Terms and Conditions
Standard Terms and Conditions of Business
In these terms and conditions (the “Conditions”) the following definitions are used:
“Ad-hoc Service” means the bespoke market research services provided by Company (i.e. one- off custom or bespoke services which are not ontinuous tracking services).
“Client” means the person appointing the Company to provide the Services as set out in the Contract.
“Company” means the Lightspeed Group of companies (including, but not limited to, Lightspeed, LLC (File Number 4772214) a company registered in the State of Delaware, USA, whose principal office is located at 3 Mountainview Road, 3rd Floor, Warren, New Jersey 07059-6711 USA, Lightspeed Research Limited (Registration Number 03958994) a company registered in the United Kingdom, whose principal office is located at 4 Millbank, Westminster, London SW1P 3JU, United Kingdom, the Lightspeed Health brand and the Financial Services Group brand).
“Codes of Practice” means mandatory codes, rules and regulations of regulatory bodies and voluntary codes of practice of industry – recognised self-regulatory bodies (including but not limited to ESOMAR) and in all cases directly applicable to the conduct of the Services by the Company but excluding specific laws, regulations and codes relevant to the Client.
“Confidential Information” means information that (a) is marked or otherwise identified as “confidential” or with a similar designation, or (b) even if it is not marked or identified as “confidential,” a reasonable person would recognize as information that ought to be treated as confidential information, including the Proposal, Company’s tools; studies or surveys commissioned and paid for by the Client and any other information relating to know-how, formulae and processes, technical or non-technical data, patterns, compilations, programs, methods, techniques, databases or business affairs of the applicable party or one of its affiliates; financial information, contractual information, client information, prices and costs, data related to regulatory submissions; Proposals and study designs not forming the subject of an executed Contract and any other relevant information furnished to the recipient by or on behalf of the other party under the Contract.
“Continuous Service(s)” means bespoke continuous or tracking market research services which are not Ad-hoc or Syndicated Service(s) provided by the Company.
“Contract” means the written contract between the Company and the Client consisting of these Conditions, together with a form of written document including but not limited to: the Proposal, Statement of Work, Job Confirmation Form or Purchase Order (where used) which incorporates these Conditions and sets out amongst other things the Services, Deliverables and Fee. In the event of any inconsistency between the documents comprising the Contract, this shall be resolved according to the following numbered order of priority: (i) the Statement of Work or Job Confirmation Form (where used); (ii) these Conditions; (iii) the Proposal; and (iv) the Purchase Order.
“Data Protection Legislation” means all laws and regulations, including laws and regulations of the European Union (“EU”), the European Economic Area (“EEA”) and their member states, Switzerland and the United Kingdom, including as from 25 May 2018, GDPR, applicable to the Processing of Personal Data under the Conditions.
“Deliverable(s)” means such survey results, reports, data, summaries, comments, discussion and/or analysis as are named as such in the Contract, created for and provided by the Company to the Client when implementing the Proposal in the course of providing the Services.
“Expenses” means those out-of-pocket expenses incurred by the Company in the course of providing the Services and not expressly included in the Fee.
“Fee” means the total fee(s) to be paid the Company for the provision of the Services to the Client set out in the Contract.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation). The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Processing”, “Processor” and “Supervisory Authority” shall have the same meaning as in the GDPR and their cognate terms shall be construed accordingly.
“Intellectual Property Rights” or “IPR” means all patents, rights to inventions, copyright and related rights, moral rights, database rights, semiconductor topography rights, utility models, rights in designs, trademarks, service marks, trade or brand names, domain names, rights in goodwill or to sue for passing off, and other similar or equivalent rights or forms of protection in each case whether registered or unregistered and including all applications (or rights to apply) for, and for renewals and extensions of, such rights as may now or in the future exist anywhere in the world (and “Intellectual Property” shall be interpreted accordingly).
“Job Confirmation Form” means the written form of acceptance for the provision of the Services in accordance with the Proposal to which these Conditions are incorporated, to be approved and returned to the Company by an authorised signatory of the Client. This approval can be in the form of an email.
“Kantar Group” means the WPP Group’s network of market research, information, insight and consultancy agencies and trading as Kantar from time to time.
“Primary Records” means all records, materials and information obtained by verbal interviewing techniques, postal and other self-completion questionnaires, mechanical or electronic equipment, observation and any other method where the identity of the provider of the information may be recorded or otherwise traced and all similar records.
“Proposal” means the written final proposal and/or quotation for the provision of the Services issued by the Company to the Client. Where a Statement of Work or Job Confirmation Form is issued by the Company, this shall supersede the Proposal.
“Purchase Order” means the purchase order or equivalent official document issued by Client which meets all applicable Client procedures and policies for authorising expenditure and paying invoices to the extent required by the Contract.
“Secondary Records” means all data, tables, records and information from which the provider of the information is not traceable comprising the analysis of the Primary Records but not forming part of the Deliverables unless named as such in the SOW.
“Services” means the Ad-hoc Service and/or Continuous/Syndicated Service (as the case may be) to be performed by the Company for the Client as set out in the Proposal, Statement of Work or Job Confirmation Form as applicable.
“Statement of Work” or “SOW” means the written form of acceptance for the provision of the Services in accordance with the Proposal to which these Conditions are incorporated, to be approved and returned to the Company by an authorised signatory of the Client. This approval can be in the form of an email.
“Syndicated Service(s)” means market research services including “omnibus” research which is either commissioned by the Company itself for resale or is commissioned by and/or conducted for more than one client.
“Third Party Software” means commercially available off-the-shelf software developed by persons other than the Company, which may be required for the purpose of accessing or using the Deliverables, including, by way of example only, Microsoft Excel and SPSS.
“WPP ” 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.
2 Research Standards
2.1 The Company shall perform the Services in a professional manner, in accordance with the agreed Contract for such Services and any applicable Codes of Practice.
2.2 The Client shall make available such information as is requested by the Company to ensure compliance and the Client warrants and agrees to be responsible for the accuracy of any information and for any instructions supplied by or on behalf of the Client.
3 Acceptance of Contract
3.1 The Contract (including the Fee set out in the Proposal) shall be valid for acceptance by the Client for a period of two (2) calendar months from the date that the Contract is issued. The Company shall agree with the Client whether a Statement of Work/Job Confirmation Form or Purchase Order or both are required to form a Contract in respect of the Services prior to the commencement of Services and the following provisions will apply accordingly.
3.2 The Client shall be deemed to have accepted the Contract and a Contract shall be formed by the Client either: (i) notifying the Company in writing (which may be by email) that it has accepted the Proposal or the Statement of Work/Job Confirmation Form (as applicable); or (ii) otherwise notifying the Company in writing (which may be by email) that it wishes the Company to commence provision of the Services (including, without limitation, by issuing a Purchase Order in respect of the Services or any part thereof). For the avoidance of doubt, where the Client must, to comply with its own procedures, issue a Purchase Order and fails to do so, the Client understands and accepts that the Company shall not be obliged to commence the Services nor supply any Deliverables until the Purchase Order has been received by the Company. In these circumstances the Company may at its sole and absolute discretion commence the planning and project management of the Services but will not commission field work or any third party costs, and all time scales for delivery will be revised accordingly. All Client Purchase Orders must include or reference the agreed final version of the Proposal where no Statement of Work/Job Confirmation Form is used.
3.3 If the Client has not accepted the Contract within two (2) calendar months then the Proposal (including the Company’s Fee quotation set out in the Proposal) will expire, unless an authorised representative of the Company has agreed to extend this validity period in advance in writing. The Company reserves the right to amend or withdraw the Proposal (including the Fee quotation set out in the Proposal) at any time until it is f`ormally accepted by the Client.
3.4 The Company shall not be required to commence provision of the Services until it has received acceptance of the Proposal or Statement of Work or Job Confirmation Form (as applicable) as set out above.
3.5 For the avoidance of doubt these Conditions shall take precedence over any terms provided by the Client including but not limited to those that may be contained in a Purchase Order which shall be null and void.
4 The Fee
4.1 The Fee is quoted in the Proposal exclusive of Value Added Tax (VAT) (or any other equivalent sales tax). Where required by law, VAT (or any other equivalent sales tax) will be chargeable in addition to the Fee.
4.2 The Company shall be entitled to recover reasonable Expenses incurred pursuant to the provision of the Services subject to copy receipts being retained by the Company (and provided to Client upon written request) unless such expenses have been expressly stated in the Contract as being included in the Fee.
4.3 If the Fee has been based upon information provided by the Client which is subsequently shown to be incomplete or incorrect, the Company shall be entitled to increase the Fee to take account of any resulting additional time involved in providing the Services (or additional services) and any necessary additional costs incurred by the Company.
4.4 The Client further acknowledges that any changes to the Services or Deliverable beyond that originally notified to the Company and anticipated by the Proposal may incur additional fees and/or Expenses which will be agreed in writing between the Company and the Client prior to such extended change.
4.5 Unless expressly stated otherwise in the Proposal, the Fee is proposed and payable in US dollars or Lightspeed local currency equivalent. For projects involving currencies other than sterling, the Fee quoted in the Proposal (or Statement of Work if applicable) will be calculated based on an indicative exchange rate. This fee is subject to change due to exchange rate movements prior to the formation of the Contract at which time the Company normally obtains forward cover. Should delay on the part of the Client or other factors outside the Company’s control affect this procedure and involve the Company incurring additional costs not envisaged at the time of formation of the Contract, the Company reserves the right to adjust the Fee. Where the Client is late in paying any sums due to the Company hereunder and such late payment results in the Company incurring additional costs due to exchange rate movements, then the Company reserves the right to pass on these costs to the Client. Any extra costs referred to above shall be confirmed by the Company to the Client from time to time in writing.
4.6 The Fee quoted in the Proposal assumes that payments to the Company will be made free and clear of and without deduction of withholding tax levied in any country from which payment is made. Should any such tax arise which in the Company’s reasonable opinion cannot be readily recovered within a reasonable time scale, then the Company shall be entitled to increase the Fee to the extent necessary that after the payment of any required tax, the Company receives and retains a net amount equal to the agreed Fee.
4.7 The Company reserves the right to charge for additional unforeseen costs incurred as a result of statutory amendments to rates of pay, taxes or duties or any other circumstances outside the control of the Company, including but not limited thereto, war, civil disturbances, strikes or capricious behaviour of the authorities. Furthermore, if at any time the Client requests that any aspect of the Services set out in the Proposal (including timing) be changed, the Company reserves the right to adjust the Fee accordingly.
4.8 The Company shall give the Client written notice of the revised Fee, and if such increase exceeds 10% of the previous agreed Fee the Client shall, providing that it does so within 7 days of receipt of notification of the revised Fee, be entitled to serve immediate notice of termination of the Contract. However, in such an event the Client shall be liable to pay the Company that part of the Fee that relates to all work undertaken, and for any non-cancellable third party costs incurred and/or committed to by the Company up to the date of termination.
4.9 All Fees paid under these Conditions shall be paid without deduction, withholding or set-off.
4.10 All sums payable to the Company under the Contract shall become due immediately on its termination, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
4.11 Billing frequency will be dependent upon fieldwork duration – projects with duration over 30 days will be stage billed during fieldwork.
5 Terms of Payment
5.1 Unless otherwise agreed in writing, for Continuous Services and Syndicated Services payment of the basic annual Fees will be made in quarterly instalments in advance, commencing on the date on which the Proposal is accepted in accordance with Clause 3 and quarterly at the beginning of each quarter thereafter.
5.2 Unless otherwise agreed in writing, for Ad-hoc Services payment of the Fees shall, unless otherwise agreed in writing by an authorised representative of the Company, be as follows. For all quantitative Services, and qualitative Services with a Fee exceeding $10,000, the Company shall invoice the Client fifty per cent (50%) of the Fee on commissioning, forty per cent (40%) of the Fee on commencement of field work and ten per cent (10%) on completion (that is, unless otherwise agreed, on delivery of the Deliverables). For qualitative Services with a Fee of less than $10,000 the Company shall invoice the Client one hundred per cent (100%) of the Fee on commissioning of the Services.
5.3 The Client shall make payment to the Company within 30 days of the date of the relevant invoice.
5.4 Without prejudice to any other right or remedy to which it may be entitled, the Company may charge interest at the rate of 1-1/2% per month or the highest rate permissible under applicable law from the due date up to and including the date that payment is made in full on any payment which is overdue in accordance with these Conditions.
5.5 Invoices shall be paid in the currency in which they are issued. Any applicable VAT (or equivalent sales tax) will be added to all invoices.
6 Postponement, Suspension or Delay
6.1 Once the Client has accepted a Proposal and Fee and a Contract has been formed in accordance with Clause 3, the Services will be provided by the Company for the duration of the project as set out in the Proposal (or Statement of Work/Job Confirmation Form, where used) and the Client may not normally then postpone or suspend any element of the Services to which that Contract relates other than in accordance with these Conditions. In the event of a material business event or circumstance(s) arising leading to a genuine request by the Client to postpone or suspend any element of the Services to which that Contract relates, the Client shall immediately notify the Company and the Company shall, subject to the provisions of this Clause 6, cease activity in relation to the Services.
6.2 In the event of a postponement or suspension, the Client shall pay all costs incurred and/or committed to by the Company up to the point of such postponement or suspension and any additional costs occasioned by the postponement or suspension and associated rearrangement of the Services.
6.3 In the event that the Company’s performance of the Services is prevented or delayed by any act or default of the Client (including without limitation a delay in supplying a Purchase Order in accordance with Clause 3.3), or any employee, agent or contractor employed or engaged by or on behalf of the Client (not being the Company), and the Company as a result spends additional time and/or costs in providing the Services or suffers any loss, then the Client shall make payment to the Company for the said additional costs and/or compensate the Company for any loss so incurred, in addition to the agreed Fee. Further, the Company shall be entitled to amend the programme for the performance of the Services and delivery of any Deliverables.
7 Term and Termination
7.1 The duration of the Contract shall be specified in the Proposal (or Statement of Work/Job Confirmation Form, where used).
7.2 Either party (the “Complaining Party”) may terminate this Contract by giving written notice to the other party (the “Defaulting Party”) if any of the following events occurs:
(a) The Defaulting Party commits any material breach of any of the provisions of this Contract and either: (i) the breach is not capable of remedy or (ii) if the breach is capable of remedy, the Defaulting Party fails to remedy it within 45 days after receiving a written notice from the Complaining Party containing full particulars of the material breach and requiring it to be remedied; or
(b) The Defaulting Party (which term shall include the holding company or ultimate parent company of the Defaulting Party) becomes bankrupt or goes into liquidation (whether voluntary or compulsory), is dissolved, compounds with its creditors or has a receiver, administrative receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution, for the making of an administrative order, the winding-up, bankruptcy or dissolution of the Defaulting Party or the Defaulting Party suffers any similar process under the law of its domicile or place of its jurisdiction.
7.3 Either party may terminate this Contract for convenience by giving the other party: (i) three (3) months’ prior written notice in respect of Ad-Hoc Services; and (ii) 6 (six) months’ prior written notice in respect of Continuous Services and Syndicated Services. In addition, in respect of Syndicated Services, the Company shall be entitled to terminate such Services on 1 month’s prior written notice where, in the Company’s reasonable opinion, the continued provision of such Services to the Client is not commercially viable (for example, where the number of subscribers to such Services falls below an acceptable level).
7.4 Unless otherwise agreed by the Company, in the event of a termination of the Contract for convenience by the Client pursuant to Clause 7.3, the Client shall pay the Fee up to the date of termination (and for the avoidance of doubt a proportion of the Fee may relate to the whole term of the original Contract and become payable irrespective of an earlier termination date) and all committed and unavoidable costs (including but not limited to set up costs).
7.5 Upon termination of this Contract, unless otherwise agreed by the Company, all invoices which have already been submitted by the Company will become payable and refunds for payments made which exceed the Termination Fee shall be at the Company’s sole, reasonable discretion. Where the Contract has been terminated by the Company pursuant to Clause 7.3, the Company shall liaise with the Client regarding the orderly handover of the Services to the Client or a replacement provider, as the case may be.
8 Product and Other Test Materials
8.1 Where products, samples or test materials are provided by the Client to the Company for use in connection with the Services, the Client warrants that any content, packaging or labelling shall comply with all relevant laws in all relevant territories and agrees that the Client shall be solely liable for and shall fully indemnify the Company and the other members of the WPP Group against any damage, loss, liability, claim, proceeding, expense, injury, or inconvenience caused by the use of such products, samples or materials (whether to the Company or any third party) or from any allegation that they infringe any intellectual property or other rights of any third party or from any of them being defective. If required by the Company, the Client shall produce evidence of sufficient product liability or other indemnity insurance as determined by the Company.
8.2 If the Client wishes the Company to represent it in respect of dealing with any complaint regarding any products, samples or other materials used in the Services, this shall only be with the prior agreement of the Company (which may be withdrawn at any time) and at the cost of the Client.
8.3 The Client agrees that when it appoints the Company to provide Services which relate to a new or revised product or service of the Client, the Company shall not under any circumstances be responsible for the loss of any patent protection arising as a result of the performance by the Company of such Services.
8.4 The Company shall not be liable in any circumstances for the loss of or damage to any such products, samples or test materials, once they have been supplied to respondents and will be entitled to confidentially destroy any remaining physical products, samples or test materials supplied by the Client upon completion of the Services unless otherwise agreed in the Contract.
9 Accuracy of Deliverables
9.1 The Company shall provide the Services with reasonable skill and care in accordance with the specification contained in the Proposal (or Statement of Work/Job Confirmation Form where used) and the Deliverables shall be the result of careful analysis of respondent data and shall have been subject to thorough checks by or on behalf of the Company in accordance with its quality control policies. The Company agrees to use all reasonable endeavours to comply with the MRS Code of Conduct (www.mrs.org.uk). Both parties agree to use reasonable endeavours to comply with the ESOMAR Code of Conduct.
9.2 The Client acknowledges and accepts that (i) the response rates to surveys/questionnaires cannot be predicted and are not guaranteed by the Company, (ii) all figures contained in Deliverables will be estimates derived from sample surveys and subject to the limits of statistical errors/rounding up or down; (iii) unless otherwise stated in the Contract, data collection sample achievement both at a total level and within quota will be within a margin of +/- five percent (5%) of the numbers stated and (iv) translating a Deliverable from the controlled test environment to the real market place, it is possible that some of the assumptions on which a Deliverable is based will not remain constant and any subsequent change in market conditions or to the test product itself, could impact on the initial performance predictions including possible invalidation of the Deliverable(s) in question.
9.3 Except as expressly set out in these Conditions, the Company disclaims all other warranties, conditions and guarantees relating to the Services and/or Deliverables either express or implied, including, without limitation, warranties for merchantability and fitness for a particular purpose.
10.1 The Company will use all reasonable endeavours to provide the Services, and to deliver any Deliverables, in accordance with the estimated timings set out in the applicable Proposal (or Statement of Work/Job Confirmation Form where used). However, the Company shall not be liable for any failure to adhere to the quoted timings or for any loss or damage suffered by the Client resulting from any delay caused directly or indirectly by any act or omission by the Client and/or by any third party for whom the Company is not contractually responsible hereunder. The parties agree that time shall not be of the essence as regards this Contract.
10.2 Where the Company agrees to supply a Deliverable to the Client in electronic format, both parties shall use their best endeavours to comply with any security specifications which may be issued by the Company to the Client from time to time.
10.3 The Client shall ensure that a single authorised person, or where required a single authorised person per region or territory, shall take responsibility for co-ordinating on behalf of the Client all matters relating to the Company distribution of data electronically. Such Client contact shall be responsible for matters including the distribution of user identities, restricted use of passwords and other security issues. The Client shall ensure that use of any password allocated by the Company is strictly limited. The Company reserves the right to withdraw the use of any password in the event that it considers there may have been, or is likely to be, a breach in security or other valid commercial reason.
11.1 The Client shall be responsible for fully and promptly complying with all requests for information or approval to assist the Company in complying with any required timescale.
11.2 The Client and the Company agree that for the purposes of the Contract, a signature of an authorised signatory on behalf of the Client on materials submitted for approval shall be construed as written approval of that material and messages sent by facsimile or electronic mail will constitute valid written approval. The Client acknowledges that circumstances may arise where the Company must act on the basis of verbal authority and accepts that it may do so where authority cannot reasonably be provided in written form.
11.3 Where the Company provides a contact report confirming a verbal discussion with the Client, it is imperative that any disagreement on matters covered is notified to the Company immediately. If no disagreements are raised within 4 days of the date of the issue of the contact report it shall be deemed to be confirmed as accurate.
12 Data Ownership and Storage
12.1 Questionnaires (and all software applications, databases, computer programs, including source code and object code for any such programs used to program survey questionnaires), audio and visual tapes and computer records prepared by or on behalf of the Company during the course of providing the Services and whether completed or not shall remain the property of the Company unless otherwise agreed in the Contract. Upon payment of all sums due to Company under the project, Client shall have exclusive, unlimited ownership rights in and to all Intellectual Property Rights in all work product produced by Company for Client, including the Deliverables prepared hereunder, or developed as a result of or in connection with the Services performed hereunder. For avoidance of doubt, in the event Company is scripting the profiling and/or screener questionnaires as a requirement hereunder, such questionnaires shall remain the Property of Company.
12.2 The Client may, on request and at its own expense, be supplied with copies of the survey records which have been used to prepare a Deliverable, subject to the requirements of the MRS Code of Conduct and the Data Protection Legislation to respect the anonymity of respondents. For the avoidance of doubt, the Company shall not be required to provide copies of survey records to the Client if, in the Company’s sole opinion, to do so would be in breach of the MRS Code of Conduct and/or applicable Data Protection Legislation and regulations. The Client warrants that it shall store and use any survey records provided by the Company strictly in compliance with all applicable Data Protection Legislation and regulations and that it shall fully indemnify the Company against any and all claims relating to its breach of the same.
12.3 The Primary Records shall at all times remain the property of the Company, who shall be entitled to destroy them, without reference to the Client on the earlier of 12 months after the submission of the Deliverables or 12 months after completion of the Services set out in the Proposal (for a Continuous/Syndicated Service this will be 12 months after completion of each fieldwork period) with the sole exception of Qualitative recruitment screening questionnaires which will be retained for 3 months. Title in the Secondary Records remains at all times the property of the Company unless named as Deliverables or otherwise agreed in the SOW/Job Confirmation Form (where used). The Company shall be entitled to destroy them, without reference to the Client, 2 years after the submission of the Deliverables or 2 years after completion of the Services set out in the Proposal.
13 Confidentiality and Public Statements
13.1 At all times during the term of the Contract and for a period of two years after its termination, each party (“Receiving Party”) shall, and shall use reasonable endeavours to procure that the Receiving Party’s personnel keep confidential all Confidential Information and shall not:
(a) without the other party’s prior written consent, use such information for any purpose other than to perform the Receiving Party’s obligations under these Conditions or an SOW or Job Confirmation Form; or
(b) disclose such information except: (i) to the Receiving Party’s professional advisers (and where the Receiving Party is the Company, to any member of the WPP Group) who reasonably need to know such information in connection with the Receiving Party’s obligations under these Conditions or an SOW or Job Confirmation Form (provided that such persons are bound by equivalent obligations of confidence); or (ii) as may be required by law or by a court, regulatory authority or other competent authority; or (iii) to the extent that such information is in the public domain, or has been derived independently by the Receiving Party, otherwise than as a result of a breach of this clause or law; or (iv) as may be specifically agreed between the parties.
13.2 The Company and the Client shall ensure that all their respective affiliates are bound by this Clause 13 (including during any pitch process and specifically in relation to any Proposal) at all times during the term of these Conditions and for two years thereafter.
13.3 Each party shall be entitled to list the other as its service provider or client in marketing/promotional material. Except for this right neither party shall have any right to use the other party’s name, trade mark, logo, or slogans without the prior written consent of that party.
14 Intellectual Property Rights
14.1 The Intellectual Property Rights in any Proposal issued by the Company is and shall remain the exclusive property of the Company.
14.2 The Primary Records and, unless they are named as Deliverables or otherwise agreed in the SOW or Job Confirmation Form, the Secondary Records shall at all times remain the property of the Company. Subject to Clauses 14.4 and 14.5, for Ad-hoc and Continuous Services the Intellectual Property Rights in each Deliverable shall vest in the Client upon payment of all Fees due to the Company in respect of such Deliverable.
14.3 For Syndicated Services, the Intellectual Property Rights in the Services and the Deliverables vest in and shall remain vested in the Company at all times. However, upon payment in full by the Client of the Fee and any related charges, expenses or disbursements, the Client shall be granted a non-exclusive, non-transferable, perpetual, worldwide licence (without the right to grant sub-licences) by the Company to use the Deliverables for its bona fide internal business purposes and for any other purpose specified in the Contract.
14.4 It is agreed that the Company shall be entitled, both during and after the termination or expiry of this Contract, to use all Deliverables and other findings and records resulting from the Services for its own internal purposes, as part of its own databases and for purposes connected with its business, including in connection with any relevant legal dispute.
14.5 Notwithstanding Clauses 14.1 to 14.4 above, at all times all rights, including all Intellectual Property Rights, of whatsoever nature in and to any techniques, principles and formats and in all proprietary materials, software, programs, macros, algorithms, modules, survey questionnaires (including any software and technology used to program a questionnaire), 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 (“Background Intellectual Property Rights”) shall at all times remain the exclusive property of the Company. The Client shall be granted a non-exclusive, non-transferable, perpetual, worldwide licence to use the Secondary Records (if and to the extent that they are included in the Deliverables) and the Company’s Background Intellectual Property Rights but solely to the extent required to use the Deliverables in accordance with this Contract. Where the Company develops additional modules for use with the Company’s existing software and/or systems during the course of providing the Services (including Ad-hoc Services), all rights, including all Intellectual Property Rights, shall vest in and remain vested in the Company. Where the Company develops additional modules for use with the Client’s software and/or systems, the Company shall have the right to use such modules in future projects and/or services it may provide to its clients.
14.6 Where software is to be provided by the Company as part of the Services, the Client acknowledges that its use of such software may be subject to separate licence terms. For the avoidance of doubt, the Client shall be responsible for ensuring that it is appropriately licensed to use any Third Party Software required to access or otherwise use the Deliverables. Unless expressly agreed between the parties, the Company shall not be required to procure the grant of any licence of Third Party Software to the Client as part of the Services.
14.7 Where the Client provides the Company with data and/or materials in connection with the Services, such data and/or materials shall remain the exclusive property of the Client but the Company shall be granted a non-exclusive, non-transferable, perpetual, worldwide licence to use such data and/or materials for the purposes of providing the Services in accordance with this Contract.
15 Limitation of Liability
15.1 No party excludes or limits its liability under this Contract for death or personal injury caused by its negligence, fraudulent misrepresentation or any other type of liability, which cannot by law be excluded or limited.
15.2 Subject to Clause 15.1, neither party shall be liable for loss of business, use, profit, anticipated profit, contracts, revenues, goodwill or anticipated savings, loss of data or use of data, or consequential, special or indirect loss or damage even if such party has been advised of the possibility of such loss or damage.
15.3 Subject to Clauses 15.1 and 15.2, the Company’s total liability for all claims under or in connection with this Contract for loss or damage not otherwise excluded shall not in aggregate exceed the greater of (i) the amounts paid or payable by Client to the Company under this Contract; or (ii) $10,000.
15.4 If conclusions and/or recommendations are required of the Company as part of the Services, such conclusions and/or recommendations are solely and exclusively an opinion of the Company and are based on variable assumptions used in the field of market research and forecasting and based on a controlled test environment. Whilst they are the result of careful analysis and thorough work procedures, they constitute a single factor among many to be taken into account by the Client. The results of qualitative research cannot be projected onto the overall population due to sample selection, interviewing methods and sample size. In no event (other than in the case of the Company’s proven wilful or gross negligence) shall the Company be liable to the Client for any loss or damage whatsoever with respect to any conclusions or recommendations made by the Company in relation to the Services and contained in the Deliverables or to reliance thereupon by the Client. The Client hereby acknowledges that it shall be solely responsible for the consequences of any action taken by it based on the Deliverables or pursuant to its interpretation of the Deliverables.
16 Assignment and Sub-Contracting
16.1 The Company shall be entitled to assign its rights under this Contract to another member of the WPP Group.
16.2 Save as set out above, neither party may assign all or any part of the Contract without the prior written consent of the other party, which shall not be unreasonably withheld.
16.3 Provided that the Company shall remain primarily responsible to the Client for the performance of the Services, the Company shall have the right to subcontract any part of the provision of the Services and Deliverables to other members of the Kantar Group or to the Company’s approved third party vendors, 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.
16.4 Some operational aspects of quantitative research projects may be provided by Kantar Operations and online panel data collection will be handled by Lightspeed Research, each of whom may in turn subcontract all or part of the data collection to one of their approved partner companies.
The Client and the Company covenant with each other that they shall not, either on their own account or for any other person, firm or company, directly or indirectly solicit, interfere with or endeavour to entice away from the other, any senior director, employee or consultant of the other (whether or not such person would be in breach of his contract of employment or engagement by reason of leaving the service of the party concerned) nor shall either party knowingly employ, aid or assist in or procure the employment by any other person, firm or company of such person during the Contract and for a period of 12 months thereafter. It shall not be a breach of this Clause 17 for either party to place public advertisements to which such person responds without any solicitation, inducement or enticement.
18 Data Protection
18.1 Each of the Company and the Client shall comply at all times with Data Protection Legislation.
18.2 A party acting as Data Controller warrants and undertakes on a continuing basis that it has lawfully obtained all Personal Data provided to the Data Processor and has obtained all consents from individuals which are required to enable the Data Processor to process such Personal Data in accordance with these Conditions and Data Protection Legislation.
18.3 A party, acting as Data Processor, shall:
(a) at all times take appropriate technical, operational, managerial, physical, organisational measures in accordance with prevailing practices of care, skill, professionalism and diligence to safeguard against unauthorised or unlawful processing of personal data and against any unauthorised or unlawful accidental loss, destruction of, or damage to, personal data and ensure the security of such personal data;
(b) only use such Personal Data in accordance with such local Data Protection Legislation;
(c) not delete, transfer, modify, extract, remove or otherwise process any of the Personal Data, except in accordance with the Data Controller’s instructions;
(d) not process itself or through any third party any personal data outside of the European Economic Area (EEA) without the prior written consent of the Data Controller. The Data Controller undertakes not to withhold its consent unreasonably provided that the Data Processor has furnished all necessary legal and technical documentation clearly mapping its processes, procedures and security measures prior to the commencement of processing and provided that the Data Controller is satisfied with the same.
(e) within the reasonable timescales specified by the Data Controller, comply with any information notice served by the Data Controller requiring the Data Processor to furnish the Data Controller such information and in such format as the Data Controller may reasonably require and delete and amend any Personal Data held by the Data Processor belonging to the Data Controller to the extent that the Data Controller is not reasonably able to perform such a request itself and the Data Processor will promptly certify in writing once completed;
(f) provide to the Data Controller prompt written notice (and in any event within 24 hours) of any actual or suspected security breach affecting Personal Data belonging to the Data Controller. Such notice shall summarize in reasonable detail the impact of such security breach and the persons whose Personal Information are affected; and
(g) not subcontract any Processing of Personal Information in relation to any SOW or Job Confirmation Form to any third party without the prior written consent of the Data Controller. Any such consent granted by the Data Controller may be subject to such conditions as the Data Controller (acting reasonably) deems appropriate, including any requirement that the proposed subcontractor should enter into the standard contractual clauses set out provided by the annex to Decision 2010/87/EC of the European Commission dated 5 February 2010 for the transfer of Personal Data to Processors established in third countries, as amended from time to time, or equivalent.
18.4 In the event and to the extent the Data Controller provides written approval for the Data Processor to disclose Personal Information to the Data Processor’s subcontractor, the Data Processor shall, prior to any such disclosure, enter into a written, valid and enforceable agreement with such subcontractor that includes terms that:
(a) are substantially the same as the obligations applicable to Personal Information as contained in this paragraph 18; and
(b) otherwise require such subcontractor to comply with the terms and conditions of this clause.
18.5 The Client acknowledges and agrees that details of its name, address and payment record may be submitted to a credit reference agency, and such data may be processed by and on behalf of the Company in connection with the Services.
18.6 The Company shall have in place measures which incorporate the relevant security standard required dependent on the business or any such equivalent standard that replaces it from time to time. The Company shall notify the Client in the event that it ceases to retain such security standard. The Client warrants that all information supplied to the Company in relation to its security and data policies and practices is true and accurate. The Client shall indemnify the Company and keep the Company indemnified from and against all losses, liabilities, claims, expenses, damages and costs suffered or incurred by the Company as a result of the Clients’ failure to abide by the Data Protection Legislation and the provisions of GDPR.
18.7 Subject to prior express consent from an individual the Company reserves the right to re-contact an individual for participation in further surveys.
19 Freedom of Information Act 2000
19.1 The Client must notify the Company immediately in writing in the event that it is or if it becomes a “public authority” for the purposes of the Freedom of Information Act 2000 (or any replacement of the same from time to time or equivalent legislation applicable in territories outside of the UK) (the “FOIA”).
19.2 If applicable, in the event that the Client receives a request for public disclosure under the FOIA of any information relating to the Company, the Services, the Deliverables or this Contract, the Client shall promptly notify the Company in writing (enclosing a copy of the public disclosure request) so that the Company can work with the Client in honouring its obligations under the FOIA whilst at the same time, having due regard to the confidentiality of the Company’s confidential and commercially sensitive information.
19.3 The Client shall return all confidential information (including, without limitation, all copies thereof) disclosed by the Company for the purposes of entering into this Contract and carrying out the Services as soon as reasonably practicable after all Deliverables have been provided.
19.4 The Company shall use reasonable endeavours at all times to assist Client with FOIA requests and the Government’s Transparency Agenda. In fulfilling its obligations under FOIA, the Client accepts and agrees that the Company’s Proposals are copyrighted and are, together with the Contract, to be held in strict commercial confidence at all times. The Client understands that any release of the Proposal or Contract would harm the Company’s commercial and competitive interests and undertakes (and undertakes to procure such an undertaking from any third party to whom the proposal or Contract might be released in accordance with the Contract) at all times to use all reasonable endeavours to agree the content and such redaction as the Company may reasonably require of any release of the Proposal or Contract (or any extract thereof) with the Company prior to release.
20.1 All notices to be given by either party to the other shall be in writing and addressed to the receiving party at that party’s last known address. Service may be deemed to be delivered immediately by personal delivery or secure corporate electronic mail. Postal service shall be deemed delivered 48 hours after posting by recorded delivery mail. Service by e-mail and facsimile shall be deemed to be delivered simultaneously with transmission subject to production of confirmation of transmission.
21 Anti Bribery and Corruption
21.1 The Client and the Company undertake each to comply with, and that the Services will be performed in accordance with any anti-bribery or anti-corruption laws of the jurisdiction in which the Services are being provided, as amended from time to time (“the Anti-Corruption Laws”) and that each shall not do, nor omit to do, any act that will lead to the other being in breach of any of the Anti-Corruption Laws.
21.2 The Client and the Company shall each have in place and comply with their own anti-bribery and corruption policy (“Company Anti-Bribery and Corruption Policy”) to ensure that each complies with the Anti-Corruption Laws. Each shall review their Anti-Bribery and Corruption Policy on a regular basis and shall promptly implement any amendments to their Anti-Bribery and Corruption Policy which each considers necessary for continued compliance with the Anti-Corruption Laws.
21.3 The Client and the Company shall co-operate with each other from time to time in connection with the obligations of each under this clause. This obligation shall continue after the expiry or termination of this Contract.
21.4 The Client and the Company shall immediately notify the other in writing of any suspected or known breach of their Anti-Bribery and Corruption Policy or the Anti-Corruption Laws insofar as it affects the Services under this Contract. This obligation shall continue for a period not exceeding three months after the expiry or termination of these Conditions.
22 General Conditions
22.1 Entire Agreement. These Conditions, any and all Proposal and Statement of Works into which the terms of these Conditions are incorporated, constitute the entire agreement between the parties in relation to their subject matter and supersede and extinguish all previous drafts, agreements, arrangements and understandings between the parties, whether written or oral, relating to such subject matter. All other terms are expressly excluded, including any terms and conditions of purchase of the Client.
(a) The Client acknowledges that, in entering into the Contract, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Conditions.
(b) No party shall have any claim for innocent or negligent misrepresentation based upon any statement in these Conditions
(c) Nothing in this Clause 22.1, however, shall exclude any liability on the part of either party for fraud or fraudulent misrepresentation.
22.2 Survival. The provisions of these Conditions which are expressly or impliedly intended to survive the termination or expiry of the Contract shall survive such termination or expiry.
22.3 Force Majeure. The Company shall not be liable for failure to perform its obligations hereunder due to, fires, storms, riots, strikes, disease, shortages of materials, lock-outs, wars, floods, civil disturbances, terrorism (or material threat of an act of terrorism), Governmental control, major technical malfunction (including, without limitation, failure of the internet), pandemic, restriction or prohibition whether local or national.
22.4 Severability. If any provision of this Contract is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that shall not affect or impair: (i) the legality, validity or enforceability in that jurisdiction of any other provision of this Contract; or (ii) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Contract.
22.5 By accepting the Proposal, Statement of Work or Job Confirmation Form (as applicable), the Client shall be deemed to have accepted these Conditions in their entirety. No addition or amendment to these Conditions, any exclusion of these Conditions or any substitution of any other terms by the Client will be accepted by the Company unless such an addition, amendment, exclusion or substitution has been confirmed by a director of the Company in writing. This may lead to the re-appraisal by the Company of any agreed timetable for the performance and/or the Fee quoted in the Proposal for the Services.
23 Governing Law: Any dispute arising under this or any other Lightspeed project will be governed in all respects by the local laws of the country in which the Lightspeed legal entity billing for services provided under the Lightspeed project is located, without giving effect to the principles of conflict of laws.
24 Collection of Personal Data/Sensitive Data; Purpose for Data; Technology: For each Proposal, Company and Client shall agree on the collection of Personal Data, Sensitive Data, the purpose for the use of such data and any applicable technology used for the Services provided under the applicable Proposal, Statement of Work, Job Confirmation Form or Purchase Order. See http://www.lightspeedresearch.com/lightspeed-privacy-office/