Market Trends Terms and Conditions

These Terms and Conditions (“Terms”) govern your access to and use of the Services (as defined below) and documents the obligations of the applicable Mastercard Party (as defined below) and the institution (“Client”) on whose behalf you will access and use the Services. These Terms take effect as of the effective date set forth in the applicable bulletin, agreement, or online/web purchase confirmation issued or displayed by Mastercard pursuant to which the availability of the Services is announced or provided to Client (the “Effective Date”). These Terms constitute Standards under the Mastercard Rules (which may be updated by Mastercard from time to time). Mastercard has the right to revise these Terms at any time by posting the revised Terms. All changes are effective immediately when Mastercard posts them. Client’s continued use of Trends after any changes to these Terms have been posted, shall be deemed Client’s acceptance of those revisions. These Terms are and remain subject to the Mastercard Connect Terms of Use which Client has previously acknowledged and agreed.

1. Services and Deliverables

     1.1 Mastercard will provide Client with access to the Mastercard Market Trends platform (“Trends”). Mastercard may also use the services of third parties (“Mastercard Suppliers”) or its affiliates in providing the Services.

1.2 Trends provides access to additional product and services that may be made available to Client from time to time under the terms of applicable bulletins or agreements (together with Trends, the “Services”).  Additional products and services, as may be updated by Mastercard from time to time, shall include:

Mastercard Start Path

Mastercard Learning Lab

    1.3. The Services are solely a tool for informational purposes and not investment advice. Mastercard is not, and Client agrees that Mastercard is not, providing legal or financial advice in connection with any Services. Mastercard may provide certain proposed materials and make certain recommendations in connection with the Services. Client acknowledges and agrees that the Services, including the recommendations suggested by Mastercard in connection with any Services, do not constitute legal or investment advice and Mastercard does not otherwise warrant that execution of any recommendations or guidelines contained in the Services will result in compliance with applicable laws or will be up to date, complete or accurate. Client is responsible for reviewing and evaluating the appropriateness of the materials and recommendations (as well as any decisions made or actions taken by Client in response thereto) proposed by Mastercard in connection with the Services, against Client’s risk-tolerances and/or other criteria.

   1.4. Client is responsible for: (i) obtaining all consents, information and materials necessary from third parties (other than Mastercard Suppliers and other than Mastercard’s responsibilities) for Mastercard to provide the Services; and (ii) Client’s use of and/or operation of all deliverables as well as its implementation of any advice or recommendations provided in connection with the Services. Client represents and warrants that: (i) its provision of any data, including Personal Data further defined below (“Client Data”) to Mastercard or a Mastercard Supplier, or such party’s receipt of Client Data from the Client or another party, in connection with the Services, and (ii) the use, analysis, and processing of such Client Data by Mastercard (and Mastercard Suppliers) to perform the Services, are permitted under (x) all applicable laws and regulations, and privacy policies or other statement or disclosure to which such Client Data is subject, and (y) the terms of Client’s contracts with its customers, contractors, suppliers or other third parties. 

  1.5. Mastercard represents and warrants that its provision of the Services is permitted under (x) all applicable laws and regulations, and privacy policies or other statement or disclosure, and (y) the terms of Mastercard’s contracts with its customers, contractors, suppliers or other third parties.

1.6.  In-platform purchases.  Client may opt-in into receiving the Services or additional products and services via Trends. By clicking “Accept” and accepting the applicable terms and conditions of such additional products or services, Client agrees to be subject to and bound by the applicable terms and conditions, including any associated charges.  In every case there is an opt-in to receive or purchase additional products or services, the terms and conditions accepted by Client shall be communicated to Client via email confirmation, and Client will have a grace period of fourteen (14) business days to withdraw acceptance of product and services by providing written notice to Mastercard. 

1.7.  Cancellation of In-platform Purchases or Subscriptions. Client agrees and acknowledges that the following terms shall apply in the case of online/web purchases of additional products and services via Trends: (a) Client will have a grace period of fourteen (14) business days to withdraw purchase of additional products and/or services by providing written notice to Mastercard at [email protected] before the end of the grace period; (b) Subscription to each additional product and/or service is on an annual automatic renewal basis; and (c) the automatic subscription renewal can be cancelled by providing written notice to Mastercard at [email protected] at least three months prior to the end of the renewal term.

2. Trends Access

   2.1. Mastercard grants Client a limited, non-sublicenseable, non-exclusive, non-transferable right to permit its authorized users to access Trends for Client’s internal business purposes only. Client will not: (a) use Trends or its outputs either directly or as a service bureau for any third party; (b) sublicense, distribute, transfer, or otherwise make available to any third party (including any contractor, franchisee, or agent) access to or use of Trends without Mastercard’s prior written consent; (c) access or use (or permit the access or use of) Trends in order to: (i) build a similar or competitive product or service (or contract with a third party to do so); or (ii) build a product using similar ideas, features, functions or graphics of Trends; or (iii) copy any features, functions or graphics of or in Trends; or (d) derive specifications from, reverse engineer, reverse compile, modify, disassemble, translate, record, or create derivative works based on Trends.

   2.2. Trends shall only be used by Client with respect to its core business located in the markets contemplated in the applicable bulletin or agreement entered into between Client and Mastercard (such markets, the “Territory”).

   2.3. Client shall limit its authorized users only to employees in the Territory who are bound in writing to maintain the confidentiality of Trends. Client will provide Mastercard the information necessary to enable Mastercard to establish usernames for authorized users. Client will appoint one or more administrative users to manage Client’s user accounts. Client is responsible for: (a) maintaining the confidentiality of all usernames and passwords; and (b) the acts and omissions of any person to whom it provides or permits access to Trends. Mastercard may suspend or terminate access for any user who violates these Terms.

   2.4. Mastercard will provide technical support if a user has access and log-in issues, is unable to perform a task in Trends, receives an error message, or needs guidance on basic Trends functionality.

  2.5. Mastercard will host and retain physical control of Trends and will provide Client’s authorized users with access to use a Platform. Trends is not considered a deliverable and no rights in or related to Trends are deemed granted under these Terms.

  2.6. Client will be solely responsible for any Client Data provided to Mastercard in connection with Trends. Further, Client agrees that the timely provision of access to Trends will be dependent upon Client providing any required Client Data.

  2.7. Mastercard will support Trends through regular maintenance procedures, such as monitoring of servers, review of disk space usage and database fragmentation, addition of commercially available security patches and upgrades, and review of event log files. Mastercard may update Trends from time to time in its sole discretion as part of its ongoing mission to improve Trends.

  2.8. Client acknowledges and agrees that, with respect to its use of Trends, the purchase and installation of appropriate computer and communication equipment and the appropriate operating systems and all connectivity necessary to access and use Trends is at Client’s sole cost. Client shall institute security measures necessary to safeguard any remote access to Trends from unauthorized access by persons other than its authorized users. Client shall notify Mastercard immediately and assist Mastercard in remedying any instance of unauthorized access to, or use of, Trends.

  2.9. As may or may not be addressed by the terms set forth in the applicable bulletin or agreement issued by Mastercard pursuant to which the availability of the Services is announced or provided to Client, user access to the platform may be granted via an invitation email which enables new users without specific customer system administrator approval. 

2.10. Third Party Content and Links to Other Websites.  The Services may contain third party content and links to third party sites that are completely independent of the Services and not owned or controlled by Mastercard (“Third Party Sites”). Links to Third Party Sites are included solely for the convenience of users and do not constitute any approval, endorsement or warranty by Mastercard.  Moreover, Mastercard is not responsible for the content, security, operation, or use of any Third Party Sites or the products or services that may be offered or obtained through them or for the accuracy, completeness, or reliability of any information obtained from a Third Party Site.  When you click on a link to a Third Party Site, you will leave the Services.  Any information you submit after you leave the Services will not be collected or controlled by Mastercard.  It will be subject to the privacy notice or terms of use applicable to the Third Party Site.  It is your responsibility to review those policies before submitted your information to the Third Party Site and you provide your information to Third Party Sites at your own risk.  You expressly relieve MASTERCARD from any and all loss, damages or other liabilities you incur as a result of your ACCESS TO OR use of any THIRD PARTY SITE.

3. Term

   3.1. These Terms shall become effective upon the Effective Date and continue until the earlier of (i) such date specified in the applicable bulletin or agreement, or (ii) when terminated pursuant to these Terms (the “Term”).

   3.2. These Terms may be terminated by either Party (i) in the event that such other Party has materially breached an obligation representation or warranty and fails to cure the breach within thirty (30) business days of receiving written notice of the breach; (ii) as of the date on which proceedings are instituted against a Party seeking relief under any bankruptcy, insolvency or similar law; or (iii) in the event that Mastercard no longer offers or provides Trends. “Party” means either Mastercard or Client, and “Parties” means Client and Mastercard.

   3.3. At any time during the Term, Mastercard may immediately limit, vary, suspend, or terminate these Terms, or Client’s access to the Services  or Trends, without any liability, in the event that: (i) Mastercard determines (in its sole discretion) that doing so is required to comply with applicable laws and regulations, and any changes to such laws and regulations; (ii) Client fails to comply with its obligations under these Terms, (iii) Mastercard determines that it will vary, discontinue or no longer offer the Services (or any part thereof) contemplated under these Terms to any customer in any market, (iv) there is a risk of reputational harm or damage to Mastercard or the Mastercard brand arising out of any of the Services being provided or of any conduct of the Client, or (v) there is any regulatory or government investigation of Client, involving fraud, deceit, privacy violation and/or data misuse that is either imputed to Mastercard or is likely to have an adverse effect on Mastercard.

4. Fees, Payment and Taxes

   4.1. Mastercard’s fees, if any, for the Services are as specified in the applicable agreement, Mastercard bulletin or online/web purchase confirmation (“Fees”). If any Fees are payable, the applicable agreement, Mastercard bulletin or other documentation will set out the means for billing, payment, and other matters related to Fees.

5. License and Use of Services

   5.1. Mastercard hereby grants to Client a perpetual, fully paid-up, non-transferable, non-exclusive license to use the applicable Services, in each case, (y) without the right to resell, assign, transfer or sublicense such Services in any way, and (z) solely for Client’s internal business purposes,relinquishing Mastercard of any liability for Client’s use of such Deliverables.

   5.2. Client retains ownership of Client Data and any Confidential Information it provides to Mastercard. Mastercard shall be free to use for any purpose any ideas, concepts, general skills, know-how or techniques resulting from or acquired or used in the course of or arising out of the performance of the Services. All Services provided by Mastercard to Client pursuant to the Services, as well as all materials, concepts, processes and methodologies employed by Mastercard or a Mastercard Supplier in connection with the Services, are and will remain the sole and exclusive property of Mastercard (or such Mastercard Supplier).

   5.3. Client shall not use the data analytics or insights in the Services in a manner so as to reverse engineer or aid any other party to reverse engineer the data contained in the Services, and shall not remove any identification, copyright or proprietary or other notices from the Services, or any copies thereof. Client shall not use any Deliverable in a manner that would violate any applicable law, regulation, or third party rights.

   5.4. All Mastercard data contained in the Services shall be subject to all relevant laws and regulations for each applicable country, Mastercard’s internal privacy and data analytics guidelines, policies, and contractual obligations. In no event will Mastercard be obligated to supply or share any information or data the sharing of which it determines, in its sole and absolute discretion, would cause it to be in violation of any such laws, regulations, guidelines, policies, or contractual obligations as in effect from time to time. Mastercard reserves the right, in its sole discretion, to apply adjustments in order to achieve conformance with Mastercard’s internal privacy and data analytics guidelines. The Client agrees that it will not take any adverse decision against cardholders based on the metrics which Mastercard provides to the Client.

6. Compliance with Laws; Data.

   6.1. The Parties shall ensure that their respective obligations under these Terms and business activities related thereto are performed in accordance with all applicable laws and regulations, including, but not limited to, all applicable anti-bribery and corruption laws including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and other applicable laws. Client shall not export, directly or indirectly, any Services acquired from Mastercard under these Terms to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.

   6.2. The Parties will comply with: (i) all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality or security of Personal Data, as defined below, including, without limitation: EU General Data Protection Regulation 2016/679 (“GDPR”); the Gramm-Leach-Bliley Act; laws regulating unsolicited email communications; security breach notification laws; laws imposing minimum security requirements; laws requiring the secure disposal of records containing certain Personal Data; and all other similar international, federal, state, provincial, and local requirements, and (ii) the Payment Card Industry Data Security Standards, in each case, to the extent they apply to the Services. Subject to any applicable law, Client agrees that Mastercard may transfer data to any country in which any Mastercard Affiliate does business.

7. Indemnification; Limitation of Liability

   7.1. Each party shall defend, indemnify and hold harmless the other party, and its employees, officers, agents, affiliates, representatives, and contractors from and against any claims, demands, loss, damage or expense (including reasonable attorneys’ fees) relating to or arising solely out of third party claims: (i) relating to such indemnifying party’s acts of gross negligence or willful misconduct in connection with its performance under these Terms, or (ii) in the case of Client, third party claims relating to the use of Services or combination, modification or use of the Services with materials not provided by Mastercard or materials required by Client to be included in the Services.

   7.2. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY LEGAL THEORY, TORT, CONTRACT, OR STRICT LIABILITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, FOR LOSS OF PROFITS, GOODWILL, OR ECONOMIC LOSS, REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT A PARTY’S WAIVER OF ITS RIGHT TO RECEIVE SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES SHALL NOT APPLY IN THE EVENT OF A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS DESCRIBED IN SECTION 9.

   7.3. EXCEPT AS SPECIFICALLY DESCRIBED HEREIN, MASTERCARD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE DELIVERABLES AND WITHOUT LIMITATION, MASTERCARD HEREBY EXCLUDES AND DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, COURSE OF DEALING, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

   7.4. Except with respect to Client’s breach of its payment obligations (if any) and breach of the license in Sections 2.1 and 5.1, the maximum aggregate liability of any Party arising out of or relating to these Terms, whether it arises by statute, contract, tort or otherwise, shall not exceed the greater of (i) amount of the Fees or the value of the Services and Services, or (ii) two-hundred fifty thousand U.S. dollars (US$250,000); provided, however that such limitation shall not apply to the indemnity provided by such Party in Section 7.1.

8. Proprietary Rights.

   8.1. Mastercard retains all right, title, and interest in and to all current and future versions of Trends and the Services (including any algorithms, documentation, data models, and user interfaces therein or related thereto) and any other know-how, processes, techniques, concepts, methodologies, tools, or intellectual property Mastercard uses in performing hereunder, even if provided or developed as a result of performing services related to Trends or the Services and all technology, algorithms, and data models relating thereto. All of the foregoing will be deemed Mastercard Confidential Information. Client’s rights to use the Services are strictly limited to those granted in these Terms, and all rights in the Services not expressly granted to Client are reserved to Mastercard.

   8.2. Client may, from time to time, provide suggestions, comments, feedback or other input to Mastercard with respect to Trends or the Services. Mastercard may freely use such feedback as it sees fit in perpetuity, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise, provided that Client is not identified as the source of such feedback.

   8.3. If Trends is or, in Mastercard’s opinion is, likely to become the subject of any infringement-related claim, Mastercard will use its reasonable efforts to: (a) procure the right for Client to continue to use Trends or (b) replace or modify Trends so that it is no longer subject to a claim, but is functionally equivalent in all material respects. If neither (a) nor (b) is commercially reasonable, Mastercard may terminate these Terms and refund to Client any prepaid but unused fees thereunder. This Section 8.3 states Mastercard’s entire liability, and Client’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party. 

9. Confidentiality.

   9.1. “Confidential Information” means the provisions of these Terms and any information, Services, insights, Client Data, Mastercard Supplier data, reports, data, materials, processes, methodologies and concepts, in whatever form embodied (e.g., oral, written, electronic) owned by Mastercard or Client, including Personal Data and any non-public information about individuals or consumers of Mastercard or Client and/or their Affiliates, no matter how or by what party such information, materials, or concepts were transmitted, where such information is transmitted or collected in the course of the performance of a Party’s obligations under these Terms. “Personal Data” means any information relating to an identified or identifiable individual, regardless of the media in which it is contained.

   9.2. During the Term and for a period of seven (7) years thereafter (except for non-public information about individuals or consumers of Mastercard and/or Client, which shall be maintained in confidence indefinitely), the Party receiving Confidential Information (“Receiving Party”) from the other Party (“Disclosing Party”) shall maintain the Confidential Information in strict confidence and shall: (i) use Confidential Information only as authorized in accordance these Terms; (ii) not copy any Confidential Information except as authorized in accordance with these Terms; (iii) not disclose Confidential Information to any third party except as expressly permitted in writing by the Disclosing Party and then only if such third party has executed a confidentiality, privacy and data protection obligations no less restrictive than those set forth herein; and (iv) limit dissemination of Confidential Information to employees or Mastercard Supplier with a “need to know” and who are subject to confidentiality, privacy and data protection obligations no less restrictive than those set forth herein.

   9.3. Except with respect to Personal Data, Confidential Information shall not include any information which: (i) is already in the public domain at the time of disclosure through a source other than the Receiving Party; (ii) enters the public domain after disclosure through no fault of the Receiving Party; (iii) is already known to the Receiving Party at the time of disclosure (as evidenced by written records); (iv) was independently developed by the Receiving Party without use of or reference to any Confidential Information (as evidenced by written records); or (v) is subsequently disclosed to the Receiving Party by third parties having no obligation of confidentiality to the Disclosing Party.

   9.4. Upon the written request of the Disclosing Party, the Receiving Party shall securely destroy or render unreadable or undecipherable, each and every original and copy in every media of all Confidential Information in the Receiving Party’s possession, custody or control (with certification of destruction). The foregoing shall not apply to the extent information must be retained pursuant to applicable legal or regulatory requirements or for purposes of the Receiving Party’s commercially reasonable disaster recovery procedures, provided such information shall continue to be subject to Section 9.

10. General Terms.

   10.1. Force Majeure. Neither Party shall be liable for loss or damage or be deemed to be in default under these Terms if its failure to perform its obligations results from or is attributable to any act of God, natural disaster, fire, strike, embargo, war, threat of terrorism, insurrection, strike, riot or other cause or circumstance beyond the reasonable control of the Party; provided however that the foregoing shall not excuse any failure to exercise diligence by a Party to minimize the scope, extent, duration and adverse effect of any such delay in performance, on the other Party.

   10.2. Other terms. A failure or delay of either Party to enforce any provision of or exercise any right under these Terms shall not be construed to be a waiver. No waiver by a Party to these Terms shall be effective unless expressly made in a signed writing, which writing may be an e-mail. Mastercard may update these Terms in its discretion from time to time. If any these Terms are held by a court of competent jurisdiction to be unenforceable or invalid in any respect, such unenforceability or invalidity shall not affect any other provision, and these Terms shall then be construed as if such unenforceable or invalid provisions had never been part thereof. All representations and warranties, and all commitments: (i) to indemnify, defend, hold harmless, or (ii) relating to confidentiality, limitations on liability, rights and obligations upon termination, and jurisdiction, and any other provision by its nature that is meant to survive shall survive any termination of these Terms. These Terms shall not be assigned by either Party without the prior written consent of the other Party. Any assignment or delegation made without the appropriate express written approval as required herein shall be null and void. Nothing in these Terms is intended to confer any benefit on any third party (whether referred to herein by name, class, description, or otherwise) or any right to enforce a term of these Terms. Unless otherwise expressly provided herein, any remedies stated herein are non-exclusive. In addition to these remedies, the Parties shall be entitled to pursue any other remedies that they may have at law or in equity. Each Party will obtain the written consent of the other Party prior to issuing any public news release, announcement, advertisement, or any other form of publicity, related to the Parties’ relationship, the Services or these Terms. These Terms and the applicable bulletin evidence the entire agreement and understanding between Mastercard and Client with respect to the transactions contemplated by these Terms and supersedes all prior agreements, representations, statements, negotiations and undertakings between the Parties, whether oral or written, concerning such transactions, except in respect of any fraudulent misrepresentations made by either Party. These Terms and the respective rights and obligations of the Parties shall be governed by the laws of the applicable Governing Law Jurisdiction without reference to its conflict-of-laws or similar provisions that would mandate or permit application of the substantive law of any other jurisdiction. The courts located in the applicable Governing Law Jurisdiction shall have the exclusive jurisdiction over any actions or disputes related to these Terms.

   10.3. Mastercard Party. “Mastercard Party” means the party identified in the table below, based on the applicable Territory and is referred to in these Terms as “Mastercard”. “Governing Law Jurisdiction” means the jurisdiction indicated in the table below which corresponds to the applicable Mastercard Party.