Terms & Conditions
Subscription Data Products – Glow
1. Basis of agreement
1.1 These terms and conditions (the “Terms”), together with the order form, any statement of work or other document incorporating the Terms by reference (the “Order”) signed by the customer and Glow forms the entire agreement between the Glow company named on the Order (“Glow”) and the customer named on the Order (the “Customer”). Each Order will include a description of the Glow data product subscription/s purchased by the Customer (the “Subscription Data Products”, “SDPs”) including the duration of the Subscription Data Products subscription (the “Subscription Term”). Any other terms and conditions shall be of no effect. In the event of any conflict between the Order and these Terms, the provisions in the Order will prevail.
1.2 Any defined terms used in these Terms shall have the meaning set out in the Order or these Terms (together “the Agreement”)
2. Glow’s obligations
2.1 Glow shall use commercially reasonable endeavours to make the SDPs available on a continuous basis subject to any downtime necessary for essential maintenance. Glow will provide at least 24 hours’ notice to the Customer of anticipated temporary unavailability.
2.2 Glow agrees to sustain access levels to the SDPs in scope of this Agreement on an ‘on demand’ basis for SDP Customers.
2.3 Glow will aim to achieve uptime levels for accessibility to its data of at least 98% during the Subscription Term.
2.4 Where Glow is shown to fall short of these target uptime levels customers may request remedy for such interruptions – the sole remedy shall be limited to pro-rated access to Glow’s services.
2.5 If Glow is in substantial and repeated breach of its uptime targets Customers may request to cancel their subscription for a full or partial refund. Requests will be assessed in a timely manner in light of the circumstances for each request at Glow’s absolute discretion.
2.6 Glow may prepare and release updates and improvements to the SDPs during the Subscription Term.
3. Authorised use
3.1 Where necessary for the receipt of such Services, the Customer may provide, if approved by Glow and specified in the relevant Order prior to the commencement of the Agreement, access to the relevant SDPs (each, an “Authorised User”) to individuals employed or directly contracted by:
3.1.1 the Customer
3.1.2 the Customer’s Affiliates within related or owned entities
3.1.3 named Third Party entities
3.2 The Customer shall provide Glow with an updated list of Authorised Users if requested at any time during the Subscription Term.
3.3 Solely relating to the brand specified in the relevant Order, Authorised Users may:
3.3.1 download and print content from the SDPs (“Glow Content”) and distribute such content within the Customer’s organisation for internal use only;
3.3.2 create new materials derived from Glow Content combined with other materials provided by the Customer (“New Materials”);
3.3.3 distribute limited extracts, which are provided data or associated outputs that of its own or connected to other Limited Excerpts does not constitute unique commercial value to Glow (“Limited Extracts”) to a limited audience comprising the Customer’s end clients or prospective clients but not the general public; and
3.3.4 subject to the approval process and attribution requirements in the below clause (publication approval service), publish New Materials and/or Limited Extracts in press releases and similar publications.
4. Usage restrictions
4.1 Neither the Customer, nor any Authorised User may:
4.1.1 redistribute or make available to third parties any part of the SDPs or extract any software or scripts from the SDPs except as permitted in this Agreement; or
4.1.2 remove, redact or modify any copyright or other notices included in the SDPs nor any intellectual property (“IP”) that may be associated with the SDPs; or
4.1.3 systematically scrape, crawl, harvest, retrieve or otherwise gather any data or other content to copy, create, acquire or compile – directly or indirectly, in single or multiple downloads – a collection, compilation, database, directory or similar, to Glow’s SDPs.
4.2 Nothing in this Agreement shall be construed as allowing the use of the SDPs, or any extracts from the SDPs, to create a derivative work, product or service which:
4.2.1 infringes the Intellectual Property Rights of Glow or its licensors; or
4.2.2 is a commercially competitive work, product or service or part thereof which competes with or could be substituted for a work, product or service provided by Glow; or
4.2.3 otherwise damages the commercial interests of Glow.
4.3 The Customer shall take commercially reasonable technical and organisational steps to restrict access to the SDPs to Authorised Users only, and to ensure that Authorised Users do not share or disclose passwords; and shall report any unauthorised disclosure, access, cyber security breaches or sharing of passwords to Glow promptly to enable Glow to take remedial steps.
4.4 Glow may use technical protection measures including analysis and usage audits to control access and/or to detect unauthorised use of the SDPs.
4.5 Should the number of users increase substantially above the number originally anticipated at the time the Order is signed and upon which the pricing is based, the Customer shall promptly report this to Glow and pay Glow for the additional access equal to a pro rata amount of the Customer’s subscription fee. Thereafter, the parties shall, in good faith, negotiate an increased price based upon the new number of Authorised Users.
4.6 In the event that the Customer fails to report a substantial increase in its use of the SDPs, Glow may, at its discretion and without prejudice to any other remedy, suspend access or terminate this Agreement.
4.7 Glow or its nominee accountants or auditors may upon reasonable notice inspect and audit the Customer’s use of the SDPs under an Order at any time during its term. Audits will be conducted no more frequently than once in any 12-month period and in a manner that does not unreasonably interfere with the Customer’s business operations. The Customer shall provide assistance as may reasonably be requested by or on behalf of Glow with respect to such audit. If the audit determines that the Customer’s use of the Services exceeded the usage permitted by the relevant Order, the Customer shall pay to Glow all reasonable costs incurred by Glow. If the Customer refuses to cooperate with an audit that has been reasonably requested by Glow or its affiliates within two weeks of being notified of the audit Glow may, at its discretion and without prejudice to any other remedy, suspend access or terminate this Agreement.
5. Publications approval service
5.1 The Customer may publish, communicate and make available to the public, via the internet or other publicly accessible electronic media, press releases and other documents making reference to Glow as the source of the research (“Public Content”) provided that the Customer complies with the following process:
5.1.1 the Customer sends a draft of the Public Content to Glow as an email attachment to Glow’s email address as shown on the Order;
5.1.2 Glow will review for a) accuracy in relation to the description of the methodology used and b) overall sentiment and respond with material corrections by email to the Customer within 2 working days of receipt;
5.1.3 the Customer may publish the Public Document incorporating Glow’s corrections, with attribution to Glow as the source, and using approved brand assets, links or materials as required;
5.1.4 all Public Documents must contain an attribution to Glow in the following form: “Source: Glow© All rights reserved” but Glow reserves the right to waive or prohibit such acknowledgement during the review process.
5.1.5 this process can be supported six (6) times during the term of this agreement. Additional requests may be supported at Glow’s discretion.
5.1.6 Glow reserves the right to approve or decline requests for publication at its sole discretion.
5.2 If for any reason a Public Document is made public without undergoing the process set out in this clause, Glow reserves the right to, at its sole discretion:
5.2.1 issue a press release with a version of the Public Document incorporating Glow’s corrections (and may include some, or all, of the information set out below);
5.2.2 release any information from a survey that sets data published by the Customer into context, including but not limited to, sampling and weighting data, the precise questions asked, the full answer options provided to respondents, and the percentages of people, both overall and in the relevant subgroups, who responded to each answer option
5.2.3 Suspend access or terminate this Agreement.
6. Fees and payment
6.1 All fees, charges and expenses will be set out in the Order and shall be quoted, invoiced and paid in the currency stated on the Order.
6.2 Glow shall invoice the Customer as set out in the Order. If the Order does not set out the invoicing schedule, Glow shall invoice the Customer in full upon commencement of the SDPs.
6.3 All invoices are payable in full within 30 days from the date an invoice is received. Neither failure to acknowledge receipt of an invoice or incorrect billing contact information are acceptable grounds for late payment.
6.4 All fees are subject to the addition of applicable sales tax or service tax, which the Customer shall pay to Glow at the prevailing rate.
6.5 The fees are exclusive of all disbursements and other incidental expenses incurred by Glow on behalf of the Customer with the Customer’s prior written approval.
6.6 All amounts due from the Customer under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay Glow such additional amount as will ensure that Glow receives the same total amount that it would have received if no such withholding or deduction had been required.
6.7 Without prejudice to Glow’s other rights, Glow reserves the right to:
6.7.1 charge interest, including compound interest, at the maximum annual rate permitted by law, on any invoice remaining unpaid 30 days from the date the invoice is received; and/or
6.7.2 suspend access to the SDPs in the event that the Customer fails, or in Glow’s reasonable opinion it appears that the Customer is likely to fail, to make payment when due under this Agreement or any other agreement with Glow, until such time as payment is received.
6.8 The Customer will be liable for fees charged by collection agencies for overdue invoices.
7. Intellectual property rights
7.1 “Intellectual Property Rights” means any copyright, invention, database right, trade mark, patent, design right and any other industrial, commercial or intellectual property right existing in any jurisdiction, whether registered or not, and all applications and rights to apply for registration of any such rights.
7.2 As between the parties, any intellectual property rights existing at the date of each Order vest in the party owning those Intellectual Property Rights.
7.3 Glow will retain ownership of all Intellectual Property Rights in the Glow Content comprising:
7.3.1 the database of content built, operated and maintained by Glow (“Glow Database”) containing data gathered from surveys and interviews groups maintained by Glow comprising questions put to its users and their replies (the “Respondent Data”);
7.3.2 all other data and materials of whatsoever nature in the Glow Database from time to time, including but not limited to, summary charts, tables, datasets, data analysis and reports;
7.3.3 any software made available by Glow to the Customer for the purpose of accessing SDPs (“Glow Platform”).
7.3.4 Glow grants to the Customer a non-exclusive, irrevocable, royalty-free non-sub licensable licence to use the Glow Content only to the extent that such use is necessary to use the SDPs as permitted under this Agreement.
8. Confidential information
8.1 “Confidential Information” means the information (tangible or intangible) exchanged between the parties, which is
(i) marked “confidential” or “proprietary” at the time of disclosure by the disclosing party; or
(ii) by its nature or content or the circumstances surrounding disclosure is reasonably distinguishable as confidential or proprietary by the receiving party. Confidential Information includes, without limitation, information regarding the disclosing party’s technology, designs, techniques, research, know-how, trade secrets, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practises, employee information, and other confidential or proprietary business and technical information.
8.2 Subject to clause 5.2, each of Glow and the Customer will keep confidential and will not disclose to any third party (other than its legal and financial advisors) any Confidential Information relating to the business and/or operations of the other party that is disclosed by or on behalf of the other party. This obligation will not apply to any information that is trivial, was known to the receiving party before disclosure, is in the public domain other than through breach of this clause or is required to be disclosed by a court, regulator or other competent authority or body.
9. Data protection
9.1 Each party agrees to comply with applicable data protection laws in relation to the SDPs. In the event that a party (as data controller) requires the other party to process its personal data (as data processor) the parties will execute a separate written contract which specifies the nature of the processing due to take place and each party’s responsibilities and obligations.
9.2 Unless otherwise specified in the Order, SDPs do not contain personal data and the Customer undertakes that it will not (nor attempt), alone or using a third party, to re-identify any individuals or otherwise create personal data using those materials (whether in combination with other data or otherwise).
10. Exclusions and limitations of liability
10.1 Nothing in this Agreement will operate to exclude or limit either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation; or either party’s liability under any indemnity it gives under this Agreement; or any other liability that cannot be limited or excluded by law.
10.2 Subject to clause 10.1, neither party shall be liable for any loss of: data; reputation; goodwill or opportunity; loss of or failure to realise expected profit, revenue, savings or any other form of pure economic loss, whether any such loss is direct or indirect; or form of indirect, special, incidental, punitive or consequential loss or damages and, in each case, however arising.
10.3 Subject to clauses 10.1 and 10.2, Glow’s maximum aggregate liability to the Customer for all claims (whether arising in contract, tort, breach of statutory duty or otherwise) under an Order or in relation to any SDPs, whether in respect of a single event, series of connected events or of unconnected events, shall not exceed an amount equal to one hundred per cent (100%) of the total amount of the fees paid by the Customer under the relevant Order in the year in which the claim is made.
10.4 Glow does not assure any particular substantive results of its research in advance and makes no warranty, express or implied, as to the SDPs or the results provided, or the suitability of the SDPs for the Customer’s purposes.
10.5 Glow accepts no liability for any loss suffered by the Customer or by any third party (including but not limited to any client or customer of the Customer) as a direct or indirect result of its use of any of data or of making any business decision, or refraining from making any such decision, based wholly or partly on the data, expression of opinion, statement or other information provided to the Customer as part of the SDPs or arising from the interpretation by the Customer or any third party of reports or of other data from Glow, and the Customer shall indemnify Glow accordingly.
10.6 The Customer shall also indemnify Glow and its officers, directors, employees, contractors (“Glow Team”) against any loss, damage or other liability (including costs and expenses) suffered as a result of any claim or proceedings arising in connection with the use by, or on behalf of the Customer, of Glow Content for the purposes of: (i) market performance claims; (ii) investment offerings; (iii) all litigation, including all costs connected with Glow serving as an expert witness, where legally required by operation of law.
10.7 All warranties, guarantees, conditions or representations relating to the SDPs other than those expressly set out in these Terms (if any) are excluded to the fullest extent permitted by law, whether express, implied, oral or written.
10.8 Unless required by operation of law, the Customer agrees not to call on the Glow Team, or group companies, as a witness in any legal proceedings.
11.1 Unless mutually agreed in writing between the Customer and Glow, any Subscription Data Product Agreement will renew automatically for the same term length as stated in the Agreement unless:
11.1.1 the Customer gives Glow at least thirty (30) days notice of its intention to terminate at the end of the current term
11.1.2 Glow has proposed a change to the Subscription Data Product terms and conditions that was not communicated to the Customer in writing at least sixty (60) days prior to the end of the current term as per clause 13.4
12. Termination and effect of termination
12.1 Without affecting any other right or remedy available to it, Glow may terminate this Agreement with immediate effect by giving written notice to the Customer if:
12.1.1 the Customer fails to pay any sum due under this Agreement when it falls due;
12.1.2 in Glow’s reasonable opinion, association with the Customer is likely to bring Glow into disrepute; or
12.1.3 the Customer is acquired by, or itself acquires, a competitor or competing business, of Glow
12.2 Without affecting any other right or remedy available to it, the Customer may terminate this Agreement with immediate effect by giving written notice to Glow if:
12.2.1 Glow mandates an immediate change to the Subscription Data Products terms and conditions deemed unacceptable to the Customer as per clause 13.3
12.3 Subject to clause 12.1 and 12.2, either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
12.3.1 commits any material breach of any of this Agreement which cannot be remedied or commits any material breach of this Agreement which can be remedied and fails to remedy that breach within thirty (30) days after notice from the other party giving full particulars of the breach and requiring it to be remedied; or
12.3.2 enters into liquidation, whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation); or
12.3.3 compounds with or makes any arrangements with its creditors or makes a general assignment for the benefit of its creditors, or has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of its undertaking or assets; or
12.3.4 ceases or threatens to cease to carry on its business, or makes any material change in its business, or if it suffers any analogous process in any jurisdiction.
12.4 The Customer is not entitled to terminate the SDPs for convenience within the Subscription Term stated on the Order.
12.5 The Customer and Authorised Users shall use all reasonable endeavours to delete all stored copies of materials immediately following termination or expiry of this Agreement. This will not prevent any continued use of any New Materials or Limited Extracts which were compiled and approved before termination of this Agreement.
12.6 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement, which existed at or before the date of termination.
13. Changes to Subscription Data Products Terms and Conditions
13.1 Glow may at any time change the terms and conditions related to its Subscription Data Products (including, but not limited to price, agreement term and specific deliverables).
13.2 Such changes will not take effect until the renewal of a Customer’s contract and shall be communicated to the Customer in writing at least sixty (60) days prior to the end of the current term unless:
13.2.1 Glow, at its sole discretion, determines that an immediate change to the Subscription Data Products terms and conditions is necessary
13.2.2 A proposed change is not able to be communicated to the Customer in writing at least sixty (60) days prior to the end of the current term
13.2.3 In the instance where 13.2.1 is triggered, such changes will be communicated in writing to the Customer. If the Customer is not agreeable to these changes and acceptable resolution can not be obtained between the parties, the Customer shall have the right to immediately terminate the Agreement as per clause 12.2 and Glow shall refund an amount equal to the pro-rata value of the terminated service(s) from the date of termination to the end date of the current term
13.2.4 In the instance where 13.2.2 is triggered, Glow shall communicate the proposed change(s) in writing to the Customer at the earliest possible date. If the Customer is not agreeable to these changes taking effect at the renewal of their contract, and acceptable resolution can not be obtained between the parties, the Customer shall have the right to terminate the Agreement at the end of the current term as per clause 11.1.2
14.1 Force majeure: neither party shall be in breach nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (other than the Customer’s obligation to pay fees due) if such delay or failure results from events, circumstances or causes beyond its reasonable control.
14.2 Publicity: Glow and the Customer shall mutually agree the form and content for any relevant press announcement(s) or statement(s) in connection with this Agreement.
14.3 Assignment: the rights and obligations of the Customer may not be transferred to any other person, party or entity without Glow’s prior written consent.
14.4 Glow may at any time assign, subcontract, delegate, otherwise transfer, or deal in any other manner with any or all of its rights and obligations under this Agreement.
14.5 No third party rights: no third party may enforce any provisions of this Agreement.
14.6 Local laws: each party shall comply with locally applicable laws and any requests from legal authorities in relation to this Agreement or any Order. The terms of this Agreement shall apply to the maximum extent permitted by local laws. The invalidity or unenforceability of any part of this Agreement does not entail the invalidity of the entire agreement.
14.7 Authorised signatory: the Customer confirms that the person signing the Order is authorised to sign and bind the Customer.
14.8 Survival: the rights and obligations of the parties under sections titled Confidential Information, Termination and effect of termination, Intellectual Property Rights, Data Protection, Fees and payment, Publication approval service, General and Governing Law and jurisdiction shall survive the expiration or termination of this Agreement.
14.9 Relationship of the parties: The relationship of parties established by this Agreement shall be that of independent contractors and nothing contained in this Agreement shall be construed to constitute the parties as principal and agent, employer and employee, franchisor and franchisee, partners, co-owners or otherwise as participants in a joint venture or common undertaking.
14.10 Non-reliance: The Customer acknowledges that it is not entering into this Agreement in reliance on any statements, representations or promises not expressly included within this Agreement.
14.11 Notices: Notices or any other communications required or permitted under this Agreement shall be given in writing, in English, and delivered by
(i) hand in person to the registered address of a party, or
(ii) e-mail followed by a registered mail (return receipt requested) or international reputable courier delivery addressed to the relevant party and shall then be deemed to have been duly received by the recipient.
15. Governing law and jurisdiction
The governing law and jurisdiction: the governing law and venue for resolution of any dispute arising under this Agreement will be as follows:
|CUSTOMER CONTRACTING ENTITY-|
|APPLICABLE GOVERNING LAW|
|New Zealand||Victoria, Australia|
|Hong Kong||Hong Kong S.A.R|
|Any other country||Victoria, Australia|
|EUROPE, MIDDLE EAST & AFRICA|
|United Kingdom||England and Wales|
|Any other country||England and Wales|
|United States of America||Victoria, Australia|
|Any other country||Victoria, Australia|