Terms and Conditions

1. Definition and Interpretation

• 1.1 In these Conditions the following words shall have the following meanings:

• 1.2 In these Conditions the following rules of interpretation apply:
  • 1.2.1 A reference to a singular item includes the plural and vice versa;
  • 1.2.2 The expression ‘person’ includes any individual, firm, body corporate, unincorporated association, or partnership;
  • 1.2.3 The headings to the clauses are for convenience only and do not affect the construction or interpretation of the Conditions;
  • 1.2.4 References to a statute or statutory provision include, unless the context otherwise requires, a reference to that statute or statutory provision as amended, modified, extended, re-enacted or consolidated together with all statutory instruments made under that statute at any time; and
  • 1.2.5 References to holding company and subsidiary mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006

2. Application of these Conditions

• 2.1 These Conditions apply to and form part of the Contract between the Company and the Client. They supersede any previously issued terms and conditions of purchase or supply.
• 2.2 No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Company otherwise agrees in writing.
• 2.3 No variation of these Conditions or to a Service Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Company.
• 2.4 Each Service Order sent by the Client to the Company shall be an offer to purchase Services subject to these Conditions.
• 2.5 A Service Order may be withdrawn or amended by the Client at any time before acceptance by the Company. If the Company is unable to accept a Service Order, it shall notify the Client as soon as reasonably practicable.
• 2.6 The offer constituted by a Service Order shall remain in effect and be capable of being accepted by the Company for 30 Business Days from the date on which the Client submitted the Service Order, after which time it shall automatically lapse and be withdrawn.
• 2.7 The Company may accept or reject a Service Order at its discretion. A Service Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
  • 2.7.1 the Company’s written acceptance of the Service Order; or
  • 2.7.2 the Company performing the Services or notifying the Client that they are ready to be performed (as the case may be).
• 2.8 Rejection by the Company of a Service Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Client.
• 2.9 The Company may issue Proposals to the Client from time to time. Proposals are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Client.
• 2.10 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.

3. The Company’s Obligations and Responsibilities

• 3.1 The Company warrants that, for a period of 60 Business Days from performance the Services shall:
  • 3.1.1 conform in all material respects to their description in the Service Order and Proposal;
  • 3.1.2 be free from material defects;
  • 3.1.3 be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13; and
  • 3.1.4 in the case of media on which the results of the Services are supplied, be free from defects in material and workmanship and of satisfactory quality within the meaning of the Sale of Goods Act 1979.
• 3.2 The Company warrants that it shall, if applicable to the territory in which the Services are being performed, use reasonable endeavours to:
  • 3.2.1 observe the Market Research Society’s Code of Conduct and the relevant codes of practice relating to Market Research; and
  • 3.2.2 comply with the ESOMAR International code.
• 3.3 The Client warrants to the Company that:
  • 3.3.1 it has provided the Company with all relevant, full and accurate information as to the Client’s business and needs;
  • 3.3.2 it acknowledges and agrees that statements by the Company as to the results of the Services and all surveys, forecasts and recommendations made by the Company are made in good faith on the basis of information given by the Client and otherwise available at that time; and
  • 3.3.3 it acknowledges and agrees that the results and accuracy of the Services depend on factors outside the control of the Company and such statements, forecasts and recommendations shall not be deemed in any way to be undertakings, warranties or contractual conditions.
• 3.4 The Company shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 1, provided that:
  • 3.4.1 the Customer serves a written notice on the Company not later than 5 Business Days from performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from performance in the case of latent defects; and
  • 3.4.2 such notice specifies that some or all of the Services do not comply with clause 1and identifies in sufficient detail the nature and extent of the defects; and
  • 3.4.3 the Customer gives the Company a reasonable opportunity to examine the claim of the defective Services.
• 3.5 The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
• 3.6 Except as set out in this clause 3:
  • 3.6.1 the Company gives no warranties and makes no representations in relation to the Services; and
  • 3.6.2 shall have no liability for their failure to comply with the warranty in clause 1,
  • 3.6.3 and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
• 3.7 The Client shall be entitled to exercise its rights under clause 3 notwithstanding that the Services were not rejected following any initial inspection.
• 3.8 The Services shall be deemed performed on completion of the performance of the Services as specified in the Service Order.

4. The client’s obligations and responsibilities

• 4.1 The Client undertakes to:
  • 4.1.1 On request, provide the Company with complete, accurate and timely information relating to the Services and to carry out any obligations set out in the Proposal or reasonably requested by the Company from time to time pursuant to performance of the Services;
  • 4.1.2 Provide for the Company and its employees access to the Client’s premises (or any third party’s premises) to enable the Company to perform the Services and ensure that such premises offer suitable protection for health and safety purposes and are in compliance with all applicable laws;
  • 4.1.3 Co-operate with the Company in all matters relating to the Services.
• 4.2 The Client agrees that any commercial decisions it makes are not within the scope of the Company’s duty of care and, in taking such decisions, it must take into account the restrictions on the scope of the Services and other factors, commercial and otherwise, to which it and the Client’s other advisers are, or should be, aware from sources other than the Company in performing the Services.
• 4.3 The Client agrees that it shall not (directly or indirectly, for the benefit of itself or any other person), during the term of the Contract and for a period of six months after its expiry or termination for any reason, solicit or hire as an employee or consultant any employee of the Company who is involved with a Project, delivering any Services or the performance of these Conditions.

5. Timetable and Delays

• 5.1 Time of performance of the Services is not of the essence The Company shall use reasonable endeavours to complete the Project on or before the completion date stipulated in the Service Order.
• 5.2 The Company shall not be liable for any delay in or failure of performance caused by:
  • 5.2.1 the Client’s failure to: (i) make available any agreed location for the performance of the Services, (ii) prepare the location as required for performance of the Services or (iii) provide the Company with adequate instructions for performance or otherwise relating to the Services;
  • 5.2.2 Force Majeure.
• 5.3 The Company may perform the Services in instalments. Any delay in performance or defect in an instalment shall not entitle the Client to cancel any other instalment.
• 5.4 If the Company is prevented from or delayed in completing any instalment or phase of the Project as a result of the Client’s failure to comply with its obligations under these Conditions or a Proposal, the Company shall be entitled to:
  • 5.4.1 An extension of time in completing the Project at least equal to the period of such delay caused by the Client (such period to determined by the Company acting reasonably);
  • 5.4.2 Increase the fees to take account of the period of delay caused by the Client (such increase to be determined by the Company acting reasonably).

6. Fees and Expenses

• 6.1 The fees payable by the Client shall be as detailed in the Proposal/Service Order.
• 6.2 Travel expenses, accommodation expenses and general project expenses will be charged at cost to the Client on completion of the Project and/or Services, unless already encompassed within project fees as set-out in the proposal and/or service agreement.
• 6.3 Expenses incurred by the Company in relation to the viewing of facilities, cash incentives, recruitment lists and other data obtained from third parties or any significant specific request or requirement by the Client will be charged for at cost plus a percentage overhead which will be determined from time to time by the Company.
• 6.4 All fees and expenses will be subject to VAT and any other applicable taxes at the time of invoicing.
• 6.5 The Company may, at anytime, increase the fees to take account of:
  • 6.5.1 Any changes in the Retail Price Index; or
  • 6.5.2 Any exchange rate fluctuations; or
  • 6.5.3 A change in the scope of the Services requested by the Client and/or required as a result of the Client’s actions.

7. Terms of Payment

• 7.1 The Company shall invoice the Client in accordance with the Proposal.
• 7.2 All invoices will be in GBP sterling, unless agreed otherwise by the Company.
• 7.3 If no invoicing procedures are set out in the Proposal:
  • 7.3.1 In relation to Projects with a term of 12 weeks or less, the Company shall invoice the Client for 50% of the fees upon commencement of the Project and 50% upon completion of the Project fieldwork; and
  • 7.3.2 In relation to Projects with a term of 12 weeks or more, the Company shall invoice the Client for the fees either quarterly or monthly to be determined by the Company at its sole discretion.
• 7.4 Payment is due in full without deduction or set-off, in cleared funds to the Company within 14 days following the receipt by the Client of an invoice.
• 7.5 Time of payment is of the essence. If the Client fails to pay any amount properly due and payable by it under these Conditions, the Company shall be entitled without prejudice to any other remedy it may have to:
  • 7.5.1 charge the Client interest and other sums due under the Late Payment of Commercial Debts (interest) Act 1998 on the overdue amount from the due date up to the date of actual payment, after as well as before judgement.. Such interest will be calculated for a full year by multiplying the amount owed by the total rate of interest. The daily rate shall then be calculated by dividing the annual interest by 365. The interest due will be the daily rate multiplied by the number of late days; and
  • 7.5.2 suspend performance of the Services.
• 7.6 The Company may at any time, without notice to the Client, set off any liability of the Client to the Company against any liability of the Company to the Client, whether any such liability is present or future, liquidated or unliquidated, under a contract formed pursuant to these Conditions or not and irrespective of the currency of its denomination. If the liabilities to be set off are expressed in different currencies, the Company may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Company of its rights under this clause shall be without prejudice to any other rights or remedies available to it under these Conditions or otherwise.

8. Variation to a project or services

Should the Client request any alterations to the Project or the Services (including, without limitation, changes to project remit / length of questionnaire and additional quotas), the Company shall be entitled to raise invoices for the additional work and shall provide the Client with a new timetable for completion.  Any additional costs will be based on the Company’s timesheet records for the Project and will be charged for at the prevailing rate, plus any additional direct costs and expenses.

9. Term and Termination

• 9.1 The term of each contract formed pursuant to these Conditions will be set out in the relevant Service Order.
• 9.2 Either party may terminate a Contract with a term of over 12 weeks by giving the other party 3 month’s notice in writing.
• 9.3 Either party may terminate a Contract with a term of less than 12 weeks by giving the other party 3 week’s notice in writing.
• 9.4 A Contract may be terminated with immediate effect by either party giving the other written notice at any time:
  • 9.4.1 If the other party is in material breach of any of its obligations under these Conditions and fails to remedy that breach (if capable of remedy) within 30 Business Days after receiving written notice of the breach; or
  • 9.4.2 If the other party is in breach of any of its obligations under these Conditions on more than three occasions during any six month period (even if that party has remedied those breaches on previous occasions); or
  • 9.4.3 If any encumbrancer takes possession of or a receiver, administrative receiver or similar officer is appointed over any of the property or assets of the other party or if the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or has a resolution for its winding-up passed (except for the purpose of amalgamation or reconstruction not involving insolvency where the resulting entity agrees to be bound by or assumes the obligations imposed on the other party) or anything analogous to any of these events under the law of any jurisdiction occurs in relation to the other party or if the other party cease or threatens to cease to carry on business.
• 9.5 The termination or expiry of the Contract (however caused) will not affect any rights and/or liabilities of either party which have accrued before termination or expiry, or any provision of that Contract which expressly or by implication is intended to come into or continue in effect on or after termination or expiry.
• 9.6 In the event of termination by the Client pursuant to Conditions 2 or 9.3 or by the Company pursuant to Condition 9.4, the Company reserves the right to charge the Client all reasonable costs and expenses incurred up to the date of termination by the Company plus 10% of the value of the contract by way of an administration fee.

10. Exclusion of liability

• 10.1 Nothing in this Condition 10 attempts to exclude or limit the liability of the Company for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation or any other liability or loss forbidden by English Law.
• 10.2 Save as set out in these Conditions, any and all other warranties whether oral or written, express or implied by statute, common law, trade custom and industry practice are excluded to the fullest extent possible by English law.
• 10.3 Under no circumstances whatever shall the Company be liable for:-
  • 10.3.1 Losses special to the particular circumstances of the Client;
  • 10.3.2 Indirect or consequential losses;
  • 10.3.3 Business disruption or interruption costs;
  • 10.3.4 Damage to goodwill or reputation;
  • 10.3.5 Loss of profits or contribution;
• 10.4 Each of the sub-conditions in Condition 3 are to be regarded as separate and severable clauses. If any sub-condition shall be or become void or unenforceable in whole or in part, the other provisions shall remain valid and enforceable.
• 10.5 Subject to Condition 1, the aggregate liability of the Company to the Client in connection with or arising from any Contract formed pursuant to these Conditions whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the amount of the fees payable to the Company by the Client in relation to that Contract.

11. Copyright

The Company retains all ownership, copyright and other intellectual property rights in everything developed, designed or created by the Company either before or during the course of the Project and/or the provision of Services, including systems, methodologies, software, know-how and working papers save that, for the avoidance of doubt, any working papers created by the Client or by the Client in conjunction with the Company will be owned by the Client.  The Company retains all ownership, copyright and other intellectual property rights in all reports, written advice or other materials provided by the Company to the Client save that the Company grants the Client a licence to use those materials for the purposes for which they were created.

12. Confidentiality and data protection

• 12.1 Each party shall at all times keep all Confidential Information supplied by the other party confidential and will not disclose any such information to any third party other than in the proper performance of its obligations under the Conditions. Each party agrees that this obligation shall continue in force without limit in point of time.
• 12.2 The restriction imposed by Condition 1 shall not apply to the disclosure of any Confidential Information:
  • 12.2.1 To such extent as is necessary for the purposes contemplated by these Conditions and with the other party’s prior consent; or
  • 12.2.2 As is required by law; or
  • 12.2.3 Where it is public knowledge at the date of disclosure or can be shown by the disclosing party to have been known prior to such disclosure, provided that such disclosure does not constitute a breach of these Conditions.
• 12.3 Each party confirms that it will take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data and comply with any other obligations under the Data Protection Act 1998 (the “DPA”). All terms used in this Condition 3 shall have the same meaning as in the DPA.

13. Retention of Records

The Company will destroy all materials (including, without limitation, questionnaires, audio and visual files) relating to a Project or any Services one year from the date of the completion of a Project and/or the Services unless agreed otherwise in writing between the parties before the due date for destruction.

14. Publicity

The Client agrees that (unless it provides notice stating otherwise to the Company) the Company shall be entitled to publicise its relationship with the Client to third parties (including, without limitation, other clients, the press and industry bodies) and on its website and that the Company shall be entitled to use the Client’s trademarks or logos for these purposes only.

15. Insurance

Both parties shall take out and maintain during the term of any contract formed pursuant to these Conditions suitable insurance policies to cover their liabilities under these Conditions.

16. Resolution of Disputes

• 16.1 Either party may refer any dispute between the parties arising out of or relating to a contract formed pursuant to these Conditions to each party’s respective contract managers for resolution by giving a notice in writing. The contract managers shall negotiate in good faith to resolve such disputes.
• 16.2 If any dispute cannot be resolved by the contract managers under Condition 1 within twenty-one (21) days after it has been referred to them, the dispute must be referred to suitable directors of the Company and the Client (with notice of such escalation being sent to the senior legal representatives of each party as notified to each party in writing from time to time) for resolution and such directors shall negotiate in good faith to resolve such disputes within twenty-one (21) days.
• 16.3 If any dispute cannot be resolved by the directors of the Company and the Client under Condition 2, the Company and the Client must consider whether or not it would be suitable to seek to resolve the matter by mediation with the assistance of a mediator appointed by them or in default of agreement by the Centre for Effective Dispute Resolution (CEDR).
• 16.4 Neither party may commence any court proceedings (except for seeking injunctive relief) in relation to any dispute sooner than twenty-one (21) days following the end of negotiations under Condition 2 or if the matter has been referred to mediation under Condition 16.3 within twenty-one (21) days of such mediation concluding.

17. Force Majeure

• 17.1 The Company shall be under no liability for any failure to perform any of its obligations under the Conditions if and to the extent that the failure is caused by act of God, war, riots, civil commotions, strikes, lock-outs, trade disputes, fires, breakdowns, interruptions of transport, governmental action or restriction, shortages of labour or materials or breakdown of machinery, delay in delivery by the Company’s suppliers or any other cause whatsoever (whether or not similar to the foregoing) outside the control of the Company.
• 17.2 If a force majeure event (as set out in 1) continues for a period of 30 days or more then the Company shall have the option to immediately terminate its Contract with the Client by giving notice in writing and the Client shall pay the Company any costs incurred by the Company in performing the contract up to and including the date of termination.

18. Assignment

• 18.1 The Contract is entered into between the Company and the Client as principals and the Client shall not be entitled to assign the benefit or burden of it or of any interest in it without the prior written consent of the Company.
• 18.2 The Company shall be entitled to sub-contract the whole or part of its obligations under the contract and to assign its interest in the contract and the Company shall notify the Client within a reasonable time period following any such actions.

19. Severability

If these Conditions shall be or become void in whole or in part, the other provisions shall remain valid and enforceable and the void provisions shall, where appropriate, be replaced by other provisions corresponding as closely as possible with the void provisions.

20. Waiver

• 20.1 A failure by the Company to exercise, or a delay in exercising, any right or remedy under the Conditions shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies which the Company may otherwise have and no single or partial exercise of any right or remedy under the Conditions shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
• 20.2 Any waiver by the Company of a breach of any of the terms of the Conditions or of any default under the Conditions shall not be deemed a waiver by the Company of any subsequent breach or default and shall not affect the other terms of the Conditions.

21. Third Party Rights

A person who is not a party to the Conditions (a “third party”) shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to enforce any of these Conditions.  Any right or remedy of a third party which exists or is available apart from the Act is not affected.

22. Law and jurisdiction

The parties agree that any disputes arising or in any way connected with the subject matter of the Conditions (whether of a contractual or tortious nature or otherwise) shall be subject to the laws of England and in the case of proceedings issued against the Company shall be subject to the jurisdiction of the English courts only.