THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

Definitions:

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

References to include or including are interpreted as being without limitation.

A reference to writing or written includes email but not fax.

2. Basis of Contract

Each Proposal constitutes an offer by the Company to provide Services to the Client in accordance with these Conditions. Each Proposal will contain a time limit during which it is capable of acceptance by the Client.

The parties acknowledge that each Proposal is to be treated as the Confidential Information of the Company.

A Proposal will only be deemed to be accepted by the Client when the Client either:

• signs the Proposal and returns it to the Company within the time limit referred to at clause 2.1; or
• issues another form of written acceptance of the Proposal to the Company, in a form which is acceptable to the Company

– at which point and on which date the Contract comes into existence (Effective Date).

Any descriptions or illustrations contained in the Company’s advertising, brochures or other marketing collateral are provided for the sole purpose of giving an approximate idea of the Services and do not form part of the Contract or have any contractual force.

These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate. The Client waives any right it might have to rely on any term endorsed upon, delivered with or contained in any document of the Client that is inconsistent with these Conditions.

Any quotation given by the Company does not constitute an offer to enter into a contractual arrangement capable of acceptance by the Client.

If there is any conflict or inconsistency between any of the provisions in these Conditions and the provisions of a Proposal, the provisions of these Conditions prevail.

3. Supply of Services

The Company shall supply the Services to the Client from the Effective Date in accordance with the Contract in all material respects.

Subject to clause 3.3, the Company shall perform the Services with reasonable care and skill in accordance with the generally recognised standards and practices in its industry. The Company shall use reasonable endeavours to adhere to the Standard Code of Conduct adopted by the Market Research Society in relation to all surveys undertaken by it.

The Client understands and accepts that the following matters are outside of the Company’s control and that the Company will not be liable for any damage or loss suffered by the Client arising from them:

• in respect of qualitative research, attendance cannot be guaranteed and a minimum of 6 respondents is deemed to represent a standard group and 4 respondents a mini-group;
• response rates on quantitative surveys;
• all data contained in the Deliverables will be estimates derived from sample surveys carried out in accordance with accepted market research methods and are subject to statistical error.

The Client understands and accepts that where the Deliverables contain predictions of future sales, market share or size, or commentary on consumer or corporate behaviour, these are intended as advice and opinion only and as an aid to the Client. The Company does not give any warranty in respect of such predictions, nor does it accept responsibility for any damage or loss suffered by the Client if it seeks to rely on such advice and/or predictions.

The Company shall perform the Services in a timely and professional manner. The Company shall use reasonable endeavours to meet any performance dates specified in the Contract but these dates are estimates only. Time is not of the essence for the performance of any of the Company’s obligations in the Contract.

In the event of an error caused by the Company in any of the Deliverables, the Company shall take reasonable steps to correct that error at its own expense. The Company shall not be liable for any losses caused to the Client as a result of such error.

The Company may suspend the provision of any Services or modify the specification for any Services if necessary to comply with any applicable law or regulatory requirement. The Company shall notify the Client if it does so.

4. Client Obligations

The Client shall:

• co-operate with the Company in all matters relating to the Services;
• provide the Company with all information and materials as the Company may reasonably require to supply the Services, and ensure that they are accurate and complete in all material respects; and
• comply with all applicable laws and regulations in its performance of the Contract.

Where the Services incorporate any surveys, trials or testing of foodstuffs, the Client warrants that samples provided for testing are:

• safe for human consumption;
• compliant with food safety standards; and
• clearly labelled with any known allergens

– and the Client shall indemnify (on a full indemnity basis) the Company against all claims, proceedings, and liabilities (civil or criminal) of any kind whatsoever which may arise in consequence of the use, demonstration or consumption by any person of any goods or services supplied by the Client (or their servants or agents) for the purposes of the Services, and against all legal costs, fees and expenses incurred by the Company in relation to any such claims, proceedings or liabilities.

To the extent that the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Client or any of its agents or consultants (Client Default) the Company shall not be in breach of the Contract nor liable for any Losses incurred by the Client as a result of its performance being prevented or delayed. The Client shall reimburse the Company on written demand for any Losses incurred as a result of the Client Default.

5. Charges and Payment

In consideration for the provision of the Services, the Client shall pay the Company the Charges in accordance with this clause 5.

All Charges shall be stated and paid in Great British pound sterling (GBP, or £). Any amounts stated in Euros shall carry alongside it the equivalent amount in GBP, at the prevailing spot rate on the date of quotation using www.xe.com, such amount in GBP to be the amount payable under this Contract.

Unless otherwise specified at alternative rates in the Proposal, the Client shall reimburse the Company for:

• any expenses reasonably incurred by Company personnel in the performance of the Services, including:
  • car travel at £0.65 per mile;
  • air travel at economy class rates;
  • hotel accommodation and subsistence costs at £180 per night within the M25 motorway circular; £125 in other parts of the UK; and overseas accommodation and subsistence at a reasonable market rate; and
  • other reasonable ancillary expenses.
• the cost of any materials or services procured by the Company from third parties for the performance of the Services.

The Company shall invoice the Client for the Charges on the schedule set out in the Proposal. Where no schedule is specified, the Company shall invoice the Client for the Charges as to:

• 50% on the Effective Date; and
• 50% on delivery of the Deliverables to the Client.

In the event of any cancellation or postponement of the Services (or any part of them) the Company may invoice the Client the following percentage of the cost attributable to the Services (or part) postponed or cancelled:

– save that if the postponement charges are applied, all postponed Services must be completed within three months of the originally agreed date. If they are not so completed, the postponement shall be treated as a cancellation and a further fee for the balance may be issued by the Company.

Unless otherwise specified in the Proposal, the Company shall invoice the Client monthly in arrears for expenses and third party costs.

The Client shall pay each invoice submitted by the Company within 30 days of the invoice date to a bank account nominated in writing by the Company.

All sums payable by the Client exclude value added tax (VAT). The Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company any additional amounts in respect of VAT as are chargeable on those sums.

Without prejudice to any other right or remedy that the Company may have, if the Client fails to make a payment due to the Company under the Contract by the due date:

• the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.9 will accrue each day at such rate as is specified under the Late Payment of Commercial Debts (Interest) Act 1998 or such successor legislation from time to time in force; and
• the Company may suspend all or part of the Services until payment has been made in full; and
• the Company may withdraw the Client’s entitlement to any credit or discounts or other benefits that apply to the relevant Proposal and reclaim any discounts or other benefits previously provided to the Client in connection with that Proposal.

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. Intellectual Property Rights

Unless agreed in writing by the parties, all IPRs arising out of or in connection with the Services shall be owned by the Company. This includes all IPRs in the Deliverables, excluding any Client Materials contained within them. The Client accepts that the Company may aggregate the IPRs in the Deliverables (subject to such IPRs being anonymised to such a degree that it cannot be identified as deriving from the Deliverables and incapable of being reverse engineering such that it can be so identified) with other data or information collected by the Company for the purpose of demonstrating to other clients of the Company normative and/or modelling outcomes.

Subject to the Company receiving payment of all Charges attributable to the Deliverables, the Company grants to the Client a non-exclusive, royalty-free, non-transferable (except in accordance with clause 11.2), perpetual licence to use, copy and modify the Deliverables for the purpose of receiving and exploiting the Services and Deliverables in its business.

The Client and its licensors retain ownership of all IPRs in the Client Materials. The Client grants the Company a perpetual non-exclusive, royalty-free licence (with the right to grant sublicences) to use, copy and modify the Client Materials during the term of the Contract for the purpose of providing the Services to the Client. The Client warrants and represents that the Company’s use of the Client Materials in the performance of the Services will not infringe the rights of any third party.

The Company shall indemnify the Client against all sums awarded against the Client by a court as a result of any claim that the supply, receipt or use of any of the Deliverables infringes the IPRs of any third party. The Company will not be liable under this indemnity to the extent that the actual or alleged infringement arises from:

• any changes made to the Deliverables without the Company’s prior written consent;
• instructions, information or materials (including Client Materials) provided by the Client for the development of the Deliverables; or
• the use of the Deliverables for a purpose or in a manner not authorised by the Company or the failure of the Client to adhere to the Company’s reasonable instructions for the use of the Deliverables.

The Client shall indemnify the Company against all sums awarded against the Company by a court as a result of any claim that the supply, receipt or use of the Client Materials infringes the IPRs of any third party. The Client shall not be liable under this indemnity to the extent that the actual or alleged infringement arises from the use of the Client Materials for a purpose not authorised by the Client.

This clause 6 states the Client’s exclusive remedy with respect to any infringement of a third party’s IPRs by the Deliverables.

7. Data Protection

Each party shall comply with Data Protection Laws in its processing of personal data under or in connection with the Contract.

If the Company receives any personal data from or on behalf of the Client under or in connection with the Contract, the Client warrants that it has obtained the necessary consents to share that personal data with the Company. The parties acknowledge that they are co-controllers of any personal data received by the Company from the Client.

Subject to clause 7.2, the parties acknowledge that the Company is the controller of any personal data obtained by the Company in carrying out the Services.

8. Limitation of Liability

THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

The following definitions apply in this clause 8:

• default: any act or omission resulting in one party incurring liability to the other; and
• liability: every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.

Nothing in the Contract limits or excludes:

• liability for deliberate default;
• liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977;
• liability for fraud or fraudulent misrepresentation;
• liability for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
• any liability that cannot legally be limited; or
• the Client’s liability for its payment obligations under the Contract.

Subject to clause 8.2, the Company’s total liability shall not exceed 100% of the Charges paid to the Company under the Contract.

Subject to clause 8.2, neither party shall have any liability for:

• loss of profits (including loss of anticipated savings);
• loss of business or business opportunity;
• loss of use or corruption of software, data or information;
• loss of or damage to goodwill; or
• indirect or consequential loss.

Subject to clause 8.2, the Company shall not be liable for any losses incurred by the Client as a result of:

• using draft Deliverables as finished work without the Company’s prior written approval; or
• using the Deliverables for any purpose other than that for which they were intended.

Subject to clause 8.2, all conditions, warranties, representations or other terms that might otherwise be implied into the Contract by statute, common law, course of dealing, trade usage or otherwise are excluded from the Contract.

Unless a party notifies the other party that it intends to make a claim within the notice period, the other party shall have no liability for that claim. The notice period shall start on the day on which the party wishing to make a claim became, or ought reasonably to have become, aware of its having grounds to make a claim and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

9. Termination

Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by notifying the other party if:

• the other party is in material breach of the Contract where:
  • the breach is not capable of remedy; or
  • the breach is capable of remedy and is not remedied within 28 days by the other party after being notified to do so;
• the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 9.1(b);
• the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
• the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

Without affecting any other right or remedy available to it, the Company may suspend the supply of Services if the Client becomes, or the Company reasonably believes that the Client is about to become, subject to any of the events listed in clause 9.1(b), clause 9.1(c) or clause 9.1(d).

10. Consequences of Termination

On termination of the Contract:

• the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, where no invoice has been submitted for Services supplied, the Company may submit an invoice, which shall be payable by the Client immediately on receipt; and
• in the event of a material breach by the Client, the Company shall invoice all the remaining Services under the Proposal not supplied prior to the date of termination, which shall be payable by the Client immediately on receipt; and
• except as otherwise set out in these Conditions, the Client shall promptly destroy or return to the Company (as instructed by the Company) all materials and other property in its possession or control that belong to the Company and were supplied in connection with the Contract.

Termination of the Contract will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract will remain in full force and effect, including clause 6, clause 8, this clause 10, and clause 11.3.

11. General

11.1 Force majeure. The Company will not be liable for any delay or failure in performing any of its obligations for so long as and to the extent that the delay or failure results from events, circumstances or causes beyond its reasonable control.

11.2 Assignment and other dealings. Neither party shall assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party (consent not to be unreasonably withheld or delayed).

11.3 Confidentiality.

Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 11.3(b).

Each party may disclose the other party’s Confidential Information:

• to those of its employees, officers, representatives, contractors, subcontractors or advisers who need to know that information for the purposes of exercising its rights or carrying out its obligations under the Contract (Representatives). Each party shall ensure that its Representatives comply with confidentiality obligations which are substantially equivalent to those set out in this clause 11.3; and
• as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under the Contract.

Subject to sub-clause (e), neither party shall make, nor shall they permit any other person to make, any public announcement, communication or circular concerning this Contract without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

The Company may disclose on its website and in all written marketing and promotional materials that it provides consultancy services to the Client.

11.4 Entire agreement.

The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

11.5 Variation.

Except as set out in these Conditions, no variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).

The Company may vary these Conditions from time-to-time by posting an updated version at [LINK] but, unless otherwise agreed in writing by the parties (or their authorised representatives), no variation will apply to Proposals already in force prior to that variation.

11.6 Waiver. A waiver of any right or remedy is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A failure or delay to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict any further exercise of that or any other right or remedy.

11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract.

11.8 Notices.

Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

• delivered by hand or by pre-paid first-class post or other next working day delivery service to its registered office (if a company) or its principal place of business (in any other case); or
• sent by email to its primary contact for the Contract (or to any substitute address as it may have notified to the other party in accordance with this clause 11.8).

Any notice will be deemed to have been received:

• if delivered by hand, at the time the notice is left at the proper address;
• if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
• if sent by email, at the time of transmission or, if this time falls outside business hours, when business hours resume. In this clause 11.8(c)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.9 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.10 Relationship of the parties. Nothing in these Conditions is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

11.11 Governing law and jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by the law of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales.