Annex 1: Terms of Business of Analysys Mason (Research Division)

These terms and conditions, together with the Schedule to which they are attached, comprise the whole agreement between the Company (as defined below) and the Customer (as defined below) in relation to the provision of Services (“Agreement”) and/or access to the Subscription Service.

Capitalised terms used in these terms shall have the following meanings or are defined where first used or in other documents comprising these terms. Use of the term “days” means “calendar days” unless otherwise specified. Captions, titles and headings to articles and sections of these terms are inserted for convenience of reference only and are not intended to affect the interpretation or construction of these terms.

AGREED TERMS: INTERPRETATION

The following definitions and rules of interpretation in this clause apply in this Agreement (unless the context requires otherwise): 

• AI: Artificial intelligence and machine-learning technologies.
• Commencement Date: the date specified in the Schedule.
• Company: the Analysys Mason contracting entity as defined in the Schedule.
• Confidential Information: information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of the Company or the Customer for the time being confidential to the Company or the Customer and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or the Customer. Deliverables produced by the Company in connection with the Services performed under this Agreement.
• Customer: the client or customer of the Company receiving the benefit of the Services as specified in the Schedule.
• Data Protection Legislation: the Data Protection Act 1998, the General Data Protection Regulation (EU) 2016/679 and any other laws relating to the protection of personal data and the privacy of individuals.
• Deliverables: all reports, surveys and other documents produced or commissioned by or on behalf of the Customer, in the performance of the Services in whatever form provided by the Company in connection with the provision of the Services and/or the Subscription Service including without limitation those items identified as Deliverables or Subscription Service materials in the Schedule.
• Force Majeure: an event which is beyond the reasonable control of either the Company or the Customer, and which makes the performance of either party’s obligations under this Agreement impossible or so impractical as reasonably to be considered impossible in the circumstances, and includes, but is not limited to, acts of God, war, riots, civil disorder, earthquake, fire, explosion, storm, flood or other exceptionally adverse weather conditions, strikes, public health related events officially declared by a governmental authority or the World Health Organization. Force Majeure events shall not include: (i) any event which is caused by the negligence or intentional action of a party or such party’s personnel or agents; (ii) any event which a diligent party could reasonably have been expected to both: (a) take into account at the time this Agreement was entered into; and (b) avoid or overcome in the carrying out of its obligations thereunder; or (iii) the insufficiency of funds, inability to make any payment required under this Agreement, or any economic conditions, including but not limited to inflation, price escalations, or availability of personnel.
• Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
• Pre-existing Materials: all documents, information and materials provided by the Company relating to the Services which existed prior to the commencement of this Agreement including those items specified in the Schedule.
• Representative: individually or collectively, the directors, officers, employees, subcontractors, agents and any other representative of the entity.
• Schedule: the terms specified in the document to which these terms and conditions are attached.
• Services: the services described in the Schedule.
• Subscription Service: the service made available by the Company at www.analysysmason.com and which provides online access to published content.

All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this Agreement shall include all genders and the plural and the successor in title to the parties.

1 TERM OF ENGAGEMENT

1.1 The Customer shall engage the Company and the Company shall provide the Services on the terms of this Agreement.

1.2 This Agreement shall commence or shall be deemed to have commenced on the Commencement Date and shall continue unless and until terminated as provided by the terms of this Agreement.

2 PRECEDENCE

2.1 These Conditions shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.

2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Company, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Company other than:

a) by a written acknowledgement issued and executed by the Company; or

b) (if earlier) by the Company starting to provide the Services,

when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern this Agreement.

3 THE COMPANY’S OBLIGATIONS

3.1 The Company shall use reasonable endeavours to manage or provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Schedule.

3.2 The Company shall use reasonable endeavours to meet any performance dates specified in the Schedule, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4 THE CUSTOMER’S OBLIGATIONS

4.1 The Customer shall:

a) co-operate with the Company in all matters relating to the Services;

b) provide to the Company, in a timely manner, any materials and other information as the Company may require and ensure that it is accurate in all material respects;

c) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services;

4.2 If the Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

4.3 The Customer shall be liable to the Company, for all reasonable costs, charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to the Company confirming such costs, charges and losses to the Customer in writing.

5 SUBSCRIPTION SERVICE (IF APPLICABLE)

5.1 In consideration of the payment of any fees specified in the Schedule in respect of the Subscription Service, the Customer shall be granted access to the Subscription Service and any Deliverables specified in the Schedule as included in such access.

5.2 Access to the Subscription Service shall be provided subject to payment of an annual fee. Access will be provided for a period of twelve (12) months or such other period as specified in the Schedule beginning on the Commencement Date.

5.3 On termination of the Subscription Service for any reason whatsoever, the Customer’s access shall be terminated and the Customer shall have no further right to access the Subscription Service or any materials provided therein. 

5.4 The Company reserves the right to withdraw, suspend or amend the Subscription Service without notice. The Company will not be liable if for any reason the Subscription Service is unavailable at any time or for any period.

5.5 To access the Subscription Service, the Customer will choose, or will be provided with, a user identification code, password or any other piece of information as part of the Company’s security procedures. The Customer shall treat such information as confidential and shall not disclose it to any third party. The Company reserves the right to disable any user identification code or password, whether chosen by, or allocated to, the Customer, if in the Company’s reasonable opinion, the Customer has failed to comply with any of the provisions of the terms of this Agreement and any other terms of use in place from time to time 

5.6 The Customer shall be responsible for making all arrangements necessary for it to have access to the Subscription Service. The Customer shall be responsible for ensuring that all persons who access the Subscription Service through the Customer’s Internet connection are aware of the terms of this Agreement and that they comply with them. 

5.7 The Customer may use the Subscription Service only for lawful purposes. The Customer may not use the Subscription Service:

a) in any way that breaches any applicable local, national or international law or regulation;

b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;

c) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);

d) to provide services to third parties through a service bureau, outsourcing model, as an application service provider or pursuant to any other similar arrangement; or

e) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

5.8 The Customer shall not:

a) reproduce, duplicate, copy or re-sell any part of the Subscription Service and/or any Deliverables specified in the Schedule as included in such access in contravention of the terms of this Agreement; or

b) access without authority, interfere with, damage or disrupt any part of the Subscription Service or the site via which it is provided.

6 RELIANCE ON INFORMATION POSTED

6.1 Commentary and other materials posted as part of the Subscription Service are not intended to amount to advice on which reliance should be placed. The Company therefore disclaims all liability and responsibility arising from any reliance placed on such materials by the Customer, or by anyone who may be informed of any of the contents of such materials.

7 LINKS FROM THE SUBSCRIPTION SERVICE

7.1 Where the Subscription Service contains links to other websites and resources provided by third parties, these links are provided for information only. The Company shall have no responsibility for such websites or for any loss or damage that may arise from the Customer’s access or use of such websites.

8 INTELLECTUAL PROPERTY RIGHTS

8.1 As between the Customer and the Company, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Company. The Company licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If this Agreement terminates, this licence shall automatically terminate. 

8.2 The Customer acknowledges that, where the Company does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Company obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Company to license such rights to the Customer.

8.3 The Company is the owner or the licensee of all Intellectual Property Rights as specified in the Schedule. 

8.4 The Customer may print off and download the whole of, or extracts of, the Deliverables specified in the Schedule as included in the Subscription Service for its personal, internal reference. 

8.5 The Customer may not modify the materials, including the Deliverables, whether or not they are paper or digital copies of any materials (including the Deliverables specified in the Schedule as included in the Subscription Service) printed off or downloaded in any way.

8.6 The Company’s status (and that of any identified contributors) as the authors of any material provided as part of the Subscription Service must always be acknowledged. 

8.7 The Customer may not use any part of the materials provided as part of the Subscription Service (including the Deliverables specified in the Schedule) other than for its own, internal business purposes without obtaining a licence to do so from the Company or its licensors. 

8.8 Any breach of the terms of this Agreement shall entitle the Company to terminate the Customer’s right to use the Subscription Service immediately and the Customer shall, at the Company’s option, return or destroy any copies of such materials it has made and make a declaration, statutory or otherwise, to that effect.

9 CHARGES AND PAYMENT

9.1 In consideration of the provision of the Services by the Company, the Customer shall pay the charges as set out in the Schedule, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Clause 9.2 shall apply if the Company provides Services for a fixed price. The remainder of this clause 9 shall apply in any case.

9.2 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Schedule. The total price shall be paid to the Company (without deduction or set-off) in instalments, as set out in the Schedule. The Company shall invoice the Customer in accordance with the Schedule for the charges that are then payable, together with the costs of materials, VAT (which the Company shall add to its invoices at the appropriate rate) and expenses, in accordance with the Schedule. All payments must be identified by invoice number to ensure correct allocation to the Customer’s account.

9.3 Invoices are payable by the Customer within 30 days of the invoice date. If any sum is not paid when due then that sum shall bear interest from the due date until payment is made in full, both before and after any judgment, at 5% per annum over the Bank of England’s base rate as notified from time to time. The Company is entitled to suspend performance of the Services as a result of any sums being outstanding.

9.4 All sums payable to the Company under this Agreement shall become due immediately on its termination, despite any other provision. This clause 9.4 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

9.5 The Company may, without prejudice to any other rights it may have, set off any liability of the Customer to the Company against any liability of the Company to the Customer.

10 CONFIDENTIALITY AND DATA PROTECTION

10.1 Each party shall keep in strict confidence, using a reasonable standard of care, all Confidential Information that has been disclosed to it by the other party. 

10.2 Each party may disclose such information:

a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information solely for the purposes of carrying out its obligations under this Agreement; and

b) as may be required by law, court order or any governmental or regulatory authority.

10.3 Each party shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with clause 10.2.

10.4 Each party shall not use any such information for any purpose other than to perform its obligations under this Agreement.

10.5 For the purpose of clause 10.5 “Data Subject”, “Processing” and “Personal Data” have the meaning set out in Data Protection Legislation. The Company shall comply with its obligations under Data Protection Legislation and shall in particular:

10.5.1 only disclose Personal Data to the extent necessary in order for it to perform the Services and in accordance with written instructions from the Customer;

10.5.2 implement and maintain appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing and the likelihood and severity of risk in relation to the rights and freedoms of the Data Subjects;

10.5.3 not transfer the Personal Data outside of the European Economic Area (“EEA”);

10.5.4 ensure that any employees or other persons authorised to Process the Personal Data are subject to appropriate obligations of confidentiality;

10.5.5 not engage any third party to carry out its Processing obligations under this Agreement without notifying the Customer and procuring by way of a written contract that such third party will, at all times during the engagement, be subject to Processing obligations equivalent to those set out in this clause;

10.5.6 as soon as reasonably possible and without undue delay notify the Customer, about any request (including subject access request) or complaint received from Data Subjects without responding to that request (unless authorised to do so by the Customer) and assist the Customer by technical and organisational measures, insofar as possible, for the fulfilment of the Customer’s obligations in respect of such requests and complaints;

10.5.7 notify the Customer without undue delay as soon as it becomes aware of any breach in data security;

10.5.8 maintain appropriate records and information in compliance with Data Protection Legislation and, on request by the Customer, make available such records and information necessary to demonstrate the Processor’s compliance with this clause and otherwise permit, and contribute to, audits carried out by the Customer (or its authorised representative); and

10.5.9 on termination or expiry of this Agreement, destroy or return (as the Customer directs) all Personal Data in its power, possession or control and delete all existing copies of such data except to the extent the Company is required to retain a copy of the Personal Data by law.

10.6 The Customer hereby consents to the Company transferring the relevant Personal Data outside of the EEA, provided that the following conditions are fulfilled:

10.6.1 the Customer or the Company has provided appropriate safeguards in relation to the transfer;

10.6.2 the Data Subject has enforceable rights and effective legal remedies;

10.6.3 the Company provides an adequate level of protection to any Personal Data that is transferred; and

10.6.4 the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the Processing of the Personal Data.

10.7 The Customer will not use Company data or Deliverables in any AI tool, programme, or software.

11 LIMITATION OF LIABILITY

11.1 This clause 11 sets out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:

a) any breach of this Agreement;

b) any use made by the Customer of the Services, the Deliverables or any part of them; and 

c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

11.3 The Company shall not be liable for loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss of corruption of data or information; any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

11.4 The material displayed via the Subscription Service (including any Deliverables specified in the Schedule as included in such service) is provided without any guarantees, conditions or warranties as to its accuracy. To the extent permitted by law, the Company, and members of its group of companies and third parties connected to such expressly exclude: 

a) all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; and

b) any liability for loss of income or revenue; loss of business; loss of profits or contracts; loss of anticipated savings; loss of data; loss of goodwill; wasted management or office time or any indirect or consequential loss or damage incurred by any user in connection with the Subscription Service however arising and whether caused by tort (including negligence or negligent misstatement), breach of contract or otherwise, even if foreseeable.

11.5 Nothing in the terms of this Agreement shall affect the Company’s liability for death or personal injury arising from its negligence, nor any other liability which cannot be excluded or limited under applicable law. 

11.6 Subject to clause 11.5, the Company’s maximum aggregate liability to the Customer under or in connection with the Schedule, whether such claim arises in contract or in tort (including negligence), or otherwise shall be limited to direct losses only and in no circumstances exceed the amount payable to the Company as set out in the Schedule. 

11.7 The Company shall have no liability for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect the Customer’s computer equipment, computer programs, data or other proprietary material through use of the Subscription Service or to the downloading of any material posted on it, or on any website linked to it.

11.8 No action, regardless of form, arising out of transactions occurring under or contemplated under this Agreement may be brought by either party more than six years after the cessation of Services pursuant to this Agreement.

12 TERMINATION

12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other on giving the other not less than one month’s written notice to the other if:

a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or

b) the other party commits a material breach of any of the terms of this Agreement; or

c) the other party ceases to do business, becomes unable to pay its debts as they fall due, becomes or is deemed insolvent, has a receiver, liquidator, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets; or

d) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

12.2 The Company may terminate this Agreement for convenience by giving 30 days’ written notice to the Customer.

12.3 On termination of this Agreement for any reason:

a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt; and 

b) the Customer shall return all of the Company’s Pre-existing Materials and Deliverables.

The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

12.4 Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination shall remain in full force and effect notwithstanding such termination.

13 FORCE MAJEURE

13.1 The Company shall not be liable for any delay or failure in performing its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. The affected party will provide written notice of such circumstances and delay to the other where it is possible to do so and take reasonable steps to avoid or mitigate the consequences or impact of a Force Majeure event.

13.2 Where possible in the conditions prevailing at the time, within a period of one month from the date of such notice the Company and Customer shall meet to agree steps to alleviate any failure or delay in performance. The Customer will grant the Company an extension of time in order to perform the Services if this is deemed suitable in the prevailing circumstances.

13.3 After one month from the date of such notice, if the Force Majeure event continues or the situation arises where the Company’s ability to perform the Services under the conditions is not possible, then the Company may terminate this Agreement and the Customer shall pay all fees and expenses then owing to the Company (including all the expenses of, caused by or arising out of such termination).

14 GENERAL

14.1 The Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. 

14.2 Subject to clause 14.1, no variation of this Agreement or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

14.3 The Services supplied to the Customer by the Company are for use within the country in which the Customer is registered. The Customer warrants to the Company that such Services will not be used in embargoed territories or where there are currently trade sanctions in place. It is the Customer’s sole and exclusive responsibility to obtain any and all appropriate approvals from the applicable government entities, which may include the US government and/or member states of the EU and EFTA or any other government with jurisdiction, prior to exporting any Deliverables or any technical data.

14.4 This Agreement constitutes the entire and only agreement between the parties in relation to its subject. Each of the parties acknowledges that they are not relying on any statements, warranties or representations given or made by any of them in relation to the subject matter of this Agreement, save those expressly set out in this Agreement, and that they shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement save to the extent that they arise out of the fraud or fraudulent misrepresentation of another party.

14.5 This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.

14.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

14.7 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given.

14.8 If any provision of this Agreement (or part of any provision) 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, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

14.9 If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

14.10 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under this Agreement.

14.11 The Company may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent. 

14.12 Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

14.13 Any notice or other communication required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by e-mail, post, or by commercial courier to the other party and for the attention of the person specified in the Schedule, or as otherwise specified by the relevant party by notice in writing to the other party. 

14.14 This Agreement shall be governed by and construed in accordance with the law of England and Wales.