A. Trendskout provides services utilizing proprietary internal technologies and systems.
B. Trendskout and the entity identified on a mutually executed Order Form as "Customer" desire to establish a business relationship, whereby Trendskout will provide services to Customer, including access to certain of its proprietary systems for data collection, analysis and reporting.
This document, entitled "Subscription Services Agreement - Terms of Service" (the "Terms of Service") together with its exhibits, the Service Levels attached hereto as Exhibit A and the Product Terms attached hereto as Exhibit B, contain certain terms and conditions of agreement (collectively, the "Agreement") between Trendskout BV, a limited liability company incorporated under the laws of Belgium, and Customer. Each of Trendskout and Customer may be referenced throughout this Agreement as a "Party." Capitalized words and phrases used throughout this Agreement, if not otherwise defined on this Cover Page, shall have the meanings set forth or cross-referenced in Glossary of Defined Words and Phrases in Section 13.
This Agreement shall become effective as of the date when authorized representatives of both Parties have executed an Order Form referencing this Agreement (the "Effective Date"). If those authorized representatives execute such Order Form on different dates, the Effective Date shall be the latter date, or the date as of which Trendskout first provides services under this Agreement, whichever occurs first. These Terms of Service shall be interpreted solely in the context of such Order Form and shall not bind either party unless and until an Order Form is executed by the parties, at which time these Terms of Service shall be automatically incorporated by reference into, and made a part of, that Order Form. In no event, however, shall this Agreement be construed as obligating the Company or Customer to enter into any particular Order Form with the other.
Subject to the terms and conditions of this Agreement, Trendskout agrees to sell and provide (as applicable), and Customer agrees to purchase, the Access Rights for Subscription Services and the Professional Services that are identified in each Order Form. Each Order Form shall be binding upon the Parties only after mutual execution, and each mutually executed Order Form shall be considered an integral part of this Agreement. In the event of any conflict between the provisions of this Agreement and the terms of any Order Form or any Statement of Work, the provisions of this Agreement shall supersede and govern, followed in precedence by the Order Form and then the Statement of Work, unless, in each case, the Order Form or Statement of Work, as the case may be, both (i) expressly states that the Parties mutually intend that the Order Form or Statement of Work should govern in that instance and (ii) expressly identifies the provision(s) of this Agreement to be superseded. No pre-printed or "boilerplate" provisions of any purchase order or other document provided by Customer with or as part of any Order Form or Statement of Work shall be binding upon Trendskout .
2.1 Right to Use Subscription Services.
(a) For so long as this Agreement remains in effect, Trendskout agrees to provide access to Subscription Services within the scope of the Access Rights purchased by Customer pursuant to a mutually executed Order Form. Customer acknowledges that the Access Rights purchased under this Agreement may be used only by Customer's Authorized End Users solely for Customer's internal business purposes, and only during the Access Term for which the particular Access Rights have been purchased, as stated in the applicable Order Form.
(b) Customer acknowledges (i) that it is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary for Customer's Authorized End Users to access and use the Subscription Services, and Customer may be unable to access or utilize some or all aspects of the Subscription Services unless such minimum technical specifications are met, and (ii) this Agreement allows only for the purchase of certain rights of access to the Subscription Services, and nothing in this Agreement may be interpreted as an implied license or to require Trendskout to deliver a copy of any software or other product utilized by Trendskout to provide the Subscription Services.
2.2 Authorised End Users.
Customer shall be fully responsible for compliance with this Agreement by, as well as the acts and omissions of, all users who access the Subscription Services under its Authorized End User login credentials, to the full extent as if such end users are Customer's employees or agents acting on Customer's behalf within the scope of their duties. Customer shall not authorize access to or permit use of the Subscription Services or Documentation by persons other than Authorized End Users. Trendskout will permit Customer to register the number of unique sets of login credentials (each consisting of a user name and password) set forth on the applicable Order Form for the Subscription Services and, unless otherwise approved in writing by Trendskout in its sole discretion, Customer will ensure that no more than one Authorized End User will have access to or will use each set of login credentials. Trendskout may, at any time and without any liability to Customer, suspend any end user's access to the Subscription Services in the event Trendskout reasonably believes that such end user has violated any provision of this Agreement.
2.3 Documentation License.
Subject to the terms and conditions of the Agreement, Trendskout hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and license during the Term to reproduce copies of the Documentation solely for use by Customer in connection with the exercise of rights granted in this Agreement. Customer acknowledges that no right is granted to publish, modify, adapt, translate or create derivative works of the Documentation. Customer acknowledges that the Documentation is Trendskout 'sConfidential Information, and hereby agrees to accurately reproduce all proprietary notices, including any copyright notices, trademark notices or confidentiality notices, that are contained within any copies of the Documentation.
To use certain features of the Services, Customer will need to create an account with Trendskout ("Account"), and provide certain information as prompted by the Website. Customer represents and warrants that: (a) all required registration information Customer submits is truthful and accurate; and (b) Customer will maintain the accuracy of such information. Customer's Account shall be terminated at the termination or expiration of this Agreement. Customer is responsible for maintaining the confidentiality of its Account login information and is fully responsible for all activities that occur under its Account. Customer agrees to immediately notify Trendskout of any unauthorized use, or suspected unauthorized use of Customer's Account or any other breach of security. Trendskout will not be liable for any loss or damage arising from Customer's failure to comply with the above requirements.
3.1 Proprietary Rights; No Implied Licenses.
Customer acknowledges that, as between the Parties, Trendskout owns all Intellectual Property Rights and other proprietary interests that are embodied in, or practiced by, the Subscription Services, the Deliverables (as defined below) and the Documentation. To be clear, however, the preceding sentence does not constitute a representation or warranty regarding ownership of any intellectual property rights or other proprietary interests. Except to the extent that the same constitutes or embodies Customer's Confidential Information (including, any Content or Reports), ownership of all work product, developments, inventions, technology or materials provided under any Statement of Work (collectively, the "Deliverables") and any Intellectual Property Rights therein shall be solely owned by Trendskout . Trendskout hereby grants to Customer a non-exclusive, non-transferable and non-sublicenseable right and license during the Term of this Agreement to use the Deliverables solely for its internal business purposes. There are no licenses granted by implication under this Agreement and Trendskout reserves all rights that are not expressly granted.
3.2 General Restrictions on Use.
Customer agrees not to act outside the scope of the rights that are expressly granted by Trendskout in this Agreement. Customer will not (a) make the Services available to anyone other than Customer and its Authorized End Users; (b) sell, resell, license, sublicense, rent, lease or distribute any Services or Reports, or include any Services or Reports or any derivative works thereof in a service bureau or outsourcing offering to any third party; (c) copy, modify, adapt, alter, translate or make derivative works based upon the Subscription Services (other than any copies, modifications or derivative works made solely from the Reports which are created solely for Customer's internal business purposes); (d) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component underlying the Subscription Services is compiled or interpreted save to the extent that Customer cannot be prohibited from so doing under applicable law, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code; (e) use the Subscription Services to conduct or promote any illegal activities; (f) use the Subscription Services to generate unsolicited email advertisements or spam; (g) use the Subscription Services to stalk, harass or harm another individual; (h) use any high volume automatic, electronic or manual process to access, search or harvest information from the Subscription Services (including without limitation robots, spiders or scripts); (i) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; (j) use any trademark, tradename, or brand name of Trendskout in metatags, keywords or hidden text; or (k) use any portion of the Subscription Services or Website in any manner that may give a false or misleading impression, attribution, or statement as to Trendskout , or any third party. Customer agrees to use the Subscription Services only for lawful purposes and in compliance with all applicable laws, rules and regulations issued by governing authorities. Customer acknowledges and agrees that compliance with this paragraph is an essential basis of this Agreement.