Terms and Conditions - Research Services
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Definitions and Interpretation
1.1 In these Conditions, unless the context otherwise requires, the following expressions have the following meanings:
| “Agreement” | means the agreement for the supply of Services by EL to the Client subject to these Conditions and consisting of the documents set out in Clause 2.2. |
| “Business Day” | means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the United Kingdom; |
| “Client” | the person or firm named in the Proposal; |
| “Commencement Date” | means the date on which provision of the Services shall commence, as set out in sub-Clause 2.3; |
| ‘Conditions” | these terms and conditions as amended from time to time in accordance with Clause 2.4. |
| “Confidential Information” | means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such); |
| “Data Protection Legislation” | all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC), the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the UK GDPR (as defined in the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419)); |
| “Deliverables” | the deliverables set out in the Proposal or as otherwise agreed between the Parties to be produced or provided by EL to the Client as part of the Services; |
| “EL” | Emotional Logic Limited incorporated and registered in England and Wales with company number 06057985 whose registered office is at Studio 18, The Kiln, Hoults Yard, Walker Rd, Newcastle upon Tyne, NE6 1AB, United Kingdom |
| “Fees” | means any and all sums due under this Agreement from the Client to EL, as specified in the Proposal; |
| “Initial Term” | has the meaning given in Clause 2.3; |
| “Intellectual Property Rights” | means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing rights; |
| “Proposal” | means the agreed proposal document issued by EL to the Client in relation to the Services. |
| “Services” | means the services to be provided by EL to the Client in accordance with Clause 2, as described in the Proposal; and |
| ‘Specification” | the specification for the Services set out in the Proposal; |
| “Term” | means the term of the Agreement as set out in Clause 2.3. |
1.2 Unless the context otherwise requires, each reference in these Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 a Clause is a reference to a Clause of these Conditions;
1.2.4 a "Party" or the "Parties" refer to the parties to this Agreement.
1.3 The headings used in these Conditions are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
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Basis of Contract
2.1 These Conditions shall apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate or which are implied by law, trade custom, practice or course of dealing.
2.2 The Agreement shall comprise of the following documents and in the following order of precedence to the extent of any conflict or inconsistency between the same:
2.2.1 the Proposal;
2.2.2 these Conditions.
2.3 The Agreement shall commence on the date set out in the Proposal or (if earlier) the date that EL commences provision of the Services (the “Commencement Date”). Unless terminated earlier in accordance with Clause 10.2, the Agreement shall continue for the fixed term period set out in the Proposal or, if no period is stated, shall continue for a period of twelve (12) months (“Initial Term”) and thereafter, shall continue until terminated in accordance with Clause 10.1 (“Term”).
2.4 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of EL and the Client.
2.5 The Agreement shall not prevent EL from entering into similar agreements with third parties or from independently developing, using, selling or licensing materials or services which are similar to those provided under the Agreement.
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Provision of the Services
3.1 The Client wishes to engage EL to provide the Services and EL agrees to provide the Services in return for the Client paying EL the Fees, subject to the terms of this Agreement.
3.2 With effect from the Commencement Date, EL shall, throughout the Term of this Agreement, provide the Services to the Client.
3.3 EL shall provide the Services using reasonable skill and care. The Client acknowledges and accepts that the Deliverables may:
3.3.1 be created in whole or part using forecasting or predictive models and/or third-party data and are not guaranteed to be error free by EL,
3.3.2 contain data based on estimates derived from samples, and/or
3.3.3 be subject to the limits of statistical errors/rounding up or down.
3.4 EL shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
3.5 EL may, in relation to certain specified matters related to the Services, act on the Client’s behalf. Such matters shall not be set out in this Agreement but shall be agreed between the Parties as they arise from time to time.
3.6 EL shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes. Any changes will be agreed in writing in accordance with Clause 2.4.
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Intellectual Property Rights
4.1 EL shall retain the ownership of any and all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client).
4.2 EL grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables in its business.
4.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in Clause 4.2.
4.4 The Client grants EL a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to EL for the term of the Contract for the purpose of providing the Services to the Client.
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Client’s Obligations
5.1 The Client shall use all reasonable endeavours to provide all pertinent information to EL that is necessary for EL’s provision of the Services.
5.2 The Client may, from time to time, issue reasonable instructions to EL in relation to EL’s provision of the Services. Any such instructions should be compatible with the Specification.
5.3 In the event that EL requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
5.4 If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
5.5 If the nature of the Services requires that EL has access to the Client’s premises or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that EL has access to the same at the times to be agreed between EL and the Client as required.
5.6 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of this Clause 5 shall not be the responsibility or fault of EL.
5.7 The Client shall not disclose the Deliverables publicly in any manner that is likely to harm EL’s reputation of business. In particular, the Client agrees not to use the Deliverables in any manner that could or does exaggerate, distort or misrepresents the findings of or data supplied by EL.
5.8 Any publication, public statement, press release or the like that contain the whole or any part of the Deliverables shall only be accompanied by an acknowledgement that such material is supplied by EL.
5.9 EL shall be entitled to list the Client as its customer or client in marketing/promotional material.
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Fees, Payment and Records
6.1 The Client shall pay the Fees to EL in accordance with the provisions of this Clause 6.
6.2 EL shall invoice the Client for Fees due in accordance with the payment profile (if any) set out in the Proposal or as otherwise agreed between the Parties.
6.3 All payments required to be made pursuant to this Agreement by either Party shall be made within 30 Business Days of the date of the relevant invoice.
6.4 All amounts payable by the Client under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by EL to the Client, the Client, shall, on receipt of a valid VAT invoice from EL, pay EL such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.5 If the Client fails to make a payment due to EL under the Agreement by the due date, then, without limiting EL’s remedies under Clause 10, 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 6.5 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.6 All amounts due under the Agreement 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).
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 7
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Liability, Indemnity and Insurance
7.1 EL shall ensure that it has in place at all times suitable and valid insurance that shall include public liability insurance.
7.2 EL’s total liability for any loss or damage caused as a result of its negligence or breach of this Agreement shall be limited to a maximum of 125% of the Fees payable under this Agreement.
7.3 EL shall not be liable for any loss or damage howsoever arising from or in connection with the Client’s interpretation of the Deliverables.
7.4 Nothing in this Agreement shall limit or exclude EL’s liability for death or personal injury or fraud or fraudulent misrepresentation or any other liability which cannot legally be limited.
7.5 Nothing in this Clause 7 shall limit the Client’s payment obligations under the Agreement.
7.6 Subject to Clause 7.4 and 7.5, this Clause 7.6 sets out the types of loss that are wholly excluded:
7.6.1 loss of profits.
7.6.2 loss of sales or business.
7.6.3 loss of agreements or contracts.
7.6.4 loss of anticipated savings.
7.6.5 loss of use or corruption of software, data or information.
7.6.6 loss of or damage to goodwill; and
7.6.7 indirect or consequential loss.
7.7 Unless the Client notifies EL that it intends to make a claim in respect of an event within the notice period, EL shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
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Confidentiality
8.1 During the course of this Agreement, either party may disclose information to the other party that is confidential. In this case, the receiving party agrees that it shall:
8.1.1 use the Confidential Information only to fulfil its obligations pursuant to this Agreement;
8.1.2 treat all Confidential Information of the disclosing party as confidential;
8.1.3 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, agreed subsidiaries or agreed subcontractors, who need access to such Confidential Information for use in connection with the Services and who are bound by similar confidentiality and non-use obligations; and
8.1.4 comply as soon as practicable 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.
8.2 The provisions of this Clause 8 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
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Force Majeure
9.1 No Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, epidemic, pandemic, public health measures, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
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Termination
10.1 Unless a fixed term period is specified in the Proposal, either Party may terminate this Agreement by giving to the other not less than 30 Business Days’ written notice, to expire on or at any time after the expiry of the Initial Term.
10.2 Either Party may immediately terminate this Agreement by giving written notice to the other Party if:
10.2.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 30 Business Days of the due date for payment;
10.2.2 the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 30 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.2.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.2.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.2.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
10.2.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.2.7 that other Party ceases, or threatens to cease, to carry on business; or
10.2.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 10, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.3 For the purposes of sub-Clause 10.2.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
10.4 The rights to terminate this Agreement given by this Clause 10 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
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Effects of Termination
Upon the termination of this Agreement for any reason:
11.1 any sum owing by either Party to the other under any of the provisions of this Agreement shall become immediately due and payable;
11.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain in full force and effect;
11.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
11.4 subject as provided in this Clause 11 and except in respect of any accrued rights neither Party shall be under any further obligation to the other;
11.5 each Party shall (except to the extent referred to in Clause 7) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information; and
11.6 the Intellectual Property Rights licence granted under Clause 4.2 shall terminate and the Client shall forthwith cease to use, either directly or indirectly, any such Intellectual Property Rights, and shall forthwith return to EL any such material in its possession or control.
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Data Protection
12.1 Both parties agree to comply with the Data Protection Legislation in relation to the processing of personal data in connection with this Agreement.
12.2 EL will process such personal data in accordance with its privacy notices:
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No Waiver
No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
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Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this Agreement into full force and effect.
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Costs
Subject to any provisions to the contrary each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.
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Assignment and Sub-Contracting
16.1 EL shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of this Agreement, be deemed to be an act or omission of EL.
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Time
17.1 The Parties agree that the times and dates referred to in the Proposal for the provision of the Services are for guidance only and are not of the essence of this Agreement.
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Relationship of the Parties
Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
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Non-Solicitation
19.1 Neither Party shall, for the Term of this Agreement and for a period of twelve (12) months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to this Agreement without the express written consent of that Party.
19.2 Neither Party shall, for the term of this Agreement and for a period of twelve (12) months after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
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Third Party Rights
20.1 No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
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Notices
21.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
21.2 Notices shall be deemed to have been duly given:
21.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
21.2.2 when sent, if transmitted e-mail and a successful return receipt is generated; or
21.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
21.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address or e-mail address notified to the other Party.
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Entire Agreement
22.1 This Agreement contains the entire agreement between the Parties with respect to its subject matter.
22.2 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
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Severance
In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
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Dispute Resolution
24.1 The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.
24.2 If negotiations under sub-Clause 24.1 do not resolve the matter within fifteen (15) Business Days of receipt of a written invitation to negotiate (or such other time period as the Parties may agree or if no negotiations take place within such time period, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure (www.cedr.com/about_us/modeldocs/).
24.3 To initiate the mediation, a Party must give notice in writing (“ADR notice”) to the other Party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than twenty (20) Business Days after the date of the ADR notice or such other period as the Parties may agree.
24.4 No Party may commence any court proceedings or arbitration in relation to any dispute until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
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Law and Jurisdiction
25.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England.
25.2 Subject to the provisions of Clause 24, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England.