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MAKE Report Sales Terms and Conditions
Last updated August 2017
YOUR ATTENTION IS SPECIFICALLY DRAWN TO THE LIMITATIONS AND EXCLUSIONS CONTAINED IN SECTIONS 2 AND 3 OF THIS AGREEMENT.
1. Grant of Licence; Subsidiaries and Affiliates.
1.1 MAKE grants you, upon the terms and conditions set forth in this Agreement,
(a) a non-transferable, except as provided herein, and non-exclusive licence to use the Reports; and
(b) a non-transferable, except as provided herein, and non-exclusive licence to:
(i) copy such Reports, and portions of the Reports (including any embedded files contained in the Reports), into new files, whether or not such new files constitute derivative works, and reproduce such new files in storage media of a Permitted Computer (as such term is defined in section 1.3 below)
1.2 Notwithstanding the foregoing, you may not exercise your rights hereunder so as to include information obtained from a Report in, or supply such information for inclusion in, any public document relating to a financial transaction, including a prospectus, circular, memorandum or report, without obtaining MAKE’s prior written consent (which may be subject to payment of a fee for such use of information).
1.3 “Permitted Computer” means any computer, tablet or mobile device that is part of a network administered by you and is under the personal control of one of your employees.
1.4 This Agreement grants no right to sublicence, rent or loan any Report, nor does it grant any right to create a derivative work based upon any Report except as otherwise expressly provided herein.
1.5 Once an order has been placed, it will not be completed until it has been approved by MAKE, and MAKE reserves the right to deny your order. This means that a purchase is not immediate, but will be completed within 24 hours on business days. If an order is placed after 12.00 CET on Fridays or on bank holidays, it will not be handled until the following business day. Should the purchase not be approved by MAKE, the full amount invoiced will be reimbursed.
1.6 Each Report provided to you is proprietary and confidential to MAKE, and you and your employees shall protect each Report as a trade secret. You may not disclose or distribute, or permit to be disclosed or distributed, any Report or any information or data contained in or derived from any Report to any person, except as expressly permitted pursuant to this Agreement. You may not copy or use all or any portion of a Report except as expressly permitted in accordance with this Agreement.
2. Limitations of Warranty.
Except for statements that are expressly identified in this Agreement as representations or warranties, MAKE makes no written, oral, statutory, express or implied warranties, conditions or representations, concerning the Reports or their content. MAKE expressly disclaims any implied warranties, including, without limitation, conditions of satisfactory quality, merchantability or fitness for a particular purpose whether implied by law or otherwise. MAKE does not know the purpose for which you are using the Reports and therefore does not warrant or represent that the Reports or other content are sufficient or appropriate for such purpose or your requirements. MAKE represents that it has used reasonable endeavours to obtain the factual information contained in the Reports from sources deemed by it, in its discretion, to be reliable at the time such information was obtained but MAKE makes no warranties or representations about the accuracy or completeness of such information. MAKE also represents that it has used reasonable skill and care in creating the Reports, but MAKE makes no warranties or representations about the accuracy or completeness of the Reports or about the content of such, including without limitation the interpretations it has made regarding the factual information in the Reports.
3. Limitations of Liability.
3.1 SUBJECT TO SECTION 3.6, UNDER NO CIRCUMSTANCES SHALL MAKE BE LIABLE FOR:
(a) SPECIAL, INCIDENTAL OR PUNITIVE LOSS;
(b) INDIRECT OR CONSEQUENTIAL LOSS; OR
(c) LOSS OF BUSINESS, REVENUE, GOODWILL, PROFITS, CONTRACTS OR ANTICIPATED SAVINGS (WHETHER SUCH LOSS IS DIRECT OR INDIRECT, FORESEEABLE OR OTHERWISE),
IN ANY SUCH CASE ARISING FROM OR IN CONNECTION WITH OR OTHERWISE RELATING TO THE REPORTS OR THIS AGREEMENT WHETHER ON THE BASIS OF NEGLIGENCE, TORT, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE.
3. 2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT BUT SUBJECT TO SECTION 3.6 BELOW, UNDER NO CIRCUMSTANCES SHALL MAKE BE LIABLE FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ON WHATSOEVER BASIS, IN AN AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID PURSUANT TO THIS AGREEMENT.
3.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT BUT SUBJECT TO SECTION 3.6 BELOW, NO ACTION, REGARDLESS OF ITS FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THAT ACTION HAS ACCRUED.
3.4 The Reports, and the information therein, do not include, nor shall they be construed as including, advice, guidance or recommendations from MAKE to take, or not to take, any actions or decisions in relation to any matter, including without limitation relating to investments or the purchase or sale of any securities, shares or other assets of any kind. Should you take any such action or decision based on information in a Report, you do so entirely at your own risk and MAKE shall have no liability whatsoever for any loss, damage, costs or expenses incurred or suffered by you as a result.
3.5 In no event shall you provide access to the Reports, or any part of the Reports, to any third party other than as permitted by Section 1 without obtaining prior written consent from MAKE, which MAKE may withhold in its absolute discretion.
3.6 Notwithstanding anything to the contrary in this Agreement, MAKE does not limit or exclude its liability for fraud or fraudulent misrepresentation, or for death or personal injury arising from its negligence or that of its employees, affiliates, agents or subcontractors, or any liability which cannot by law be restricted or limited.
4. Proprietary Rights.
4.1 At all times, MAKE or its licensor shall retain title to and ownership of the copyright and all other intellectual property rights in the Reports. You shall have no rights in any of the Reports unless expressly granted by this Agreement.
4.2 You shall not alter, obscure, remove, interfere with or add to any of the trade marks, trade names, markings or notices affixed to or contained in the Reports and shall ensure that all those trade marks, trade names, markings and notices are reproduced completely and legibly on all copies of the Reports. If you shall excerpt any portion of a Report or shall utilise any information contained in a Report (which for the avoidance of doubt you are only entitled to do to the extent expressly permitted under this Agreement), you will accompany such excerpt or information with an attribution of such portion of a Report or such information to MAKE. The form of such attribution shall be substantially as follows: “Copyright MAKE.”
4.3 Subject to Section 3.2, MAKE shall defend any and all suits, actions and claims brought against you in respect of, and shall pay all fines, costs, compromises, settlements, awards, judgements and legal and other expenses (including reasonable legal fees) directly resulting from or relating to, any claim that a Report infringes or violates any intellectual property right of any person, except for any claim which arises from breach of this Agreement by you or from a modification to such a Report not made by MAKE. You agree to, and it shall be a condition to the continuation of the obligations of MAKE pursuant to this Section 4.3 that you:
(a) promptly notify MAKE of such alleged infringement or violation;
(b) make no admission as to liability in respect to such claim;
(c) allow the conduct, settlement, negotiation or litigation of such claim to be solely handled by MAKE; and
(d) co-operate reasonably with MAKE, at MAKE’s expense, in the defence of any such claim if requested to do so by MAKE.
In no event shall MAKE be liable for any compromise or settlement entered into without MAKE’s prior consent. Notwithstanding any other provision of this Agreement, if any such infringement shall be alleged MAKE shall have the right, in its discretion, to modify or replace the Report claimed against to avoid the infringement, to procure the right for you to continue using such Report or to terminate your use of the Report and/or this Agreement and refund to you the Fee for such Report already paid by you for such Report. The foregoing shall constitute your sole and exclusive remedy on account of such infringement.
5. Termination of Access to Reports.
5.1 MAKE may terminate this Agreement, immediately, without credit or refund on written notice to you:
(a) if MAKE reasonably shall have concluded that you are in breach of your obligations regarding the use of the Reports under this Agreement or any other product of MAKE;
(b) if you shall have failed to pay any Fee or any accompanying tax or governmental charge (including without limitation any sales or use tax, or any value added tax or any withholding tax or other payment pursuant to Section 6.3) and such failure shall have continued for five days after your receipt of notice of such failure;
(c) if you shall have breached or violated any other material term or condition of this Agreement and such breach or violation shall have continued for thirty days after your receipt of notice of such breach or violation;
(d) if an order for relief shall have been entered against you under, or if you as a debtor shall be otherwise entitled to the benefit of, any statute in any applicable jurisdiction that provides relief for debtors (a “Debtor’s Law”) and you shall continue to receive the protection of such Debtor’s Law for more than 90 days; or if you shall become insolvent, be bankrupt or fail to pay your debts as they become due or within the meaning of any applicable Debtor’s Law; or if you shall cease to carry on your business in the ordinary course; or if you or a substantial part of your assets shall be the subject of the appointment of an administrator or other receiver, manager, liquidator, trustee or similar officer or of an assignment for the benefit of creditors; or if an order is made or entered, or a resolution passed, for your administration, winding-up or dissolution; or if you enter into, propose or become subject to any composition, reorganisation, arrangement or other agreement affecting all or a substantial part of your assets; or if in any other way you or a substantial part of your assets are protected from claims of creditors in any respect; or
(e) notwithstanding any other provision of this Agreement, if you should undergo a change of control (for such purposes, "control" means the right to direct the affairs of a company whether by ownership of shares, by membership of the board of directors, by agreement or otherwise).
(f) If, during any Subscription Term, you should acquire or be acquired by a competitor of MAKE or another entity that may conflict with MAKE's proprietary interests.
5.2 MAKE may terminate this Agreement, immediately on written notice to you if there is a legal or regulatory change which prevents or prohibits MAKE from providing the Reports to you in the way that the Reports are provided at the time of the legal or regulatory change. In such case, MAKE will give you a refund of the Fee paid for the Reports.
5.3 Upon termination of this Agreement pursuant to Section 5.1 or 5.2 or other termination of this Agreement, (a) your licence to access and use the Reports shall terminate forthwith and you shall make no further use of such whatsoever; (b) you shall immediately destroy any copies of any Reports and any document or electronic file that contains data and other information (howsoever recorded and stored) extracted, exported or reproduced from any such Reports held by you (and you shall certify to MAKE in writing signed by an appropriate officer that you have complied with this subclause (b)); and (c) MAKE shall be relieved of any future obligation regarding your access to any Report. Notwithstanding termination of this Agreement the terms of Section 5.3(b) do not require you to destroy any document or electronic file in your possession that contains data or information extracted, exported or reproduced from any Report in accordance with Section 1 of this Agreement, provided the data or information contained in such document or file, together with any data or information contained in any other document or file, does not constitute a substantial portion of any Report.
5.4 The termination of this Agreement shall not affect any rights or obligations of either party which have accrued prior to the date of termination. All provisions which, expressly or by implication, survive the termination of this Agreement shall remain in full force and effect including, without limitation, Sections 1.6, 3, 4.1, 4.2, 4.3, 5.3, 5.4, 6.2, 6.3, 8, 11 and 12.
6. Fees; Taxes.
6.1 You shall pay each Fee promptly upon your receipt of an invoice therefor or in conjunction with your submission of your signed copy of this Agreement as described herein. The invoice may be provided by MAKE, or a subsidiary, affiliate or parent company of MAKE. If MAKE shall elect to provide you any Report prior to your having paid the Fee therefor, such election by MAKE shall not relieve you of your obligation to pay such fee as provided in the preceding sentence. No Fee is refundable for any reason except to the extent otherwise expressly provided herein.
6.2 No Fee includes any sales or use tax, any value added tax or any other tax or other governmental charge payable in connection with your execution and delivery of this Agreement or the exercise of your rights hereunder. You shall pay any such tax or other governmental charge in addition to any Fee, whether or not separately invoiced by MAKE. You shall indemnify and hold harmless MAKE from your failure to make any such payment in a timely manner.
6.3 The Fee for each Report as stated in this Agreement is net of any applicable withholding taxes that may be imposed by governmental authorities of any country from which payment of such Fee may be made. If any such withholding taxes shall be imposed or collected in connection with such Fee such that the amount of such Fee actually received by MAKE shall have been reduced from the amount of the Fee stated in this Agreement, you shall be responsible for paying to MAKE such additional amounts from time to time as shall be necessary to cause MAKE to have received in connection with this Agreement the full amount of the Fee stated herein without regard to the imposition or collection of any such withholding taxes.
7. Entire Agreement; Severability.
This Agreement constitutes the entire agreement, and supersedes any proposals, previous agreements or existing contracts previously executed, with respect to the subject matter hereof. This Agreement shall govern in the case of any inconsistency between it and any purchase order, change order, confirmation or other document issued by either party. If any provision, clause or application of this Agreement to any party or circumstance is held invalid and unenforceable, this shall not affect any other provision, clause or application of this Agreement.
8. Injunctive Relief.
You agree that there can be no adequate remedy at law for any breach of your obligations hereunder regarding the use of the Reports or portions thereof; and that MAKE, in addition to whatever other remedies it might have at law or in equity, shall be deemed to have suffered irreparable harm, and shall be entitled to appropriate equitable relief to prevent the use of any Report in breach of this Agreement or the unauthorised copying or distribution of any Report or portion thereof.
A waiver of any provision of this Agreement or of any breach or default in performing or observing any such provision shall not be effective unless in writing and shall not constitute a continuing waiver unless expressly so provided. That waiver shall not prevent the waiving party from subsequently enforcing any provision of this Agreement not waived, or from acting on any subsequent breach of or default under any such provision.
No amendment or variation of this Agreement shall be effective unless made in writing and signed by you and MAKE.
All notices, consents, approvals or other communications pursuant to this Agreement shall be made in writing and shall be delivered by personal delivery, by prepaid registered or certified mail (return receipt requested), by overnight courier (with receipt for delivery), to the applicable address specified in the cover pages or by confirmed facsimile using the applicable number set out in the cover pages.
12. Governing Law; Jurisdiction.
This Agreement shall be governed by and interpreted in accordance with the laws of England. No action regarding this Agreement, any Report or the relationship between you and MAKE may be commenced in any court except the English courts, which shall have the exclusive jurisdiction over any such action. You and MAKE (i) consent to the personal jurisdiction of the English courts in any such action; (ii) consent to the venue of the English courts in any such action; and (iii) consent to service of process by the means specified herein for giving notice. Notwithstanding the foregoing, nothing in this Agreement shall prevent MAKE from pursuing injunctive relief or similar to enforce the provisions hereof, in any appropriate forum.
You may not assign any of your rights and privileges under this Agreement unless you have first obtained the consent of MAKE to such assignment.
14. Third Party Rights.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
15. Export Control.
15.1 You acknowledge that the provision of the Products may be subject to the export control laws (including trade sanctions) of the United Kingdom, the United States of America, and other relevant jurisdictions (including but not limited to the US Export Administration Regulations and you agree that you will comply with all applicable export control laws of all relevant jurisdictions to the extent that they apply. You further agree that you will not, and you will ensure that your employees will not, access or use the Products so as to cause MAKE to breach any applicable export control laws or sanctions. MAKE reserves the right to restrict your access to the Products to locations which are not subject to sanctions or export controls of the United Kingdom, the United States of America, and other relevant jurisdictions without liability to you. MAKE further reserves the right to suspend provision of Products to you or terminate this Agreement upon written notice, without liability, in the event that you, your affiliates or employees, or the uses to which you put the Products, are or become the target of export control laws and regulations or trade sanctions of the United Kingdom, the United States of America, or any relevant jurisdiction. In the event that MAKE determines that you or any of your affiliates or employees are in breach of this section, MAKE may immediately terminate this Agreement without credit or refund on written notice to you.
15.2 You shall indemnify MAKE and its affiliates from any and all loss, settlement, damage or expense (including reasonable legal fees) and any fine or penalty howsoever suffered or incurred that arise in relation to your breach of the restrictions in Section 15.1 above.
16. Use of Data.
MAKE collects some information from you, including but not limited to your name, address, telephone number, and order history. We securely store your information and will only use it to provide you with the products and services that you requested. We will not share this information with any other party, including our affiliates.
Terms and Conditions of Use
Last updated August 2016
This agreement dictates your use of the MAKE Consulting A/S website. By accessing or using this website, you are acknowledging that you have read and understood the Terms and Conditions, and that you agree, without limitation, to be bound by these. If you do not agree, do not use this site.
Use of the Website
This Website and all its contents including all text, graphics, photographs, logos, trademarks, data compilation, digital downloads (collectively, “Content”) are intended for clients of MAKE, why MAKE grants you a limited, non-transferable license to use the Content and Website. You may only use this Website and Content to make legitimate inquiries and for purposes relating to your business with MAKE. No part of the Website and Content may be copied, reproduced, republished, posted, uploaded, mirrored, framed, publicly displayed, modified, encoded, transmitted, transferred, translated, sold, used to create derivate works, distributed in any way (including “mirroring”) or reverse engineered, disassembled or decompiled without the MAKE’s prior written consent. You may display, download and print information from the Website for your own personal, non-commercial informational purpose, provided that you keep intact all copyright and other intellectual property notices.
MAKE reserves all rights to the Content of the Website. All materials, information and Content presented on the Website are the property of MAKE and its licensors. Without MAKE’s prior, written consent, any use of these materials and Content is strictly prohibited. You may display, download and print information from the Website for your own personal, non-commercial informational purpose, provided that you keep intact all copyright and other intellectual property notices. The use of any data robots, mining or similar data gathering or extraction methods is strictly forbidden. Content on the Website is provided to you for personal use “as is”. Content may not be copied, reproduced, republished, posted, uploaded, mirrored, framed, publicly displayed, modified, sold, licensed, reproduced or in any way exploited. By accessing the Website, you agree to not, in any way, interfere with security related features of the Website.
You may only use the MAKE Website for your own personal and business purposes, and you must not use our Website for any other purposes.
These conditions as well as all related terms and conditions, policies, and agreements including, but not limited to, <a>Webshop Policy</a> and <a>Content Use and Membership Agreement</a> constitute the agreement on the subjects included herein between MAKE and every individual user of MAKE’s services. This agreement cannot be modified or terminated by any party unless done in writing and made available on www.consultmake.com.
If you know of, or suspect, violations of any of MAKE’s terms and conditions, policies, and/or agreements, please alert us at firstname.lastname@example.org.
Last updated August 2016
Why do we collect information about you?
Your personal information may be collected for a number of reasons, none of which includes third-party commercial uses. The information allows us to; 1) handle your membership account and transactions, 2) provide customer services, and 3) analyses of the behaviour of our website and products for internal use.
The types of personal information that we collect:
Depending on your actions when you visit the website we might collect information about you that can be divided into two categories:
1. Information that is related to you as a person
We never actively collect these types of information. However, when you register for our free research feeds or the like, we collect data such as your E-mail, name, phone number etc. in order for us to deliver our services to you. Additionally, when you make a purchase through consultmake.com we will collect your billing information.
Everyone is welcome on www.consultmake.com, but to get the most out of our website, we suggest that you sign up for our feed, which require you to provide us with certain information about you.
2. Non-personal information (via cookies)
A cookie is a small text file that is saved onto your computer or other device in order for our website to recognise it. There is no personal information saved in our cookies and they cannot contain any viruses. Through cookies we get access to information about your journey to, on and from consultmake.com, which makes it possible for us to tailor our website to the needs of our users. Additionally, cookies remember your preferences when you enter the website.
We reserve the right to change this policy at any time. A change will be indicated by the “last updated” date at the top. In the case of major changes users will be notified directly.