1.1. The definitions and rules of interpretation in this clause apply in these terms and conditions:
“the Client”: the person, firm or company with whom the Company has contracted to provide services.
“Code of Conduct”: the Standard Code of Conduct adopted by the Market Research Society from time to time
“the Company”: WALR Group
“Contract”: the Client’s acceptance of a quotation for Services by the Company under clause 3. The Contract is made between the Client and the Company.
“Document”: includes, without limitation, in addition to any document in writing, any questionnaire, computer record, drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information or data in any form.
“Services”: consultancy, research surveys and associated information as requested by the Client and specified by the Company and the Client, together with any other services which the Company provides, or agrees to provide to the Client.
“VAT”: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 Headings in these terms and conditions shall not affect their interpretation.
1.4 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking into account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A singular includes the plural, and vice-versa.
2. APPLICATION OF TERMS & CONDITIONS
2.1 These terms and conditions together with the Code of Conduct shall:
(a) apply to and be incorporated into the Contract;;
(b) prevail over any inconsistent conditions contained in any quotation provided by the Company save for:
(i) Any statement in a quotation under the heading “Prevailing Terms” or
(ii) Any manifest errors and omissions in such quotation which shall be corrected by the Company when identified by the Company or drawn to the Company’s attention in writing by the Client and such corrected terms shall prevail; and
(c) not be varied except by agreement signed in writing by the Company and the Client.
2.2 The Client’s acceptance of a quotation for Services by the Company constitutes an offer by the Client to purchase the Services on these terms and conditions.
2.3 Any quotation for Services given by the Company shall be exclusive of VAT and is valid for a period of 90 days from its date, provided that the Company has not previously withdrawn it.
2.4 The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern or be incorporated into the Contract, expressly or by implication.
3. CREATION OF CONTRACT
No offer placed by the Client shall be deemed accepted by the Company other than:
(a) by an acknowledgment by the Company; or
(b) (if earlier) by the Company starting to provide the Services, when a contract for the supply and purchase of the Services on these terms and conditions will be established.
4. CHARGES & PAYMENT
4.1 Where the Quotation issued by the Company is for a fixed price the fee payable by the Client shall be the sum shown on the Quotation or such sum together with such additional payments as are identified in the Quotation.
4.2 Where the Quotation includes an obligation to pay a fee relating to the time taken by the Company staff, employees, executives or directors whether payment is solely based on time and additional charges or whether in addition to a fixed price the amount due and payable by the Client shall be such sum as is calculated in accordance with the Quotation.
4.3 The Client shall pay (without any deduction or set-off whatsoever) each invoice submitted to it by the Company, in full and cleared funds, within 30 days of the date of issue to a bank account nominated by the Company, or by cheque where agreed.
4.4 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date, the Company may:
(a) charge interest on such sum from the due date of payment at the annual rate of 4% above the Bank of England base lending rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Client shall pay the interest immediately on demand. The Company may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
4.5 Time for payment shall be of the essence of the Contract.
4.6 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.
4.7 The parties agree that, if at any time after the Contract is established in accordance with clause 3, the Client wishes the Services under the Contract to be varied, the Company reserves the right to review and increase the sums payable by the Client in such a manner the Company, in its sole discretion, deems reasonable.
4.8 If parts of the Services are being carried out outside the United Kingdom and the sterling equivalent of the costs incurred by the Company in respect of any part of the Service exceeds by more than 1% the proportion of the price attributed to that part in the quotation for Services by reason of currency fluctuations, the Company shall be entitled to charge the Client the actual sterling equivalent of these costs at the exchange rate in operation at the time the Company pays such costs.
4.9 If the Client has requested to be invoiced in a non-UK sterling currency and the sterling currency equivalent of invoice amounts are lower than the sterling equivalent at the time of the quotation by reason of currency fluctuations in excess of 1% and payment has not been received within 30 days of the invoice, the Company shall be entitled to resubmit the invoice at the prevailing exchange rate.
5.1 Without prejudice to any other rights or remedies which the other parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as reasonably to justify the opinion that its conduct is inconsistent with the intention or ability to give effect to the terms of the Contract; or
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a person) is deemed unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 286 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration, or other such process is levied or enforced or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 5.1(d) to condition 5.I (j) (inclusive); or
(l) it appears to the Company, in its sole discretion, that the Services under the Contract are or are at risk of being or have become contrary to the word or spirit of the Code of Conduct or are or are at risk of being or have become otherwise detrimental to the Company’s business reputation and goodwill.
5.2 ON TERMINATION OF THE CONTRACT FOR ANY REASON
(a) the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall, within a reasonable time, return all of the Company’s materials, equipment and tools, drawings, specifications and data supplied by the Company to the Client (including all Documents, information, and materials provided by the Company to the Client relating to the Services which existed either before or after commencement of the Contract). If the Client fails to do so, then the Company may enter the Client’s premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping.
5.3 On termination of the Contract (however arising), clauses 6 and 8 herein shall survive and continue in full force and effect.
6 THE COMPANY’S PROPERTY
6.1 All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Client (including all Documents, information, and materials provided by the Company to the Client relating to the Services which existed either before or after commencement of the Contract) shall, until payment in full of all sums owed to the Company by the Client in accordance with clause 4 herein, be and remain the exclusive property of the Company, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to the Company, and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation.
6.2 Copies (insofar as is possible) of any of the aforesaid materials, equipment and tools, drawings, specifications and data (including all Documents, information, and materials relating to the Services), but only in an anonymous form, can be made available to the Client on request and on payment of an additional charge.
7. CLIENT’S OBLIGATIONS
7.1 The Client shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) provide the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Client’s premises, office accommodation, data and other facilities as reasonably required by the Company;
(c) provide to the Company, immediately upon the establishment of the Contract in accordance with clause 3 herein and in a timely fashion at any point thereafter, such Documents, products, materials, and other information as the Company may reasonably require for the Services and ensure that such Documents, products, materials, and other information are accurate in all material respects;
(d) inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises;
(e) obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services;
(f) procure at its own cost in so far as it is available in the market insurance against such loss as the Client may foresee is reasonable for it to suffer as a result of any failure by the Company to provide some or all of the Services to such extent as will be sufficient having regard to the particular circumstances of the Client.
7.2 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges, or losses substantiated or incurred by the Client arising directly or indirectly from such prevention or delay.
7.3 The Client shall be liable to pay to the Company, on demand, all costs (on a full indemnity basis), charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, cancellations charges, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Client in writing.
8. COPYRIGHT & CONFIDENTIALITY
8.1 Save where the form of question is prepared by the client or required by the client to be in a set format, the copyright in all reports and preliminary work carried out by the Company shall, at all times, remain vested in the Company.
8.2 The parties agree that the Services shall be carried out by the Company exclusively for the Client to be used in connection with the Client’s business and shall not be disclosed to any third party without the prior written consent of the Company and nor shall the Company’s name be used by the Client or any third party in connection with the Services without the Company’s prior written approval.
8.3 The Client shall keep in strict confidence any respondent’s personal identifiable information and all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by the Company, its employees, agents, consultants or subcontractors and any other commercial information concerning the Company’s business or its products which the Client may obtain.
8.4 The Client may disclose such information as referred to in paragraphs 2 and 3 above:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Client’s obligations under the Contract;
(b) as may be required by law, court order or any government or regulatory authority; and
(c) to the extent that it has already come into the public domain otherwise than through unauthorised disclosure.
9.1 The Client shall not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract.
9.2 The Company may, at any time, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
10. LIMITATION OF LIABILITY
10.1 This condition sets out the entire financial liability of the Company (including any liability for acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client of the Services or any part thereof; and
(c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these terms and conditions limits or excludes the liability of the Company:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company.
10.4 Subject to paragraphs 2 and 3 above:
(a) the Company shall not be liable for:
(i) loss of profits;
(ii) loss of business;
(iii) depletion of goodwill and/or similar losses;
(iv) loss of contract;
(v) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise arising in connection with the performance or contemplated performance, of the Contract shall be limited to and not exceed any sums of money already paid to the Company by the Client
11. FORCE MAJEURE
11.1 Notwithstanding anything to the contrary herein contained, the Company shall have no liability to the Client under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation):
(a) any act of God, explosion, flood tempest fire or accident;
(b) malicious damage;
(c) acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations restrictions or embargoes;
(e) strikes, lockouts or other industrial actions or trade disputes (whether involving the workforce employees of the Company or any other party
(f) power failure or breakdown in machinery or utility service or transport network;
(g) default of suppliers or subcontractors.
11.2 In any claim, and in any action, suit or other proceeding to enforce a claim for loss or damage under these terms and conditions, the burden of proving that the loss or damage does not fall within this clause shall be on the Client.
11.3 The Client acknowledges that it is in a better position to foresee and evaluate any loss it might suffer in connection with the Services and that it is able to insure against such loss to such extent as will be sufficient having regard to the particular circumstances of the Client and the provisions of this Clause.
12. UNFAIR TERMS
The Client expressly acknowledges that the provisions of these terms and conditions satisfy the requirements of reasonableness specified in the Unfair Contract Terms Act 1977 and that it shall be stopped from claiming the contrary at any further date in the event of any dispute concerning the enforceability of these terms and conditions.
13.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under this Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
13.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.1 If any provision of the Contract (or any part of any provision) is found by any court or other authority or competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15. ENTIRE AGREEMENT
15.1 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently).
15.2 Nothing in this condition shall limit or exclude liability for fraud.
16. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
17. GOVERNING LAW & JURISDICTION
17.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
17.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with, the Contract or its subject matter.