TERMS AND CONDITIONS
Last Updated: January 27, 2023
These Terms and Conditions (“T&C”) together with the Order Form constitute the entire Agreement between the parties governing Subscriber’s use of and access to the publications published by Publisher and/or its affiliates. This subscription includes but is not limited to eMarketer PRO, Insider Intelligence, and any Insider family of publications, consisting of websites and email services, which offer research, reports, news, notes, articles, interviews, webinars, and a library of charts and data, as set forth in the Order Form (“Subscription”). In the event of a conflict between these Terms and Conditions and any Order Form, including any Subscriber purchase order or other type of ordering instrument, these Terms and Conditions shall govern unless the Order Form expressly indicates Order Form terms should supersede.
- Grant of Rights
(a) Access. Insider Intelligence grants Subscriber a non-exclusive and non-transferable right for the Authorized Users specified in the Order Form to access and use the Subscription for internal purposes.
(b) Affiliates/Consultants/Subcontractors. Subscription rights do not include access or use of the Subscription by Subscriber’s subsidiaries or affiliated companies, nor performance of services for the benefit of third parties. If authorized in the Order Form, external consultants and subcontractors may access the Subscription provided they do so exclusively for the Subscriber using a Subscriber email address, and in accordance with these Terms and Conditions.
Subscriber shall be responsible for obtaining and maintaining all hardware, software, communications equipment and network infrastructures required to access and use the Subscription.
- Account and Password
Authorized Users will receive a password to log in to the Insider Intelligence site to access the Subscription. Subscriber shall have sole responsibility for all activities of Authorized Users relating to such Subscriber’s account and shall immediately inform Insider Intelligence of any unauthorized use of the Subscriber’s account. Usernames and passwords are limited to Authorized Users only and may not be shared inside or outside Subscriber’s company. There are two exceptions where an Authorized User’s access rights may be reassigned to another within your company: (1) if the Authorized User’s job responsibilities substantially change so that they no longer require access to the Subscription; or (2) if Authorized User permanently leaves Subscriber’s company.
- Monitoring of Usage
Insider Intelligence monitors activity on the Subscription website, including use by Authorized Users. If monitoring indicates that the Subscription is being used in violation rules set forth herein, Insider Intelligence may require Subscriber to certify that the Subscription is being used within the contractual entitlement. In the event of non-compliance, Insider Intelligence will issue notice of such non-compliance to Subscriber. Following receipt of such notice, Subscriber will have 30 days to correct the non-compliance. In the event Subscriber fails to correct the non-compliance, Insider Intelligence reserves the right at its sole discretion to terminate, restrict access, or invoice for additional usage.
- Third Party Sites and Third Party Content
Subscription may include links to third party websites. Subscriber is responsible for evaluating whether to access or use a third party site and agrees to be bound by any applicable terms found therein. Insider Intelligence does not screen, audit or endorse any third party site. Insider Intelligence shall not assume any responsibility for the content, advertising, products or other materials on third party sites. Subscriber agrees it will not copy, reproduce, distribute, transmit, broadcast, modify, display, sell, license or otherwise exploit third party content except in strict compliance with the rights, if any, granted to Subscriber by such third party. Insider Intelligence will terminate the account of any Subscriber, and block access of any user, who infringes any Insider Intelligence or third party intellectual property right.
- Invoicing and Payment
(a) Prior to the start of each contract term, Subscriber will be invoiced for the full amount due. Subscriber shall pay all invoices within thirty (30) days after the invoice date. Except as provided in Section 8.4 below, payment obligations are non-cancellable and all fees paid by Subscriber are nonrefundable.
(b) Unless otherwise stated, Insider Intelligence’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with its purchase of the Subscription. If Insider Intelligence has the legal obligation to pay or collect Taxes for which Subscriber is responsible, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Insider Intelligence with a valid tax exemption certificate from the appropriate taxing authority.
(c) Third-party payment, processing, or service fees incurred by Insider Intelligence, if any, shall be added to the total fee in an amount equal to such fees, and in the case of payments made by credit card, a three percent (3%) surcharge shall be added.
- Duration and Cancellation
(a) The Agreement shall commence on the date specified in the Order Form and shall continue for the initial term as stated therein, unless earlier terminated in accordance with the Agreement. Thereafter, the Agreement will be extended automatically for periods of time equivalent to the initial term or the then-current renewal term at Insider Intelligence’s then-current prices and terms, unless the Agreement is cancelled in writing at least sixty (60) days prior to the expiration of the initial term or the then-current renewal term. Any initial pricing and/or payment terms shall only be applicable to the initial term.
(b) Upon expiration or termination of the Agreement, Subscriber’s access rights and all other rights granted under this Agreement shall expire. Termination of the Agreement shall not act as a waiver of any breach of the Agreement and shall not release a party from any liability for breach of such party’s obligations under the Agreement that occurred prior to the effective date of termination.
(c) In addition to other rights and remedies available to Insider Intelligence, Insider Intelligence is entitled to cancel the Agreement without notice if Subscriber violates essential or material obligations under the Agreement. Insider Intelligence also reserves the right to cancel the Agreement without notice if a substantial decline in the asset situation of Subscriber occurs, if insolvency proceedings are opened for the assets of Subscriber, or if such proceedings are rejected due to lack of assets.
(d) In the event Insider Intelligence materially breaches this Agreement, and such breach remains uncured for a period of thirty (30) days after notice from Subscriber, Subscriber shall be entitled to a pro-rata refund for the portion of the then-current term that has been pre-paid and is subject to the material breach and remains uncured.
(e) The following Sections shall survive the expiration, termination or cancellation of the Agreement in full force and effect: General, Third Party Sites and Third Party Content, Intellectual Property, Data Use and Restrictions, Liability and Warranty, and Additional Provisions.
- Intellectual Property
The content on the site, except for content created by users and third parties if any, including without limitation, software, code, forms, text and other materials, trademarks, service marks or logos contained therein (“Marks”), are owned by or licensed to Insider Intelligence. Subscriber’s use of the site and the Subscription is limited to the rights granted to Subscriber under this Agreement and Insider Intelligence reserves all rights not expressly granted herein.
- Data Use and Restrictions
The rights granted to Subscriber under this Agreement do not include any resale of any portion of the site or its contents; any collection and use of any derivative of the site or its contents; any downloading or copying of account information for the benefit of another company or party; or any use of data mining, robots, or similar data gathering and extraction tools. The site or any portion of the site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any purpose inconsistent with the limited rights granted to Subscriber under this Agreement. Subscriber may not frame or utilize framing techniques to enclose any trademark, logo, or other Insider Intelligence generated content of the site, or use meta tags or any other “hidden text” or data elements utilizing Insider Intelligence’s name or trademarks without express written consent by Insider Intelligence. Insider Intelligence shall in no way be responsible or liable for unauthorized use or disclosure of personal information by the Subscriber.
- Indemnification and Disclaimer
(a) INDEMNIFICATION. Subject to Subscriber’s performance of its obligations under this Agreement and limited to the amounts paid by Subscriber under this Agreement, Insider Intelligence shall, at its sole option, defend or settle any third-party lawsuit against Subscriber alleging that the Publication infringes any third-party intellectual property right in the USA. Insider Intelligence shall indemnify and hold harmless Subscriber from damages and costs finally awarded by a court of competent jurisdiction in such lawsuit. Insider Intelligence’s indemnification obligation is predicated upon Subscriber providing prompt written notice of such lawsuit and reasonably cooperating in the defense of such lawsuit. The foregoing shall be the exclusive remedy to Subscriber with respect to any alleged infringement by Insider Intelligence or any third-party intellectual property rights. Insider Intelligence shall have no indemnification obligation to the extent the claim or suit arises from (a) modification of the Publication by anyone other than Insider Intelligence; (b) the combination of the Publication with products or services other than those supplied by Insider Intelligence; (c) Subscriber’s continued use of the Publication after being informed of or provided with modifications that would have avoided the alleged infringement; or (4) Subscriber’s use of the site that is not strictly in accordance with the rights granted in this Agreement. For greater clarity, this indemnity does not apply to third-party claims or suits against Subscriber arising from or resulting from third-party content, third-party sites, or any proprietary data or information submitted to or posted by Subscriber to the Publication. This Section contains Subscriber’s sole and exclusive remedy, and Insider Intelligence’s entire liability, with respect to the claims subject to indemnification.
(b) DISCLAIMER. SUBSCRIBER ORGANIZATION AGREES AND ACKNOWLEDGES THAT THE PUBLICATION INCLUDING SUBSCRIBER’S USE OF AND ACCESS TO THE PUBLICATION IS PROVIDED ON AN “AS IS”, BASIS AND ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. INSIDER INTELLIGENCE DOES NOT GUARANTEE UNINTERRUPTED, SECURE OR ERROR-FREE OPERATION OF THE SITE. INSIDER INTELLIGENCE MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, TIMELINESS, QUALITY, COMPLETENESS, SUITABILITY OR RELIABILITY OF ANY INFORMATION OR DATA ACCESSED ON OR THROUGH THE SITE. ADDITIONALLY, INSIDER INTELLIGENCE DOES NOT GIVE INVESTMENT ADVICE OR ADVOCATE FOR THE PURCHASE OR SALE OF ANY INVESTMENT OR SECURITY AND INSIDER INTELLIGENCE AND ITS RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVERTISERS, CONTENT PROVIDERS AND LICENSORS WILL NOT BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON AS A RESULT OF ACCESS TO THE PUBLICATIONS FOR CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE AND LOST SAVINGS IN ANY THEORY OF LIABILITY. IN NO EVENT WILL EITHER PARTY’S CUMULATIVE LIABILITY HEREUNDER, INCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS, EXCEED THE AMOUNT OF THE TOTAL FEES PAID TO INSIDER INTELLIGENCE BY SUBSCRIBER DURING THE THREE (3) MONTHS PRECEDING THE CLAIM GIVING RISE TO LIABILITY. IF ANY PORTION OF THIS SECTION IS RULED TO BE UNENFORCEABLE BY AN APPLICABLE AUTHORITY, THEN INSIDER INTELLIGENCE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- Service Level Agreements (SLAs); Operating Hours and System Maintenance
(a) Service Level Agreements (SLAs). Insider Intelligence shall use commercially reasonable efforts to ensure that the Subscriber receives uninterrupted and continuing service throughout the term of the Agreement.
(b) Notwithstanding Section 12.1, Insider Intelligence may need to carry out routine maintenance or urgent maintenance or the Subscription may become unavailable for reasons not within Insider Intelligence’s control. In such case, Insider Intelligence shall use commercially reasonable efforts to inform the Subscriber of any downtime and restore the Subscription as soon as reasonably practicable. In the event Insider Intelligence fails to use commercially reasonable efforts and the Subscription remain unavailable to Subscriber for more than three (3) business days of Subscriber first notifying Insider Intelligence of such unavailability, Insider Intelligence will issue to Subscriber a credit in an amount equal to the pro-rated charges of one day’s usage fees for every day that the Subscription are unavailable for the Subscriber.
- Additional Provisions
(a) The Agreement will be governed by and interpreted in accordance with the laws of New York, USA. To the extent allowed by law, Subscriber irrevocably agrees all disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall be New York City, New York, USA. The language of the arbitral proceedings shall be English (or as determined between the parties). Judgment upon any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator is authorized to include in the award an allocation to any party of such costs and expenses, including reasonable attorneys’ fees, as the arbitrator shall deem reasonable.
(b) A party’s waiver of a breach or default by the other party of any provision of the Agreement shall not be construed as a waiver of any succeeding breach or default by the other party, nor shall a party’s failure to exercise or enforce any right or provision of the Agreement be deemed to be a waiver of such right or provision.
(c) Invalidity of any specific provision of this Agreement shall not affect the validity of the remaining provisions. Any invalid provision shall be replaced by a valid provision which comes as close as possible to the intent of the invalid provision.
(d) Neither this Agreement nor any obligation or right hereunder may be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that both parties may assign this Agreement in whole without the other party’s prior consent to a successor in interest in connection with a merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates on condition that such successor in interest agrees in writing to comply with all terms and conditions of this Agreement.
(e) Both parties acknowledge and agree that this Agreement constitutes the entire agreement between the parties regarding the subject matter herein. Any other terms and conditions, including, without limitation, terms and conditions on or attached to a purchase order, vendor registration documents, tenders or request for proposals. are void and shall be of no force and effect regardless of whether they are delivered to Insider Intelligence prior to, concurrently, or after the execution of this Agreement. Performance by Insider Intelligence with respect to the Subscription shall not constitute acceptance of any additional or alternative terms and conditions nor shall a failure to act on said additional terms and conditions constitute acceptance of the provisions contained therein.
(f) This Agreement may only be amended in writing signed by authorized representative of both parties.
(g) Subscriber and Insider Intelligence agree that notices may be sent by electronic mail, to the electronic mail address indicated on the Order Form, or then-current electronic mail address provided by a party to the other party and designated as the proper electronic mail address and agree that notices are deemed received forty-eight (48) hours after transmission. Each party agrees that any electronic communication will satisfy any legal communication requirements, including all such communication required by applicable laws to be in writing.