1. Master T&Cs; Service Agreements. Reference is made to the accompanying Order Form between the client and the Circana Group company, each as identified therein (respectively, “Client” and “Circana”; each a “Party” and, together, the “Parties”). These Master Terms and Conditions will be deemed incorporated by reference in the Order Form and may be incorporated by reference in any future order forms with Client (each, an “Order Form”), and each Order Form, together with these Master Terms and Conditions, will constitute a separate service agreement (a “Service Agreement”). To the extent there is any conflict or inconsistency between an Order Form and these Master Terms and Conditions, the Order Form will prevail.
2. Services. Circana will provide Client with the specific services set forth in the relevant Order Form (“Licensed Services”). The Licensed Services include data, information, reports and analyses derived from information collected from consumers, retailers, manufacturers or others (“Circana Data” or “Circana Data Assets”) as well as, to the extent stated in an Order Form, related online access and software tools (“Tools”). The Licensed Services may be renamed, updated or modified from time to time as Circana may determine in the ordinary course of its business.
3. Use of Circana Data Assets; Tools. Circana grants to Client a perpetual, non-exclusive, nontransferable and non-sublicensable license to use Circana Data for internal business purposes, and for external business purposes as further permitted in this section. Client may reproduce only limited excerpts of Circana Data (“Excerpted Data”) in Client’s reports and analyses and disclose same to third parties only to the extent reasonably necessary to support Client’s efforts to market its products and services; provided, however, that Excerpted Data may not, in the reasonable opinion of Circana, be of such quantity or quality so as to be separately marketable by Circana. All Excerpted Data must comply with the Data Disclosure Requirements attached hereto as Exhibit A. In no event may any Circana Data be publicly disseminated, for example in press releases, in or to the media, on the Internet, in advertisements or on product packaging, without the prior written consent of Circana. In no event may Client resell any Circana Data or any derivative work thereof, or disclose or use any Circana Data in any manner that is competitive with Circana’s services (including to or with a competitor of Circana). Any use or disclosure of Circana Data other than as expressly specified in this section is prohibited. Client will not use any Licensed Services in violation of any law or regulatory requirement (including securities laws and regulations) and will not remove or otherwise interfere with any proprietary, confidentiality or copyright notice of Circana. A similar license to the internal license set forth in the first sentence above, but limited to the term of the relevant Service Agreement, is granted with respect to any Tools provided to Client thereunder. Client agrees that it will (a) not copy, modify, disassemble, decompile or otherwise reverse engineer Tools, (b) ensure that its personnel do not share Circana-provided passwords with any unauthorized person (including any other unauthorized Client personnel), and (c) promptly notify Circana if any Client personnel are no longer authorized to use Licensed Services. The licenses granted in this Section 3 are subject to any other restrictions as may be stated in an Order Form.
4. Fees and Payments. Client will pay for the Licensed Services in accordance with the fees and invoicing schedule stated in the relevant Order Form. Stated fees will apply for the duration of the Initial Purchase Period set forth in the Order Form (“IPP”) and Circana will provide ninety (90) days’ advance written notice of any fee changes effective thereafter. Fees are due and payable by Client within thirty (30) days after receipt of invoice. Within 5 business days after written notice of non-payment (“Cure Period”), interest will accrue on late payments (to the extent not subject to reasonable dispute) from the due date until paid, at the lesser of 1.50% per month or the maximum allowed by law. Such non-payment of an invoice by its due date will, at Circana’s discretion and following the Cure Period, result in suspension of Licensed Services. Client will pay Circana’s reasonable legal fees and collection costs and expenses in connection with any such unpaid amounts. Fees for Licensed Services are exclusive of and Client agrees to pay, or reimburse Circana for, any applicable sales, use and similar taxes payable or required at any time to be collected by Circana (for clarity, not to include any taxes related to Circana’s income).
5. Term of Service; Termination. A Service Agreement remains in effect for the term specified therein. Either Party may terminate a Service Agreement upon written notice to the other Party if the other Party commits a material breach and fails to cure such breach within thirty (30) days following receipt of notice thereof. Circana may suspend Licensed Services if Client violates Section 3 of these Terms and Conditions. Circana may terminate a particular Licensed Service upon written notice if such Licensed Service is being generally discontinued for all clients in the ordinary course of its business, in which case Circana will refund any allocable prepaid fees on a pro rata basis. In the event either Party terminates a Service Agreement for convenience as may be permitted in the Order Form, the final delivery of Licensed Services will correspond to the end of the data collection period (e.g., the data month or data quarter, as applicable) during which such termination takes effect. Upon termination of a Service Agreement, Sections 3 through 11 will survive such termination.
6. Ownership Retained. All Licensed Services are copyrighted and may be reproduced only as may expressly be stated in a Service Agreement. Licensed Services are licensed, not sold. As between Circana and Client, Circana exclusively owns and retains all rights, title and/or interest in and to Licensed Services, including all associated intellectual property and other proprietary rights, and all rights in Licensed Services not expressly granted to Client in a Service Agreement are reserved by Circana and its licensors. Any Client-owned intellectual or other property provided to Circana in connection with the provision by Circana of the Licensed Services will remain owned solely by Client.
7. Confidential Information. As used in this Section, “Confidential Information” means any confidential and proprietary information of or relating to the Party disclosing the information (“Disclosing Party”) or such Disclosing Party’s business, that is marked confidential or reasonably appears to be confidential or proprietary, and that is disclosed to the Party receiving the information (“Recipient”) in writing, orally, electronically, or other form, and also includes the terms of all Service Agreements between Client and Circana. Client acknowledges that Circana expends substantial time, effort and money to develop, enhance and maintain the Licensed Services and the underlying assets of Circana (including its data dictionaries and hierarchies), and that all such services and assets of Circana, whether acquired directly or indirectly by Client, constitute the Confidential Information of Circana and its valuable intellectual property. Recipient will maintain Confidential Information of Disclosing Party as strictly confidential, and will not disclose such Confidential Information to any third party, or use such Confidential Information for any purpose not expressly permitted under a Service Agreement (including the use of Circana Data Assets in violation of Section 3 above). Confidential Information will not include any information that (i) was in the public domain prior to the time of disclosure by Disclosing Party; (ii) comes into the public domain after disclosure by Disclosing Party to Recipient, through no action of Recipient (and in the case of (i) and (ii) above, Recipient does not know or have reason to know that such information is in the public domain through an unauthorized disclosure); (iii) is already known to Recipient at the time of disclosure by Disclosing Party; (iv) is obtained by Recipient from a third party without a breach known to Recipient of such third party’s obligations of confidentiality; (v) is independently developed by Recipient without use of Disclosing Party’s Confidential Information; or (vi) is required by law or legal process to be disclosed by Recipient, provided that Recipient gives Disclosing Party prompt written notice of such requirement prior to such disclosure and, to the extent reasonably practicable, provides such reasonable cooperation and assistance as Disclosing Party may reasonably request (at Disclosing Party’s expense) to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information. Disclosing Party will have the right to seek equitable relief, without the obligation to post bond, in the event of any breach by Recipient of this section. Notwithstanding the foregoing, Circana may identify Client only in a listing of Circana clients.
8. Representations; Limitation of Liability. (a) Circana represents and warrants that (i) Circana Data will be collected in accordance with generally accepted standards in the research industry, and (ii) Circana will provide the Licensed Services in material compliance with applicable laws. Client acknowledges and agrees that the Licensed Services are wholly advisory in nature and all actions and judgments taken by Client in connection with the Licensed Services are Client’s sole responsibility. EXCEPT AS STATED IN THE FIRST SENTENCE OF THIS SECTION, THE LICENSED SERVICES ARE PROVIDED “AS IS” and subject to CIRCANA’s ability to collect the relevant source information, AND NEITHER PARTY MAKES, AND EACH PARTY HEREBY DISCLAIMS AS TO THE OTHER PARTY AND THEIR RESPECTIVE AFFILIATES, PARTNERS AND SUPPLIERS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ADEQUACY OF INFORMATION OR RESULTS TO BE DERIVED FROM THE USE OF LICENSED SERVICES. CIRCANA DOES NOT GUARANTEE THAT CIRCANA DATA OR LICENSED SERVICES WILL BE ERROR-FREE. (b) In no event will (i) either Party or any of its respective affiliates, partners or suppliers be liable, whether in contract, tort, strict liability or under any other theory of liability, for any indirect, special, punitive, exemplary, incidental or consequential damages including lost business or lost profits, whether foreseeable or not, even if the other Party has been advised of the possibility of such damages, or (ii) either Party’s liability or the liability of its respective affiliates, partners or suppliers exceed in the aggregate an amount equal to six months of the fees for the specific Licensed Service at issue; provided, however, that nothing in this Section 8 will limit Client’s payment obligations under a Service Agreement. The foregoing sentence will not apply with respect to (x) any breach by Circana or Client of Section 7 and (y) any indemnification claim by an Indemnified Party pursuant to Section 9 or (z) personal injury, death, willful misconduct, gross negligence, or damage to tangible personal property. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WERE MATERIAL FACTORS IN THE DETERMINATION OF FEES.
9. Indemnity. Each Party (an “Indemnifying Party”) will indemnify the other Party and such other Party’s officers, directors, employees, agents, affiliates, partners and suppliers (each an “Indemnified Party”) from and against all third party claims, liabilities, damages, debts, losses, settlements, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of (a) where Client is the Indemnifying Party, any material breach by Client of Section 3, and (b) where Circana is the Indemnifying Party, any material breach by Circana of Section 8(a)(ii), and any claim that the Licensed Services, in the form provided by Circana, infringe the intellectual property rights of any third party. The foregoing indemnities are subject to the Indemnifying Party (i) receiving prompt notice from the Indemnified Party of any and all claims and proceedings for which indemnification is sought, (ii) at the Indemnifying Party’s option, having sole control of the defense and/or settlement thereof (subject to the consent of the Indemnified Party, not to be unreasonably withheld or delayed, as to any settlement terms requiring any action or inaction on its part); provided that the Indemnified Party may participate in any such defense or settlement at its own cost and expense, and (iii) receiving from the Indemnified Party reasonable cooperation in such defense.
10. Acquisition of Circana Client. Notwithstanding any other provision of this Agreement, if Client acquires or merges with another Circana client (the “Acquired Client”) receiving one or more similar Licensed Services as those provided under Client’s Service Agreement, then upon the expiration of, or other termination permitted under, the Acquired Client’s agreement with Circana for such services, fees at the rate of 75% of the aggregate annual fees payable for the relevant similar services, in effect during the last year of the Acquired Client’s agreement, will be added to the fees payable by Client under such Service Agreement, and the Acquired Client will thereupon be entitled to benefit from the license grant to Client under such Service Agreement for such similar services.
11. Miscellaneous. (a) Neither Party may assign or transfer, by operation of law or otherwise, any of its rights or obligations under a Service Agreement without the prior written consent of the other Party; provided, that such consent will not be required for any assignment by a Party: (i) to an affiliate of such Party in connection with an internal reorganization or (ii) in connection with a merger, acquisition or similar business combination, or a sale of all or substantially all of such Party’s business or assets that relate to such Service Agreement, in each case, which does not involve a competitor (or affiliate thereof) of the non-assigning Party. Any attempted assignment other than as permitted above will be void. (b) Each Service Agreement is for the benefit only of the Parties; except as may be expressly stated, none of the provisions thereof are for the benefit of, or enforceable by, any third party, including any parent, subsidiary or other corporate affiliate of a Party, whether then existing or acquired or established in the future. (c) The failure of either Party to exercise partially or fully any right or the waiver by either Party of any breach will not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of a Service Agreement. (d) To the maximum extent permitted by applicable law, if any provision of a Service Agreement is held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be deemed modified to the extent necessary to make it legal and the legality, validity and enforceability of the remaining provisions of such agreement will not be affected and those provisions will remain in full force and effect. (e) Neither Party will be deemed in default of any provision of a Service Agreement (excluding payment obligations) to the extent that its performance is delayed or prevented by any event reasonably beyond its control, provided that such Party provides prompt notice thereof and uses reasonable efforts to mitigate the delay or failure to perform. (f) All notices and consents under a Service Agreement will be effective when provided in writing by a Party to the other Party at the address appearing in the Order Form, or such other address specified in writing to the notifying Party after the date thereof, and will be deemed delivered at the time of receipt by personal delivery, a major commercial courier service, electronic mail (excluding notices of material breach or any breach of Section 3 or 7), facsimile, or certified or registered mail (in each case, return receipt requested). (g) The Parties are independent contractors for purposes of any Service Agreement and are not partners or joint venturers, and neither Party has any right or authority to bind the other in any way. (h) Each Service Agreement and any attachments, exhibits and schedules thereto, (1) contains the sole and entire agreement between the Parties with respect to its subject matter, and any modifications must be in writing, signed by both Parties and (2) supersedes all prior discussions and agreements between the Parties with respect to the subject matter thereof, with any additional or different terms on current or future Client purchase orders or other purchasing documents expressly objected to and rejected. (i) Any ambiguity in a Service Agreement will not necessarily be construed against the drafter and “including” means “including without limitation” or “including but not limited to”. (j) Each Service Agreement and any amendments to it will be governed by and construed in accordance with the laws of the Province of Ontario, Canada and the laws of Canada, without regard to the choice of law rules thereof or to the United Nations Convention on Contracts for the International Sale of Goods. (k) Order Forms may be executed by electronic signature and in counterparts. (l) In the event of a dispute regarding a Service Agreement, each Party will promptly identify an executive with authority to resolve the dispute, and who is at a higher level of management than the persons with direct responsibility for the administration of the Service Agreement (of at least officer or equivalent level, in any event), and the Parties agree to discuss the issues and work together in a good faith attempt to resolve the dispute.
DATA DISCLOSURE REQUIREMENTS
REQUIREMENTS FOR PERMITTED EXTERNAL USE OF CIRCANA DATA
1. With respect to any Circana Data that are authorized to be used externally, such data must be accompanied by appropriate attribution of Circana as the source, and must include all information reasonably necessary to ensure that the Circana Data are presented clearly, accurately and fairly. Client must comply with the following in this regard, or other reasonable and similar requirements communicated by Circana from time to time:
- The data collection period (month or week and year) must be cited, if available from Circana Data being reprinted, excerpted or summarized.
- Citations of market share or rank information from Circana must include appropriate context, such as the relevant category to which such market share or rank applies.
- If Circana Data are referenced alongside other non-Circana data sources, Circana Data must be clearly differentiated.
- Any explanatory notices or disclaimers by Circana must be provided.
- Client will not disclose Circana Data pertaining to any other company, brand or license, such as that of a competitor.
The following is an example of an appropriate source attribution to Circana:
Text: “According to Circana, sales of televisions in Canada totaled [$XX] for the month of [month/year].”
Footnote: “Source: Circana / Retail Tracking Service”
2. With respect to disclosure to, or use of Circana Data with, a retailer, reseller or distributor (“Data Providers”), such disclosure or use is limited only to Data Providers that are contributing to such Circana Data, as identified by Circana. Client must have a written agreement requiring any recipient of Excerpted Data to hold in confidence and use such data only in its dealings with Client. If the Licensed Services include account level data for a specific Data Provider, such data may be disclosed only to that Data Provider.