Transport Exchange Group Limited Data Subscription Terms and Conditions of Service

TEG DATA SUBSCRIPTION TERMS & CONDITIONS OF SERVICE
These Data Subscription Terms and Conditions of Service (“Terms”) apply to any Services undertaken by Transport Exchange Group Limited (“TEG”) for you (“Client”) pursuant to an accepted Proposal and use of subscription services thereafter. Acceptance of the Proposal shall be deemed to include acceptance of these T&Cs, which shall not be altered except as set forth below.

1 DEFINITION’S

In these conditions: -
“Affiliates” in relation to a party to this Agreement, a person who is, from time to time, a subsidiary or holding company of that party, or is a subsidiary of that party's holding company, as those terms are defined in section 1159 of the Companies Act 2006.
“Agency” is such agency or agencies as the Client may appoint from time to time to provide Client with services on their behalf and as may be notified by the Client in writing to TEG from time to time.
“Agreement” This Agreement together with the Terms, Proposal and any Appendices and other documents attached to or referred to as forming part of the Agreement.
“Background IPR” means in relation to any TEG (i) patent(s), copyright(s), trademark(s), service mark(s), trade secret(s) and/or proprietary right(s); and (ii) methods and systems it uses to provide the Services, including without limitation, software development (including source code) or programs, models or systems, and analysis, data science, data modelling, and methods of process or questioning, systems of analysis used in TEG’s performance of the Services, whether or not such methodologies or software are patentable or copyrightable.
“Confidential Information” means the Reports and/or all data outputs and all information whether of a technical or business nature, which is disclosed or provided by the party disclosing the information (“Disclosing Party”) to the party receiving such information (“Receiving Party”) during the term of this Agreement which is of a confidential or proprietary nature or which a reasonable person would believe should be treated as such, including but not limited to the Disclosing Party and the Disclosing Party’s client’s information, if applicable, technical information, designs, recipes, plans, programs, methods, systems, formulae, processes, technology, object code, source code, executable code, flow charts, devices, designs, machines, inventions, research or development projects, plans for future project development, financial information, sales practices, business plans, marketing and pricing plans and strategies, customers, suppliers and all other Confidential Information of every kind and character. In addition to the information provided by the Disclosing Party in connection with the Proposal, Confidential Information also shall include analyses, compilations, studies or other documents prepared by the Receiving Party and/or its respective Affiliates and its and their respective directors, officers, employees, advisors and/or agents (including, without limitation, legal advisers and accountants (together herein referred to as “Representatives”) that contain or otherwise reflect such information.
“Electronic Reports” are the Reports delivered via email or uploaded onto Internet portals or TEG-owned platforms.
“Fees” means the fees payable by the Client in respect of the performance of the Services, as set out in the Proposal.
“Force Majeure Event” means shall mean any acts, events, omissions or accidents beyond either of the parties’ reasonable control including but not limited to any of the following; Acts of God, flood, earthquake, windstorm or other natural disasters; war; terrorist attack, civil war, civil commotion or riots; fire, explosion or accidental damage; adverse weather conditions; interruption or failure of utility service, including but not limited to electric power, gas or water; any labour dispute, including but not limited to strikes, industrial action or lockouts and; non-performance by either of the parties suppliers or subcontractors.
“Initial Period” means the minimum period as set out in the Proposal and commencing on the Start Date.
“Intellectual Property” in relation to either party all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography 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 for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Participants” means any TEG customer who has used the TEG-owned platforms and as such has been deemed to universally accept the TEG Terms of Use and the End User Licence Agreement as set out on the TEG website.
“Product Categor(y)(ies)” such field or range of data or insights as the parties agree shall be the subject matter of the Reports, and as further particularised in the Proposal.
“Proposal” is the document provided by TEG to the Client, which sets out the specification of the Services to be delivered by TEG including the Reports.
“Renewal Period” means each successive 12-month period after the Initial Period for which this Agreement is renewed.
“Reports” refers to the TEG Reports. Please see the associated definition.
“Service(s)” are the services specified in the Proposal, including the provision of Reports.
“Special Analysis” additional analysis of the basic data in the Reports.
“Start Date” means the date specified as being so in the Proposal, or if none specified, the earlier of the Client signing this Agreement or instruction by the Client to commence provision of the Services.
“Term” the Initial Period and (if applicable) any Renewal Periods.
“TEG Data” shall have the meaning set out in the Appendix.
“TEG Reports” means the Reports (including the Electronic Reports) being the specific, aggregated, and anonymised data and reports relating to information received from Participants and other organisations to be supplied by TEG to Client pursuant to this Agreement and more particularly described in the Proposal.

2. FORMATION OF THE CONTRACT

2.1 Subject to any variation under clause 15, these Terms are the only terms upon which TEG is prepared to deal with the Client in respect of the provision of the Services and they shall govern the Agreement to the entire exclusion of all other terms and conditions. No terms or conditions endorsed upon, delivered with, or contained in the Client’s acceptance of the Proposal, or acknowledgement or acceptance of Client’s order by TEG, shall form part of the contract and the Client waives any right which it might have to rely on such terms and conditions. Any performance by TEG of the Services will constitute acceptance of these Terms and commencement of the Agreement.

2.2 Unless otherwise expressly stated in writing, the Proposal, including all other quotations and estimates provided to Client by TEG will not constitute an offer, capable of acceptance, but are merely invitations to treat. All quotations in respect of Fees are valid for a maximum period of 30 days starting from the date of the original quotation.

2.3 It is the Client’s sole responsibility to ensure that where any of its employees instruct TEG to provide the Services, that such representative is an authorised representative of Client and unless otherwise instructed in writing by the Client, TEG shall be entitled to rely on the original instruction.

3. THE TERM

3.1 This Agreement shall commence on the Start Date and shall remain in force for the Initial Period, unless terminated earlier in accordance with clause 12. The Term shall automatically be extended for a Renewal Period at the end of the Initial Period and at the end of each Renewal Period, unless a party gives written notice to the other party, not later than six (6) months before the end of the Initial Period or the relevant Renewal Period, to terminate this Agreement.

4. THE SERVICES

4.1 TEG will provide the Client with the Services as set out in the Proposal during the Term in accordance with the terms of this Agreement and in consideration for payment of the Fees.

4.2 Additional services may be provided by TEG to the Client from time to time where mutually agreed, including Special Analysis which will, where possible, be provided on application by the Client at fees to be quoted separately. More frequent reporting, trade sectors analysis and other specific services may also be provided at additional cost, as required (and subject to the terms of this Agreement).

5. THE FEES AND PAYMENT TERMS

5.1 The Fees: Subject to Clause 5.2, the Client shall pay to TEG the Fees until the termination of this Agreement. The Fees are expressed to be net of VAT which shall be paid by the Client at the rate and from time to time in the manner prescribed by law.

5.2 Increase of Fees: Unless otherwise agreed in the Proposal, the Fees will be increased on upon the first anniversary of the Start Date and thereafter at annual intervals. Such increases shall be at a rate equal to the percentage increase of the Retail Price Index (All Items) (the “RPIX”) calculated by the Office for National Statistics or any Government substitution therefore in respect of the preceding six-month period. For this clause the RPIX at each review will be that shown in the issue dated two months prior to the date of increase.

5.3 Payment terms: TEG shall invoice the Fees as contained within the Proposal on or around the Start Date. Each invoice will be due and payable within 14 days following the end of the month in which the invoice is dated. Access to platforms is subject to payment being always received. All sums payable to TEG shall become immediately payable on termination in accordance with clause 12.

6. TEG OBLIGATIONS AND WARRANTIES

6.1 TEG warrants that the Services performed, and Reports delivered pursuant to this Agreement shall:
(a) be provided by applying correct methodological concepts and scientific analysis of the relevant data and in accordance with generally accepted professional industry standards and practices for data use, data analysis and data science; and

(b) materially conform to the specifications set out in the Proposal.

6.2 TEG shall use its reasonable endeavours to deliver the Reports and perform the Services within the agreed timescales, but time shall not be of the essence in that regard.

6.3 TEG reserves the right to make alterations to the contents or layout of the Reports which do not in its reasonable opinion result in any substantial change in the nature of the Service.

6.4 Except as expressly stated in this Agreement, all warranties, conditions, and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.

6.5 Without limiting the effect of clause 6.4, TEG does not warrant that:
(a) the supply of the Reports or use of TEG-owned platforms or the TEG Internet portal will be free from interruption; or
(b) the Reports are accurate, complete, reliable, secure, useful, fit for purpose or timely.

6.6 The Client recognises that figures contained in the Reports do not represent the whole market, but only the part of the market where the Participants transact upon TEG-owned platforms. TEG will use its reasonable endeavours to ensure the accuracy of the Reports, data, analysis, and data science provided, using the techniques and processes referred to in clause 6.1, but does not accept responsibility for any error contained in, or any omission from those data, or any loss, whether direct or consequential arising therefrom. TEG accepts no liability for Client’s interpretation of Reports or of other data furnished to Client by TEG.

7. CLIENT OBLIGATIONS

7.1 The Client shall provide TEG with all necessary cooperation in relation to this Agreement for TEG to provide the Services, comply with all applicable laws and regulations with respect to its activities under this Agreement and carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, TEG may adjust any agreed timetable or delivery timescales as reasonably necessary.

8. DATA PROTECTION AND SECURITY

8.1 For the duration of this Agreement and the extent that any personal data (as defined in the Data Protection Act 1998) is processed by any party, that party shall comply in full of the provisions and obligations imposed on it by the said Act and all subordinate legislation relating thereto, including the eight data protection principles and any analogous legislation in other jurisdictions. For the avoidance of doubt, this shall include taking such steps and implementing such policies and procedures which are necessary to comply with the requirements of the relevant legislation.

8.2 The Client shall implement and maintain the following security procedures in relation to the handling of all Reports:
(a) The Client shall ensure that the TEG Data and Reports are kept secure and shall use the best available security practices and systems applicable to the use of the TEG Data and Reports to prevent and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the TEG Data and the Reports.
(b) If the Client becomes aware of any misuse of any TEG Data or the Reports, or any security breach in connection with this Agreement that could compromise the security or integrity of the TEG Data or the Reports or otherwise adversely affect TEG or if the Client learns or suspects that any Security Feature has been revealed to or obtained by any unauthorised person, the Client shall, at the Client's expense, promptly notify TEG and fully co-operate with TEG to remedy the issue as soon as reasonably practicable.
(c) The Client shall cooperate with TEG's reasonable security investigations.

9. OWNERSHIP OF INTELLECTUAL PROPERTY AND LICENCE

9.1 The Client acknowledges that:
(a) all Intellectual Property Rights in the Background IPR and the Reports are the property of TEG or its licensors.
(b) it shall have no rights in or to the Background IPR or the Reports other than the right to use them in accordance with the express terms of this Agreement; and
(c) TEG or its licensors has or have made and will continue to make substantial investments in the obtaining, verification, selection, coordination, development, presentation, and supply of the Reports.

9.2 Subject to the provisions of clause 11, TEG grants to the Client and its authorised employees a non-exclusive, non-transferable, revocable, licence to use the Reports for its own internal business purposes and reporting to its shareholders during the Term. Unless TEG has given its prior written consent, Client shall not:
(a) allow any third party to access or use the Reports (wholly or in part) in its own products and services; or
(b) disclose, publish, sell, distribute, copy, or reproduce in full or part, the Reports, without the prior express written authorisation from TEG (except for its own internal business purposes, or as otherwise permitted under Clause 11, or the Appendix); or
(c) allow the TEG Reports to come into the possession of anyone, other than (I) an authorised member of staff of the Client or any company or organisation controlled by the Client whose normal duties require such possession, or (II) (subject to clause 9.3 below) an Agency during such Agency providing services to Client solely for Client’s own internal purposes.

9.3 If TEG agrees, the Client may share the TEG Reports with an Agency, the Client shall be responsible for the Agency’s use of the Reports and ensure that prior to transferring the Reports to a Client’s nominated Agency, the Client has first entered into a written agreement with the Agency containing terms substantially like clauses 9 and 11 of this Agreement. The Client shall ensure that any of its Agencies who use the Reports shall within fourteen (14) days of completion of such Agency’s obligations to the Client:
(a) destroy or return to the Client all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Reports.
(b) erase all the Reports from its computer systems or which is stored in electronic form (to the extent possible), and
(c) certify in writing to the Client that it has complied with the requirements of this clause.

10. LIMITATION OF LIABILITY

10.1 Nothing in this Agreement excludes or limits the liability of TEG in respect of; (a) death or personal injury caused by its negligence (including negligence of its employees, agents, or contractors); (b) fraud and/or fraudulent misrepresentation; or (c) liability which may not otherwise be limited or excluded under applicable law. Save for the indemnities under this Agreement, which shall be unlimited, TEG’s entire liability to Client arising out of or in connection with this Agreement whether arising from contract, tort, negligence or otherwise shall be limited in aggregate to an amount equal to the Fees received by TEG from Client for the portion of the Service in question, or if no Fees are payable under this Agreement, to five thousand pounds (£5,000). TEG shall not be liable to Client for any (a) special, indirect, or consequential loss or damage; (b) pure economic loss, costs damages or charges; (c) loss of profits; (d) loss of revenue; (e) loss of contracts; and (f) loss of business and/or goodwill, howsoever it arises out of or in connection with this Agreement.

10.2 No action, regardless of form, arising out of this Agreement may be brought by Client more than two years after the cause of action arose (or when Client should have been reasonably aware of such cause of action) provided that this clause shall not apply to any claim alleging a breach of either party’s confidentiality and proprietary rights in the Services, which shall have the full time period allowed under the laws of England and Wales.

11. CONFIDENTIALITY AND DATA PUBLICATION

11.1 The Receiving Party shall procure that all Confidential Information disclosed to it by the Disclosing Party under this Agreement or Confidential Information which may at any time during the Term come into the Receiving Party’s knowledge, possession or control, shall be kept secret and confidential and shall not be used for any other purposes other than those required or permitted by this Agreement and shall not be disclosed to any third party (unless required by law or after receiving prior written consent by Disclosing Party). Each party shall comply with their respective obligations under clause 11.1 for a period of 5 years from the date of termination of this Agreement for whatever reason.

11.2 The Receiving Party may disclose the Disclosing Party's Confidential Information to its Representatives who need to know such information for the purposes of carrying out the Party’s obligations under this Agreement. The Receiving Party shall ensure that its Representatives to whom it discloses the Disclosing Party's Confidential Information comply with this clause 11 and as may be required by law, court order or any governmental or regulatory authority.

11.3 Confidential Information shall not include any information that:
(a) was publicly known and generally available to the Receiving Party and/or its Representatives prior to the time of disclosure by the Disclosing Party,
(b) becomes publicly known and generally available after disclosure by the Disclosing Party through no action or inaction of the Receiving Party and/or its Representatives in breach of this Agreement,
(c) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided such source is not known by the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing Party or another party with respect to such information, or
(d) is independently developed by the Receiving Party without the use of the Confidential Information, as shown by the Receiving Party's files and records or other evidence in the Receiving Party's possession.

11.4 Client acknowledges that:
(a) TEG Data is only possible through the collecting and compiling of Participants' transactional information.
(b) TEG Reports are only possible through the collecting, compiling and anonymisation of data where such data would show the performance and private transactional data of any other Participant.
(c) the confidential handling of TEG Data by TEG is therefore of prime importance to the functioning of the cooperation between TEG and its customers.

11.5 Client shall only use the TEG Data for its own internal purposes.

11.6 Unless TEG has given its prior written approval, Client may not (a) disclose the TEG Data or TEG Reports, or any information derived therefrom to any other party, except to its Affiliates; or (b) allow the TEG Data or TEG Reports to be stored in any third-party computer systems or otherwise in electronic form. Client shall not use the TEG Data; (a) for the purposes of supporting litigation unless a court order is obtained in relation to the relevant action; (c) for supporting comparative claims for any reason, including (but not limited to) for advertising or other publication purposes; (d) for resale or syndication, (e) for distribution to any media outlet in support of external public relations efforts, including news articles, interviews, press releases and events, (f) in any misleading or illegal manner, or (g) in a manner which would adversely impact upon the reputation or goodwill of TEG. Client shall ensure that each of its Affiliates who access and/or use the Reports comply with the terms of this clause 11. Notwithstanding the foregoing, the Client may publish the Reports in limited circumstances and only in accordance with the provisions set out in the Appendix attached. The provisions of clauses 11.4 to 11.6 and the Appendix shall survive termination of this Agreement perpetually. The Client shall indemnify TEG against all liabilities, costs, expenses, damages, and losses (including but not limited to any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by TEG arising out of or in connection with Client’s or Clients’ Affiliates breach of clauses 11.4 to 11.6.

12. TERMINATION AND SUSPENSION

12.1 Without affecting any of its rights or remedies, either party to this Agreement may terminate this Agreement with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or any of the events set out in clause 12.2 occur.

12.2 The following events constitute rights of termination for a party under clause 12.1 (a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or (b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); or (e) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; or (f) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or (g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or (h) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(a) to (h) (inclusive); or (i) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

12.3 TEG may terminate this Agreement if for any reason any number of Participants cease to transact upon TEG-owned platforms, rendering the Services impossible or impracticable. In such event, TEG shall terminate this Agreement by giving Client notice in writing specifying the date of termination.

13. SUBCONTRACTORS

13.1 Client acknowledges and agrees that TEG may subcontract one or more portions of the execution of the Services to be performed hereunder, to its Affiliates or to a third party or third parties, without the prior advance written notice to, or consent from, Client. TEG shall use reasonable efforts to ensure that the quality of Services and Deliverables supplied by any subcontractor is substantially equal to those TEG would normally provide or supply and will otherwise materially conform to the terms of this Agreement. TEG shall be responsible for the performance of any Services by such Affiliates or other third parties and solely responsible for all payments due to such third party.

14. FORCE MAJEURE

14.1 Where TEG is delayed or prevented from performing its obligations under this Agreement by a Force Majeure Event, TEG shall notify Client as soon as reasonably possible with details of the Force Majeure Event, its effect on TEG’s obligations and its estimated duration. TEG shall use its reasonable endeavours to mitigate the effect of the Force Majeure Event upon the performance of its obligations under this Agreement. If the Force Majeure Event or circumstances prevent TEG from performing any of its obligations under this Agreement for a period of more than forty-five (45) days, Client may terminate this Agreement by giving TEG thirty (30) days written notice and upon expiry of the notice period, this Agreement will terminate.

15. MISCELLANEOUS

15.1 Variation - No variation of this Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of its parties. Waiver - No failure or delay by a party to exercise any right or remedy provided 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 right or remedy. Severance - If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable, and legal if some part of it were deleted, the parties to the Agreement shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid, and enforceable, and, to the greatest extent possible, achieves such parties' original commercial intention. Entire Agreement - This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements, and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement. Assignment – Neither party shall, without the prior written consent of the other (not to be unreasonably withheld or delayed) assign or transfer, all or any of its rights or obligations under this Agreement, save that either party may assign, novate or transfer to any of its respective Affiliates, or successor in business, provided that such Affiliate or successor agrees in writing to be bound by all terms and condi¬tions of this Agreement. Notices - A notice given to a party under or in connection with this Agreement shall be in writing. Third Party Rights - A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. Governing law and jurisdiction - 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 by, and construed in accordance with, the law of England and Wales. The parties to this Agreement irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

THE APPENDIX - DATA PUBLICATION

DEFINITIONS

TEG Data means all data produced and owned by TEG during its business (including for the avoidance of doubt the Reports and any data derived from the Reports (the research results and any key data).
Publication Request means a request from the Client to publish TEG Data or TEG Reports. Each request shall set out the TEG Data that the Client wishes to publish and provide a reasonable level of detail of the proposed publication.

DATA PUBLICATION

The Client may only publish TEG Data upon receipt of written approval from TEG prior to publication.
Upon receipt of written approval from TEG, the Client may only publish TEG Data when it is the sole data source as per clause 11.6 of the Terms & Conditions
TEG Data may not be quoted in statements regarding competitor performance. This includes but is not limited to references such as ‘market leader’ or ‘number 1’, which directly or indirectly refer to the position of competitors.
TEG requires a minimum of twenty days to process Publication Requests.