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This Platform Subscription Agreement (this “Agreement”), effective as of the Product Order date or the date that Customer first receives access to the Platform (the “Effective Date”), is by and between Datassential, Inc., with offices located at 18 S. Michigan, 9th Floor, Chicago, IL, 60603 (“Provider”), and the entity that Provider is providing or selling products to pursuant to a Product Order (“Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The specific products ordered by Customer are identified in separate product order forms (a “Product Order”) which are incorporated by reference into this Agreement.
3.1. Permitted User: A “Permitted User” is an individual who is an employee, contractor, or agent of Customer and who has been designated by Customer to Provider as a user of the Platform. Customer shall ensure Permitted Users comply with this Agreement and shall be responsible for a Permitted User’s breach of this Agreement. If a Permitted User ceases to meet the foregoing qualifications, Customer shall immediately notify Provider, and such Permitted User’s access shall be terminated or reassigned. Provider shall provide Customer with the ability to assign each Permitted User with a username and other information necessary to access the Platform. Customer may change the names of Permitted Users over time in order to accommodate departure of employees, contractors, or agents and/or changes of job functions.
3.2. Permitted Use: Subject to the terms of this Agreement and solely for Customer’s internal business purposes, during the term of this Agreement, Permitted Users may access and use the Platform: (a) to view the information in the Database; and (b) to download and print selected information from the Database that Provider, in its sole discretion, makes available for download (“Reports”).
3.3. Reports: Subject to and conditioned on Customer’s payment of Subscription Fees and compliance with this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Reports during the Term, in all cases solely for: (a) Customer’s internal business purposes; (b) to use information contained in a Report for Customer’s marketing materials provided that Customer does not reproduce a Report in its entirety in Customer’s marketing materials; or (c) for any other purpose that Provider consents to in writing. For the avoidance of doubt, neither Customer not its Permitted Users may publish or make public the entirety of a Report. Except as expressly provided herein, Customer may only share a Report or portions of a Report with Permitted Users and Customer’s consultants that are under confidentiality obligations similar to those contained in this Agreement provided that the consultant is not a direct competitor of Provider.
3.4. Prohibited Use: Customer shall not use the Platform or any Report for any purposes beyond the scope of the access granted in this Agreement. In no event shall Customer: (a) access or use the Platform or any Report if it is a direct or indirect competitor of Provider; (b) provide any portion of the Platform or any Report to a direct or indirect competitor of Provider; (c) allow anyone other than a Permitted User to access or use any portion of the Platform; (d) distribute, sublicense, transfer, sell, offer for sale, or disclose any portion of the Platform or any Report to any third party; (e) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or any Report; (f) use any portion of the Platform or any Report in a manner that would violate any third party’s intellectual property rights or U.S., international, state, or local law or regulation that may be applicable; (g) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (h) remove any proprietary notices from the Platform or any Report; (i) attempt to test, scan, probe, or hack the Platform or any underlying software, servers, or networks or breach the security, authentication, or encryption measures; (j) attempt to interfere with the Platform by overloading, flooding, or causing a denial of service to Customer or third parties; (k) use or attempt to use any engine, software, tool, agent, or other device or apparatus, method, or mechanism (including without limitation browsers, spiders, robots, or intelligent agents) to scrape or collect data from the Platform through manual or automated means, including in any manner inconsistent with the use of a single Permitted User.
3.5. Suspension: Notwithstanding anything to the contrary in this Agreement, Provider may suspend Customer’s and any Permitted User’s access to any portion or all of the Platform if Provider reasonably determines that (a) there is a threat or attack on any of the Platform; (b) Customer’s or any Permitted User’s use of the Platform disrupts or poses a security risk to Provider or to any other customer or vendor of Provider; (c) Customer, or any Permitted User, breaches this Agreement; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) Provider’s provision of the Platform to Customer or any Permitted User is prohibited by applicable law. Provider shall use commercially reasonable efforts to provide written notice of any suspension. Provider shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Permitted User may incur as a result of a suspension. Customer shall continue to be responsible for Subscription Fees for any such interrupted or suspended period.
4. Customer’s Obligations:
4.1. Customer agrees to access and use the Platform and Reports and the information therein solely during the term of this Agreement, in accordance with the terms and conditions of this Agreement and in compliance with all laws and regulations that may be applicable. Customer shall submit to Provider, in writing, the names, work email addresses and telephone numbers of its Permitted Users before such Permitted Users access the Platform.
4.2. Customer is responsible for obtaining all hardware, software and other equipment or connections necessary for its Permitted Users to access and use the Platform, including as it may be modified or changed by Provider. Customer is solely responsible for its and the Permitted Users’ use of the Platform. Customer is responsible for the security of its Permitted Users’ usernames and passwords, and responsible for any use of the Platform through said usernames and passwords. Customer shall take commercially reasonable efforts to prevent unauthorized access to and use of the Platform and Reports and unauthorized disclosure of usernames and passwords, including, without limitation, by notifying Provider when a Permitted User ceases working for Customer. To the extent Customer becomes aware of any unauthorized access to or use of the Platform or any Report, or any unauthorized disclosure or misuse of usernames and passwords assigned to Customer or its Permitted Users, Customer shall promptly notify Provider and cooperate with Provider’s efforts to mitigate any possible damage or further occurrence.
5.1. Customer shall pay Provider the fees as set forth in an applicable Product Order (“Subscription Fees”). Unless otherwise stated in an applicable Product Order, Customer shall pay all Subscription Fees up front—either upon the execution of this Agreement, or upon any renewal date of Product Order, thereafter. Upon renewal of a Product Order, the Subscription Fees shall increase by five percent (5%) of amount paid in the previous year. Customer shall be responsible for any sales or use taxes which may be imposed. Interest shall accrue on any delinquent amounts owed by Customer at the rate of 1.5 percent (1.5%) per month, or the maximum rate permitted by applicable law. Customer agrees to reimburse Provider for all expenses and costs, including, without limitation, collection agency costs and reasonable attorneys’ fees, incurred by Provider to collect unpaid amounts.
5.2. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing Provider’s obligations under this Agreement, including reasonable travel expenses. Any such expenses shall be billed based on the actual expense and such charges will be supported by appropriate documentation.
7.1. This Agreement shall continue in full force and effect commencing on the Effective Date and continuing for the duration of the Product Order unless a Party hereto provides written notice of termination pursuant to the Product Order or this Agreement.
7.2. Customer may terminate this Agreement immediately, in the event of a material breach of this Agreement by Provider that is not remedied within thirty (30) days after Provider’s receipt of Customer’s written notice of such breach. Provider shall have the right, in its sole discretion, to terminate this Agreement, in whole or in part, for any the following: (a) a material breach of this Agreement by Customer that is not remedied within thirty (30) days after Customer’s receipt of Provider’s written notice of such breach; (b) Customer makes an assignment for the benefit of its creditors, the filing by Customer or its creditors of a voluntary or involuntary petition under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or the appointment of a trustee or receiver for Customer or its property which is not discharged within thirty (30) days of such filing; (c) immediately upon Customer’s breach of Sections 3.4 or 4.1; or (d) after providing Customer with sixty (60) days’ notice, Provider ceases delivery of a particular product, in which case Provider will refund a portion of the pre-paid Customer Fee prorated based upon the discontinued product and the remaining period of the Term.
7.3. Upon termination of this Agreement, Customer may no longer access or use any portion of Provider Intellectual Property (defined below) in any manner, and Provider shall have no further obligation to Customer. Within thirty (30) days after the expiration or termination of this Agreement, Customer will permanently delete or destroy all portions of Provider Intellectual Property in its possession, custody or control and, upon request, provide Provider with written confirmation of the same.
16.1. Customer agrees to indemnify, defend and hold Provider, its officers, directors, employees, shareholders, agents, partners, successors and permitted assigns, harmless from and against any and all actual or threatened claims, liabilities, demands, causes of action, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs of suit (collectively “Claims”), arising out of or in connection with Customer’s (including its employees, agents and contractors) breach or alleged breach of any representation, warranty or obligation of this Agreement. Customer’s indemnity obligation is subject to the following conditions: (a) Provider must give Customer prompt written notice of a Claim; (b) Customer must have exclusive control of the defense of the Claim; and (c) Provider must cooperate in the defense of the Claim and provide all information in their possession or control that may be requested by Customer, at Customer’s expense.
16.2. Provider agrees to indemnify, defend and hold Customer, its officers, directors, employees, shareholders, agents, partners, successors and permitted assigns harmless from and against any Claims by third parties that the Platform infringes any third party intellectual property rights enforceable in the United States. Provider’s indemnity obligation is subject to the following conditions: (a) the Claim must not result from the breach of this Agreement by Customer or any Permitted User; (b) Customer must give Provider prompt written notice of a Claim; (c) Provider must have exclusive control of the defense of the Claim; and (d) Customer must cooperate in the defense of the Claim and provide all information in their possession or control that may be requested by Provider, at Provider’s expense. Should Provider’s ability to provide Customer with the Platform be enjoined or otherwise restricted due to a Claim, Provider will, at its option, either procure the right to continue providing the Platform, replace or modify the Platform to make them non-infringing provided the Services remain functionally equivalent, or if neither of the foregoing is reasonably feasible in Provider’s opinion, Provider may terminate this Agreement immediately. This Section 16.2 does not apply to any free trials or Customer’s use of the Platform during a free trial.