Data Study - Terms of Service

General Terms

1. DEFINITIONS AND INTERPRETATION

1.1. In these General Terms the following definitions shall apply:

“Additional Terms” means the special terms and conditions relating to particular Datasets and/or aspects of the Service as updated from time to time which are available at https://www.gbgplc.com/en/legal-and-regulatory/legal-additional-terms/ data-maintenance

“Affiliate” means in relation to a Party, that Party, or another company if that other company: (a) holds a majority of the voting rights in it, or (b) is a member of it and has the right to appoint or remove a majority of its board of directors, or (c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it, or if it is a subsidiary of a company that is itself a subsidiary of that other company.

“Agreement” means the Additional Terms, the DPA, these General Terms, which in the case of conflict rank in the order of precedence set out above

"Applicable Data Protection Law(s)" means all worldwide data protection and privacy laws and regulations applicable to the Customer Data (as defined below) including, as applicable, (I) Regulation 2016/679 (General Data Protection Regulation) (the "EU GDPR"); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); (iii) any and all applicable national law made under or pursuant to (i) or (ii); (iv) the EU GDPR as it is saved and incorporated into UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the "UK GDPR"); and (v) the California Consumer Privacy Act of 2018 and its corresponding regulations, as amended by the California Privacy Rights Act (collectively the “CCPA”), the Virginia Consumer Data Protection Act, the Colorado Privacy Act, and any other comprehensive US state privacy laws; (vi) Biometric Information Privacy Act of Illinois (“BIPA”); and (vi) any amendment, consolidation or re-enactment thereof, any legislation of equivalent purpose or effect enacted, and any orders, guidelines, guidance and instructions issued under any of the above or by any other relevant national authorities.

“Business Day” means Monday to Friday (excluding national holidays).

“Customer” means the organisation, firm, company or public authority that receives the Data Study provided by GBG. “Customer Data” any data provided to GBG by the Customer for processing in accordance with the terms of the Agreement including, where relevant, any personal data.

“Customer Information” means Customer Data and any other materials provided or otherwise made available to GBG by or on behalf of the Customer (including the Input Materials).

“Commercial Purposes” means any use of the Output Material other than for internal use for evaluating its quality.

“Confidential Information” means any information relating to the business of the disclosing Party which is not publicly available including, but not limited to, (i) Customer Data, information regarding the business, affairs, customers, clients, suppliers, operations, processes, product information, know-how, technical information, designs, trade secrets or software of the disclosing Party; (ii) any information, findings, data or analysis derived from Confidential Information including the Output Material; (iii) the existence and terms of this Agreement; and (iv) any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business of the disclosing Party.

“Data Study” means the processing and enhancement of Input Materials by GBG and the delivery of the Output Materials to the Customer.

“Datasets” means an individual data service included or delivered as part of the Service. Where applicable, this may incorporate Supplier Data or utilise information derived from Supplier Data.

“Data Processing Agreement” or “DPA” means the data processing agreement (including its schedules) that sets out the privacy provisions that shall apply which is available at: https://www.gbgplc.com/en/legal-and-regulatory/data-processing-agreement/

“Data Subject” means an identifiable natural person about whom a Controller holds personal data. For the purposes of this Agreement, this may include an individual whose details are provided to GBG by the Customer as part of the Customer Data or whose details are contained within the Supplier Data.

“Data Supplier” means GBG’s third-party data suppliers that provide Supplier Data for use in GBG’s products and services.

“Evaluation License” means a license to use the Output Material solely for the purposes of assessing the quality of the Output Material.

“Evaluation Start Date” means the date on which GBG receives the Input Materials.

“Event of Force Majeure” means any one or more acts, events, omissions or accidents beyond the reasonable control of a Party, including but not limited to: strikes, lock-outs or other industrial disputes (other than a Party’s own); failure of a utility service, or transport network or information technology or telecommunications service; act of God (including without limitation fire, flood, earthquake, storm or other natural disaster); war, threat of war, riot, civil commotion or terrorist attack; malicious damage (including without limitation the acts of hackers that could not have been prevented by a Party acting reasonably); epidemic; and/or pandemic, compliance with any change of law or governmental order, rule, regulation or direction; and/or default, caused by an event of force majeure or the insolvency of such suppliers or sub-contractors. For the avoidance of doubt, a Party’s inability to pay money does not constitute a Force Majeure Event.

“Input Materials” means the data provided by the Customer to GBG for processing.

“Intellectual Property Rights” means (i) patents, rights to inventions, rights in designs, trademarks and trade names, copyright and related rights, rights in goodwill, database rights and know-how, whether registered or not; (ii) all other intellectual property rights or forms of protection and similar or equivalent rights anywhere in the world (whether registered or not) which currently exist or are recognized in the future; and (iii) all applications, extensions and renewals to any such rights.

“Output Material” means all information and or Supplier Data provided to a Customer by GBG.

“Party” means a party to this Agreement and “Parties” shall be construed accordingly.

“Permitted User” means anyone who has been given access to the Output Material by the Customer in compliance with the terms of this Agreement.

“Personal Data” shall have the meaning set out in the Applicable Data Protection Law and shall be applied to all Data Subjects being processed under the Agreement; provided however, where this term is not defined, it shall mean any information relating to a Data Subject; who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Service” means the GBG service or product from GBG, as indicated in the Order Form, together with any Standard Support Services and any other ancillary services provided by GBG to the Customer pursuant to this Agreement.

“Supplier Data” means any data provided to GBG and/or the Customer by the Supplier or used within the Services including, where relevant, any Personal Data.

1.2. References to clauses, sections and appendices are to clauses, sections and appendices of this Agreement.

1.3. A reference to “writing” or “written” does not include electronic mail or facsimiles.

2.    TERM OF THE AGREEMENT

2.1.    This Agreement begins when the Customer accepts These Terms and continues until GBG delivers the Output Material, unless terminated earlier in accordance with clause 9 of these General Terms.

2.2.    The Customer must submit its Input Materials to GBG within thirty (30) days of accepting this Agreement. If the Customer fails to provide the Input Materials within this period, GBG shall have no obligation to perform the Data Study and may terminate this Agreement immediately upon notice. For clarity, the Evaluation License shall run for a period of three (3) months from the Evaluation Start Date, being the date on which GBG first receives the Customer’s Input Materials.

2.3.    Acceptance & electronic communications. The Customer accepts and agrees to be bound by this Agreement by (a) clicking an “I Accept”, “Agree”, “Continue” or similar button or checkbox presented with these terms, (b) accessing or using the Data Study and/or any Output Material, and/or (c) submitting Input Materials. The individual completing acceptance represents and warrants that they have authority to bind the Customer. The Parties agree that this Agreement may be formed electronically and that electronic records (including the time, date, account identifier and/or IP address associated with acceptance) may be used as evidence of acceptance. Notwithstanding clause 1 (writing), the Parties may communicate electronically (including by email or via an online portal) for operational and administrative purposes; however, formal notices under clause 13 must be served in accordance with clause 13.

2.4.    Incorporation of linked documents. The Customer acknowledges that this Agreement includes and incorporates by reference (i) the Additional Terms and (ii) the DPA, each as made available at the URLs referenced in clause 1. The Customer confirms it has had the opportunity to read those documents before accepting this Agreement. Where Additional Terms apply to a Dataset and/or aspect of the Service, they apply automatically to the Customer’s use of that Dataset and/or aspect of the Service.

3.    PROVISION OF THE DATA STUDY

3.1.    The Customer acknowledges that delivery of the Data Study depends on (i) the Customer’s timely cooperation and compliance with this Agreement and (ii) factors outside GBG’s reasonable control.

3.2.    The Customer is responsible for providing all Input Materials to GBG (a) in the agreed manner, format, quantity and timescales, in a readable condition, using secure file transfer protocols (“FTP”) and complying with any related instructions; and (b) where supplied on physical media, ensuring the media is undamaged and meets any agreed specification.

3.3.    Subject to clause 3.2, GBG will process the Input Materials and return the Output Materials to the Customer via secure FTP.

3.4.    Input Materials may be scanned for viruses and malware and any affected Input Materials will not be processed. GBG is not liable for any deletion, destruction of, or damage to, Input Materials, and has no obligation to reprocess Customer Data for any reason. The Customer must retain duplicates of all Input Materials supplied.

3.5.    The Data Study is provided solely for evaluation purposes. The Customer may submit no more than 10,000 records as Input Materials under this Agreement and GBG has no obligation to process Input Materials in excess of that limit.

4.    USE OF THE OUTPUT MATERIAL

4.1.    The Customer shall comply with these General Terms, the DPA and any applicable Additional Terms.

4.2.    Subject to clause 5, GBG grants the Customer an Evaluation License to use the Output Material solely to assess its quality, for the Customer’s internal use by the Customer and its Permitted Users. The Customer must not (and must not permit any third party to) use the Output Material in a production environment or for any Commercial Purposes, or resell, sublicense, transfer or otherwise make the Output Material available to any third party.

4.3.    The Customer warrants that it will comply with all applicable legislation, regulatory instructions and guidelines, relevant licenses, and any other applicable codes of practice.
4.4.    The Customer is responsible for the acts and omissions of all Permitted Users and is liable for any failure by a Permitted User to comply with this Agreement, including  the Additional Terms and any reasonable instructions issued by GBG.

4.5.    GBG may withhold Output Materials or refuse to carry out or complete the Data Study if doing so would cause GBG to breach Privacy and Data Protection Requirements or any third-party Intellectual Property Rights.

5.    INTELLECTUAL PROPERTY RIGHTS

5.1.    All Intellectual Property Rights in the Output Material belong to and shall remain with GBG and/or the Data Suppliers. Except for the Evaluation License in clause 4.2, no rights are granted to the Customer.

5.2.    The Customer warrants that: (a) it will not use or exploit (or permit others to use or exploit) the Output Material or any Intellectual Property Rights in it outside the Evaluation License; and (b) GBG’s use of the Customer Information for the purposes of the Data Study will not infringe any third-party Intellectual Property Rights.

6.    CONFIDENTIALITY AND PUBLICITY

6.1.    Each Party shall keep the other Party’s Confidential Information confidential and shall not disclose it to any third party, except as permitted by this clause 6 or to the extent necessary to perform this Agreement. Each Party shall protect the other’s Confidential Information using at least the same degree of care it uses for its own confidential information and no less than a reasonable standard of care, and shall use it only to perform its obligations under this Agreement.

6.2.    A Party may disclose the other Party’s Confidential Information (a) to its (and its Affiliates’) employees, officers, representatives, advisers and third-party suppliers who need to know it for performance of this Agreement, provided it remains responsible for their compliance with this clause 6; and (b) as required by law, court order or any governmental or regulatory authority.

6.3.    Confidential Information does not include information that: (a) is or becomes publicly available other than through a breach of this Agreement; (b) was lawfully in the recipient’s possession before disclosure; (c) is obtained lawfully from a third party free to disclose it; or (d) the Parties agree in writing is not confidential or may be disclosed.

6.4.    GBG shall not issue a press release or other public communication relating to the Parties’ entry into this Agreement without the Customer’s express prior written consent.

7.    DATA PROTECTION

7.1.    Both Parties shall comply with their respective obligations as set out in the DPA and/or any additional privacy provisions that relate to the use of certain Datasets and/or Output Material, as set out within the Additional Terms.

8.    LIABILITY

8.1.    Neither Party excludes or limits its liability for death or personal injury resulting from its negligence, fraudulent misrepresentation or any other type of liability that cannot by law be excluded or limited.

8.2.    Neither Party excludes or limits its liability in respect of clauses 4.2 and 4.3 and clauses 5, 6 and/or 7 of this Agreement.

8.3.    Subject to clauses 8.1 and 8.2, each Party’s aggregate liability to the other Party under or in connection with this Agreement, whether such liability arises in contract, tort (including, without limitation, negligence) misrepresentation or otherwise, shall be limited to US$5,000. 

8.4.    Subject to clauses 8.1 and 8.2, neither Party shall be liable for loss of profits, business or anticipated savings, destruction or deletion of data, loss of use of data, loss of reputation, loss of goodwill, any special, indirect or consequential loss or damage.

8.5.    The Customer agrees that except as expressly set out in this Agreement, all warranties, conditions and other terms relating to the Data Study and this Agreement whether express or implied by law, custom or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.

9.    SUSPENSION AND TERMINATION

9.1    GBG may terminate this Agreement immediately and without notice in the event that the Customer breaches or GBG suspects that the Customer has committed a material breach of any term of this Agreement, or the Customer ceases or threatens to cease carrying on business or is or becomes unable to pay its debts or any event analogous to this occurs in any jurisdiction.

9.2    When the Agreement terminates:

(a)    the Customer will cease to provide Input Material to GBG and will return or destroy the Output Material and all copies of it.  Upon GBG’s request, the Customer shall provide a written confirmation (signed by an authorised representative of the Customer) that it has complied with this clause 9.2(a); and
(b)    the Parties will return or destroy (at the option and request of the disclosing Party) any Confidential Information belonging to the other Party in its possession or control.

9.3    The termination of this Agreement does not affect the accrued rights, remedies and obligations or liabilities of the Parties existing at termination. Nor shall it affect the continuation in force of any provision of this Agreement that is expressly or by implication intended to continue in force after termination.

10.    AUDIT RIGHTS

10.1.    GBG reserves the right to audit the Customer’s use of the Service to check compliance with the terms of the Evaluation License in accordance with the Agreement. In the event that such audit reveals that the Customer has exceeded the scope of the Evaluation License, GBG shall be entitled to (i) recover the full cost of the audit; and (ii) Charge for any over-usage.

11.    DISPUTE RESOLUTION

11.1.    If any dispute arises out of or in connection with this Agreement (a “Dispute”), the Parties’ authorised representatives shall attempt in good faith to resolve it. If the Dispute is not resolved within 10 Business Days of receipt of a notice of dispute, it shall be escalated within each Party. If it remains unresolved within 30 Business Days after escalation, the Parties shall attempt to settle it by mediation. If no settlement is reached within 25 Business Days from the date mediation begins, either Party may refer the Dispute to the courts of the State of New York, U.S.A. in accordance with clause 15.2.

11.2.    Nothing in this clause 11 prevents either Party from seeking injunctive or other equitable relief at any time.

12.    EVENT OF FORCE MAJEURE 

12.1.    Neither Party shall be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from an Event of Force Majeure. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. 

13.    NOTICES

13.1.    Notices required under this Agreement must be in writing and delivered by hand/courier or sent by first class post to: (a) GBG at 2300 Windy Ridge Pkwy SE, Suite 1115, Atlanta, GA 30339, USA; and (b) the Customer at its registered office address (if a corporate body). This clause 13 applies to formal notices under the Agreement and does not restrict routine operational or administrative communications being sent electronically (including by email or via an online portal).

13.2.    A notice is deemed received (i) if delivered by hand/courier, when left at the relevant address; or (ii) if sent by first class post, two Business Days after posting.

13.3.    This notices clause does not apply to service of proceedings or other documents in any legal action.

14.    MISCELLANEOUS 

14.1.    The Customer may not assign or transfer any of its rights or obligations under this Agreement without obtaining the prior written consent of GBG. 

14.2.    Save where expressly stated in the Additional Terms, a person who is not party to this Agreement has no rights under this Agreement, including any right to enforce any terms of this Agreement, as a third-party beneficiary or otherwise.

14.3.    This Agreement constitutes the entire agreement between the Parties and replaces and supersedes all previous written or oral agreements relating to its subject matter.

14.4.    The Parties agree that in connection with this Agreement its only rights and remedies in relation to any representation, warranty or other assurance are for breach of contract and that all other rights and remedies are excluded, except in the case of fraud.

14.5.    If any provision of this Agreement) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement.

14.6.    This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all counterparts shall together constitute the same Agreement.  No counterpart shall be effective until each Party has executed at least one counterpart.

14.7.    No failure or delay by a Party to exercise any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy nor shall it preclude or restrict the further exercise of that or any other right or remedy.  No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other remedy.

15.    GOVERNING LAW AND JURISDICTION

15.1.    By entering into this Agreement, the Parties warrant that they each have the right, authority and capacity to enter into and be bound by the terms and conditions of this Agreement and that they agree to be bound by these.

15.2.    This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed and construed in accordance with the laws of the State of New York, U.S.A and subject to clause 11 both Parties submit to the exclusive jurisdiction of the New York Courts, save that, in the event applicable laws in relation to GDPR requires any disputes or claims to be governed in the jurisdiction of a European Union member state, then any disputes shall be governed and construed in accordance with English Law and both parties submit to the exclusive jurisdiction of the English Courts.