of the Client contact set out in the Subscription Order Form. Such letters shall be deemed received on the date of dispatch if sent by fax or email (or on the following business day, if sent after the recipient’s normal business hours) or on the expiry of 2 business days from the date of posting if sent by overnight post. 12.4 No Joint Venture. No joint venture, partnership, employment, or agency relationship exists between the Client and EIU as a result of this Agreement or the Client’s use of the Licensed Products or the Site. 12.5 Severability/Survival/Statute of Limitations. If any provision of this Agreement shall be invalid or unenforceable, such shall not render the entire Agreement unenforceable or invalid but rather the Agreement shall be read and construed as if the invalid or unenforceable provision(s) are not contained therein, and the rights and obligations of the parties shall be construed and enforced accordingly. The Client must file any cause of action it may have with respect to this Agreement in a court of competent jurisdiction in New York, New York, U.S.A., within one year after the cause of action has arisen, or such cause shall be barred, invalid, and void. 12.6 Entire Agreement. This Agreement constitutes the entire agreement between EIU and the Client and any terms implied by law which may be excluded by contract are excluded, save that nothing in this clause 12.6 excludes liability for fraudulent misrepresentation. 12.7 Authority. Each party represents and warrants to the other that it has full power and authority to enter into and perform this Agreement (and, in the case of the Client, to bind its Authorized Users), and that the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. 12.8 Confidentiality. The terms of this Agreement (including the License Fee) shall be treated as confidential by the Client and shall not be disclosed to any third party without the prior written agreement of EIU unless disclosure is required by law or compelled by a court of competent jurisdiction. 12.9 Changes to the Licensed Products. EIU Reserves the right to: (i) change the content, presentation, means of delivery and/or access to and/or availability of all or parts of the Licensed Products; and (ii) cease publication of the Licensed Products, at its sole discretion. EIU will strive, where reasonable, to notify Client of more fundamental changes to, or the cessation of, the Licensed Products. 13.) Governing Law This Agreement shall be governed by the laws of the United States of America and New York State, as if the Agreement were a contract wholly entered into and wholly performed within New York State, without reference to the choice of law provisions thereof. Both parties irrevocably agree to submit to the exclusive personal jurisdiction and venue of the federal and state courts presiding in New York, New York, U.S.A.; provided however that either party may pursue injunctive relief in any court having jurisdiction for such actions. |
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