"Acceptance" means written, oral or other acceptance by a Client of a Proposal by the Company for the Service.
"Ad-hoc Service" means the bespoke market research services provided by Company (i.e. either one off bespoke services or bespoke continuous tracking services).
"Client" means the party to whom the Company provides the Service.
“Confidential Information” means in respect of the Service all information, data or material of whatsoever nature in any form, which either party, discloses to the other pursuant to this Contract (including the Proposal and anything the receiving party creates which is derived from or based upon the information, data or materials disclosed to it by the disclosing party). It shall not include any information or materials which: (a) is in or enters into the public domain (other than as a result of disclosure by the receiving party or any third party to whom the receiving party disclosed such information); (b) were already in the lawful possession of the receiving party prior to the disclosure by the disclosing party; (c) are subsequently obtained by the receiving party from a third party who is free to disclose them to the receiving party; or (d) are required to be disclosed by law or regulatory authority.
“Continuous Service” means the non-Ad-hoc Service or non-bespoke continuous market research service provided by the Company.
“Contract” means these terms and conditions together with the Proposal, which constitute the entire agreement between the parties. In the event of conflict these terms and conditions prevail over those in the Proposal.
"Deliverables" means survey results, reports, data, summaries, comments, discussion, and/or analysis provided by the Company to Client pursuant to the Contract.
“Intellectual Property Rights” means copyright, database rights, trade marks, designs, patents and/or know how.
“Proposal” means the written proposal and/or quotation (exclusive of VAT or any local sales tax or any other applicable Tax, unless otherwise stated) provided by the Company to the Client, which proposal shall be valid for acceptance for 1 month from the date of issue.
“Service” means the Ad-hoc Service and/or Continuous Service (as the case may be) as specified in the Proposal.
“Tax” means all forms of tax, charge, duty, withholding, deduction, rate, levy and governmental charge (whether national or local) in the nature of tax whatsoever and whenever created, enacted or imposed by any governmental, state, federal, local municipal or other body, together with all related fines, penalties, interest, charges and surcharges, but excluding taxes on the Company’s revenues or profits.
“WPP Group Companies” means WPP plc and any parent undertaking of WPP plc, and any undertaking which, in relation to WPP plc and/or any parent undertaking of WPP plc, is a subsidiary undertaking from time to time.
In these terms and conditions a reference to the singular includes plural and vice versa (unless the context otherwise requires).
1.1 The Client appoints the Company and the Company accepts such appointment to provide the Services and Deliverables upon these terms and conditions, which may only be changed by written agreement of the parties.
Payment of Fees
2.1 For Continuous Services payment of the basic annual fees will be made in four equal instalments on 1 January, 1 April, 1 July, and 1 October in any year. Except that the first payment of such fees will be due on the Acceptance date. The second and subsequent payments will be due on the succeeding relevant quarter days.
2.2 For Ad-hoc Services payment of the fees shall be two-thirds on the Acceptance date and the balance on delivery of the Deliverables. If a Service is to be carried out in stages, with interim Deliverables, final invoices for each stage will be raised on delivery of relevant interim Deliverables.
2.3 All invoices shall be due on the invoice date and shall be subject to payment within 30 days. Any payment after this 30 day period shall entitle Company to charge interest at the rate permitted by statute from the invoice date to the date when the Company receives full payment. Client shall pay the interest promptly on demand.
2.4 The Company shall be entitled to recover reasonable expenses incurred pursuant to the provision of the Services subject to copy receipts being provided to Client upon written request, unless such expenses have been included in the fees.
2.5 For Services carried out wholly or in part outside the UK, if through any currency fluctuation the Sterling equivalent of the cost to the Company of any obligations incurred in respect of overseas work for the Client exceeds the cost shown in the Proposal, the Company shall be entitled to charge for such obligations at the exchange rate which is in operation at the time the payment is made abroad.
2.6 The Company is a Sterling business and its policy is to hedge exposure to foreign currency fluctuations. Any price quoted to The Client in a currency other than Sterling has been converted using an indicative exchange rate. At the point of acceptance, the Company will enter into a forward contract with its bank which will fix the exchange rate and may result in a change to the final price as expressed in a currency other than Sterling. The Client will be asked to confirm its acceptance of this final price as supplied to it in a revised Final Quote.
2.7 If any amount payable to the Company (or its nominee) pursuant to this Contract is subject to Tax, that amount shall be increased so as to ensure that the net amount received by the Company (or its nominee) shall, after Tax, be equal to that which would have been received had the payment and any increased payment not been subject to Tax.
3.1 Either party may terminate this Contract upon 6 months’ notice.
3.2 Either party may terminate this Contract immediately for a material breach by the other which is incapable of remedy or, if capable of remedy, is not remedied within 45 days of written notification being given to the defaulting party.
3.3 For Continuous Services if (a) the number of Client subscribers falls below an acceptable level to the Company or (b) the Company is unable to or finds it impracticable to continue the Service or any part of it, it shall be entitled to terminate this Contract by serving 1 month’s notice at any time. The Company will use its reasonable endeavours to complete any Deliverable in progress and the Company will remain entitled to payment for completion of that Deliverable.
4.1 If, the Client requests changes to the Service the Company reserves the right to revise the Proposal (including, without limitation, the fees).
4.2 If a Service is shortened, delayed, cancelled or terminated early by the Client, the final invoice will include the balance of the fees for providing the Service plus any reasonable costs and expenses incurred by the Company due to the Client’s acts or omissions together with all non-cancellable third party costs the Company has committed to. For example, the Client shall be liable for the costs and expenses incurred by the Company for pre-booked fieldwork, which is delayed, not used or not fully used by reason of the Client’s acts or omissions.
4.3 The Client is responsible for the prompt delivery to the Company of all material owned by or in possession of the Client reasonably required by the Company to provide the Services and Deliverables. If the Client fails to comply with this clause the Client shall be liable for the consequential delays and reasonable additional costs and expenses incurred by the Company in providing the Service.
5.1 To assist the Company in providing the Service the Company shall have the right to subcontract any part of the Service and Deliverables to other WPP Group Companies or, after consultation, to appropriate third parties, agencies or fieldworkers. The Company is only responsible for the quality of the service provided by subcontractors if those subcontractors have been selected and paid for directly by the Company. If the Client designates a specific subcontractor, then the Company shall not be responsible for the accuracy, completeness or quality of the work of that subcontractor.
6.1 The Company warrants that it shall use reasonable skill and care in providing the Service and Deliverables. However, the Client acknowledges and accepts that (a) the response rates to surveys/questionnaires cannot be predicted and are not guaranteed by the Company, (b) all figures contained in Deliverables will be estimates derived from sample surveys and subject to the limits of statistical errors/rounding up or down, and (c) that time is not of the essence. Client hereby acknowledges that it shall be solely responsible for the consequences of any action taken by it based on any document, recommendation or opinion provided by the Company and in no event shall the Company be liable to the Client for any loss or damage whatsoever with respect to any conclusions and/or recommendations made by the Company in relation to the Services or the Deliverables or any reliance thereupon by the Client unless otherwise stated within this Contract or as a matter of law.
6.2 The Company disclaims all other warranties, conditions and/or guarantees either express or implied, including, without limitation, warranties for merchantability, and fitness for a particular purpose.
6.3 The Company agrees to use all reasonable endeavours to comply with the MRS Code of Conduct (www.mrs.org.uk ).
Intellectual Property Rights and Public Statements
7.1 For Continuous Services the Intellectual Property Rights in the Deliverables vest in the Company at all times. The Client will be entitled on the completion of the Service and after payment of all fees due to the Company to use the Deliverables for the bona fide and proper purposes of its business but shall not grant licences to others.
7.2 For Ad-hoc Services the Intellectual Property Rights in the Deliverables vest in the Client subject to payment of all fees due to the Company in respect of such Deliverables, and the Company and WPP Group Companies shall have the right to use without charge, such Deliverables for their own internal use and in connection with any relevant legal dispute.
7.3 Notwithstanding Clause 7.2 above, at all times all know-how and any intellectual property rights of whatsoever nature in and to any techniques, principles and formats and in all proprietary materials, software, programs, macros, algorithms, modules, methodologies and anything else used by or created by the Company in putting together a Proposal or carrying out the Services which are of a generic nature or otherwise not produced exclusively for the Client shall at all times remain the exclusive property of the Company.
7.4 The Client shall not disclose any Deliverable publicly in any manner that is likely to harm the Company’s or WPP Group Companies’ reputation or business. In particular, the Client agrees not to use the Deliverable in any manner that could or does exaggerate, distort or misrepresent the findings of or data supplied by the Company.
7.5 Any public statement, marketing material, press releases or the like that contain the whole or any part of the Deliverables shall only be (a) disclosed upon prior written consent of the Company (which consent shall not be unreasonably withheld), and (b) accompanied by an acknowledgement, such as “Data/figures/information supplied by TNS UK Limited”.
7.6 Each party shall be entitled to list the other as its service provider or client in marketing/promotional material, except for this right the Client shall have no right to use the Company’s name, trade mark, logo, or slogans without the prior written consent of the Company.
8.1 The receiving party agrees that it shall (a) use the Confidential Information only to fulfil its obligations pursuant to this Contract; (b) treat all Confidential Information of the disclosing party as secret and confidential and shall not copy or disclose any such Confidential Information to any third party; (c) not, without the express written consent of the disclosing party, disclose the Confidential Information or any part of it to any person except to the receiving party’s directors, employees, parent company, subsidiaries or agreed subcontractors, who need access to such Confidential Information for use in connection with the Services and who are bound by appropriate confidentiality and non-use obligations; and (d) comply promptly with any written request from the disclosing party to destroy or return any of the disclosing party’s Confidential Information (and all copies, summaries and extracts of such Confidential Information) then in the receiving party’s power or possession. Notwithstanding the foregoing, the receiving party may retain copies of Confidential Information to the extent required in compliance with applicable laws or regulations, provided that such copies shall be kept confidential in accordance with this clause 8.1.
9.1 In the event that the Service and/or Deliverables involve the supply to the other party of individuals’ names and/or other personal data for the purpose of controlling or processing such data, the disclosing party shall prior obtain the necessary consent from the relevant individuals or ensure that it otherwise has the right under the Data Protection Act 1998 or other relevant local data protection laws and regulations to provide such data.
9.2 In connection, with personal data supplied by the Client to the Company, the Company shall:(a) process such data only for the purposes of providing the Services; (b) take such technical and organisational security measures against unauthorised and unlawful processing of, accidental loss of, destruction of or damage to personal data as may be required, having regard to the state of technological development and the cost of any measures, to ensure a level of
security appropriate to the harm that might result from such processing, loss, destruction or damage and the nature of the data to be protected; and (c) answer the Client’s reasonable enquires to enable the Client to monitor the Company’s compliance with this clause. The Client undertakes to comply with the Data Protection Act 1998 and keep personal data supplied by the Company secure and only use such data in accordance with the eight data protection principles set out in the Act. Subject to prior consent from an individual the Company reserves the right to re-contact an individual for participation in further surveys.
Limits and Exclusions of Liability
10.1 Unless otherwise agreed by a letter or fax which is executed by both parties, the Company's liability for any claims, demands, damages, costs (including legal costs) and expenses resulting from any tortious act or omission, and/or breach of the terms and conditions set out in the Contract is strictly limited to the greater of £50,000 and the amount of any fees receivable by the Company in respect of the specific Deliverable which is the subject of the potential claim.
10.2 Neither party shall be liable for the other’s loss of profits, loss of turnover, loss of data, loss of business opportunities, or consequential loss. Liability is not excluded for (a) fraudulent misrepresentations, and/or (b) death or personal injury caused by the negligence of either party. The Company shall not be liable for any loss howsoever arising from or in connection with the Client's interpretation of the Deliverables and/or the consequences of any action taken by the Client based on any Deliverables. The Client acknowledges that the Proposal has been put together on the basis that if the Client requires additional protection or cover, the Client should take out its own insurance.
11.1 Notwithstanding anything to the contrary in this Contract where the Service involves testing or using the Client’s products (including prototypes) and/or third party products supplied by Client, the Client shall indemnify the Company and WPP Group Companies from and against any losses, third party claims, demands, damages, costs, charges, expenses or liabilities (or actions, investigations or other proceedings in respect thereof) which the Company and WPP Group Companies may suffer or incur relating to or arising directly or indirectly out of or in connection with testing or using such products.
12.1 The obligations set out in clauses 2, 4.2, 7, 8, 9, 10, 11, 12.2, 12.5 and 12.6 shall survive termination.
12.2 Any notice given hereunder shall be by post or facsimile. In the case of the notice to the Company, notices shall also be copied to the Legal Department at the address shown below. Email notification is not sufficient.
12.3 The Company shall not be liable for failure to perform its obligations hereunder due to any reason beyond its reasonable control including, without limitation, fires, storms, riots, strikes, disease, shortages of materials, lock-outs, wars, key employees not being available to perform the Services through death, illness or departure from the Company, floods, civil disturbances, terrorism (or material threat of terrorism), Governmental control, restriction or prohibition whether local or national.
12.4 The parties agree that they have not entered into this Contract in reliance upon any statement, representation, covenant, warranty, undertaking or understanding (whether negligently or innocently made) of any person (whether party to this Contract or not) except as expressly set out in this Contract. Nothing in this clause, however, shall exclude any liability on the part of either the Client or the Company for fraud or fraudulent misrepresentation.
12.5 The invalidity or unenforceability of any part of this Contract shall not affect the other provisions of this Contract.
12.6 No term of this Contract shall be enforceable by a third party, save that the WPP Group Companies may enforce clause 11.1.
12.7 English law governs this Contract and in the event of a dispute the parties agree to submit to the jurisdiction of the English courts, which shall be exclusive, save in respect of the enforcement of any judgment, where it shall be non-exclusive.