In these Conditions, the following definitions apply:
- Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
- Charges: the charges payable by you for the supply of the Services in accordance with Condition 5;
- Conditions: these terms and conditions as amended from time to time in accordance with Condition 14.7;
- Contract: the contract between us and you for the supply of Services in accordance with the Proposal and these Conditions;
- Customer Materials: any data, information or other materials provided by you to us in relation to the provision of the Services;
- Data Supplier: a third party supplier of data we may use to perform the Services under the Contract;
- Deliverables: the deliverables set out in the Proposal produced by us for you;
- IPR: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
- Milestones: the project milestones (if any) set out in the Proposal;
- Order: your order for Services as set out your written acceptance of our Proposal;
- Listen + Learn Research Materials: has the meaning set out in Condition f);
- Proposal: our description or specification for the Services which we will supply to you under the Order;
- Services: the research and consultancy services, including the Deliverables, supplied by us to you as set out in the Proposal;
- us / we / our: Listen + Learn Research, registered in England and Wales with company number 07834611;
- you / your: the person or firm who purchases Services from us and whose details are set out in the Proposal.
2. BASIS OF CONTRACT
2.1 The Contract is made by you placing an Order with us based upon a Proposal we’ve supplied to you and it begins when we send you our written acceptance of the Order. The Contract is for us to supply the Services to you in accordance with the Proposal and on these Conditions.
2.2 The Contract constitutes the entire agreement between us and you. You acknowledge that you’ve not relied on any statement, promise, representation, assurance or warranty we’ve made which isn’t set out in the Contract.
2.3 Any samples, descriptive matter or advertising we use or issue, and any descriptions or illustrations contained in our advertising materials or on our website, are published for the sole purpose of giving an approximate idea of the Services described in them. They won’t form part of the Contract or have any contractual force.
2.4 Only these Conditions apply to the Contract and any other terms that you’d like to impose or incorporate, or which could be implied by trade, custom, practice or course of dealing, are excluded.
2.5 Any Proposal we give you won’t constitute an offer and will only be valid for 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 We will:
a) supply the Services to you in accordance with the Proposal in all material respects;
b) use all reasonable endeavours to meet any Milestones dates specified in the Proposal, but these dates are only estimates and time shall not be of the essence for performance of the Services; and
c) have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which don’t materially affect the nature or quality of the Services, and we’ll let you know if we’ll be doing this.
3.2 We warrant to you that the Services will be provided using reasonable care and skill.
4. YOUR OBLIGATIONS
4.1 You will:
a) ensure that the terms of the Order and any information you provide for the Proposal are complete and accurate;
b) co-operate with us in all matters relating to the Services;
c) provide us with access to your premises and any other facilities as reasonably required by us;
d) provide us with such data, information and materials as we may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
e) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
f) and if applicable, keep and maintain all data, databases, research tools, materials, equipment, documents and other property that belongs to us (“Listen + Learn Research Materials”) at your premises or on your IT systems in safe custody at your risk, maintain the Listen + Learn Research Materials in good condition until returned to us, and not dispose of or use Listen + Learn Research Materials other than in accordance with our written instructions.
4.2 It is your responsibility to ensure that any Customer Materials are free from viruses, Trojans or other malicious code. If you supply us with any Customer Materials that contain such code, then you will be liable to us for (i) any delay in our provision of the Services to you; and (ii) any losses (including loss of profits) that we may suffer as a result.
4.3 If we can’t perform any of our obligations under the Contract or we’re prevented or delayed in doing so by anything you do or don’t do or if you fail to perform any relevant obligation then:
a) we (without limiting our other rights or remedies) have the right to suspend performance of the Services until you remedy the default, and to rely on the default to relieve us from the performance of any of our obligations, to the extent the default prevents or delays our performance of any of our obligations;
b) we won’t be liable for any costs or losses that you incur which arise directly or indirectly from our failure or delay to perform any of our obligations as set out in this Condition 4.2; and
c) you shall reimburse us on written demand for any costs or losses we incur which arise directly or indirectly from such default.
5. CHANGE CONTROL
5.1 If either party wishes to change the scope of the Services, then it shall submit details of the requested change to the other in writing. We will then, within a reasonable time, provide you with a written estimate of:
a) the likely time required to implement the change;
b) any variations to our Charges, the Milestones, Deliverables or any other items in the Proposal arising from the change; and
c) any other impact of the change on the terms of the Contract.
5.2 If we determine at our discretion that there has been scope creep from the Proposal or if the Customer Materials or other information we are depending upon from you in order to provide the Services are late then we will submit a change request as per Condition 5.1. If we request a change to the scope of the Services, you won’t unreasonably withhold or delay consent to it.
5.3 If you’d like us to proceed with the change, we have no obligation to do so unless and until the parties have agreed in writing on the necessary variations to our Charges, the Proposal and any other relevant terms of the Contract to take account of the change.
6. CHARGES AND PAYMENT
6.1 The Charges for the Services shall be the amount set out in budget part of the Proposal. You’ll pay the Charges to us in two instalments of 50% each: one on the date that the Order is placed; and the other upon supply of the Deliverables at completion of the Services. On the two payment dates, we’ll invoice you for the Charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in Condition 6.2.
6.2 The Charges contained in the Proposal exclude:
a) the cost of hotel, subsistence, travelling and any other ancillary expenses we reasonably incur in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties that we require for the supply of the Services. We’ll invoice you for these expenses, materials and third party services at cost; and
b) VAT, which we’ll add to our invoices at the appropriate rate.
6.3 You’ll pay each invoice we submit:
a) within 30 days of the date of the invoice; and
b) in full and in cleared funds to a bank account that we nominate in writing, and time for payment shall be of the essence of the Contract.
6.4 If you fail to make any payment due to us under the Contract by the due date for payment, then you’ll pay interest on the overdue amount at the rate of 4% per cent per annum above HSBC Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You’ll pay the interest together with the overdue amount.
6.5 If you place an Order with us and we begin providing the Services to you and then there is a delay in your instructions which we need to carry out the Services, after one month of such delay we will stop providing the Services and you will pay us for any work carried out up until the date that we stop working. We won’t be liable for any resultant delay in the provision of the Services and may have to reschedule the Milestones when you provide us with the information that we need.
6.6 All payments payable to us under the Contract shall become due immediately on termination of the Contract, 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.
6.7 You’ll pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
7.1 All of Listen + Learn Research Materials are and remain our exclusive property and we’ll own all IPR in or arising out of or in connection with the Services. We’ll assign the copyright in the Deliverables to you when you’ve paid the Charges in full, subject to Condition 7.2.
7.2 You hereby agree that on termination of the Contract, you’ll license all rights in the Deliverables passing to you under Condition 7.1 to us free of charge and on a perpetual, non-exclusive, worldwide basis to such extent as is necessary to enable us to make reasonable use of the Deliverables after this Contract is ended.
7.3 You acknowledge that, in respect of any third party IPR, including that of a Data Supplier, we can’t pass the copyright in such IPR to you but instead we’ll license it to you on a non-exclusive, royalty-free, worldwide basis in order for you to use the Deliverables for your required purposes. Your use of any such third party IPR is conditional on us obtaining a written licence from the relevant licensor or Data Supplier on such terms as will entitle us to license such rights to you.
8. DATA PROTECTION
Both parties will comply with their respective obligations under the Data Protection Act 1998. To the extent that we are processing personal data that you supply to us as part of the Services:
a) warrant to us that you have satisfied the first data protection principle in respect of the processing of such personal data, and, in particular, where you wish to rely on consent as the relevant condition, that you have all necessary consents; and
b) indemnify us in respect of all costs, claims, damages and expenses we may suffer or become liable for as a result of acting upon your instructions in the processing of the data that you supply to us; and
a) will act only on your instructions in respect of such processing; and
b) will take appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data any against accidental loss or destruction of, or damage to, such personal data.
9.1 A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this Condition as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Condition 9 shall survive termination of the Contract.
10. LIMITATION OF LIABILITY
10.1 Our liability will not be limited by these Conditions for:
a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.2 Subject to Condition 10.1:
a) we won’t be liable to you for any delay in the provision of the Services caused by a Data Supplier, nor will we be liable for the accuracy, correctness or completeness of the data supplied by any Data Suppliers;
b) we won’t be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
c) our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount payable to us by you under the Contract.
10.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.4 This Condition 10 shall survive termination of the Contract.
11.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
a) the other party commits a material breach of any term 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 to do so;
b) 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 suspends or ceases to carry on all or a substantial part of its business;
c) 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;
d) 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 or an administrator or an administrative receiver is appointed over the other party; or
e) the other party’s financial position deteriorates to such an extent that in our opinion, your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
11.2 We (without limiting our other rights or remedies), may:
a) suspend provision of the Services under the Contract or any other contract between us and you if you become subject to any of the events listed in Condition b)) to Condition e), or if you fail to pay any amount due under this Contract on the due date for payment;
b) terminate the Contract:
i. with immediate effect if any of our Data Suppliers terminate their contract with us;
ii. with immediate effect by giving you written notice if you fail to pay any amount due under this Contract on the due date for payment; and/or
iii. by giving you one months’ written notice.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract for any reason our obligation to supply the Services shall cease and:
a) you will immediately pay us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we’ll submit an invoice, which will be for the Charges set out in the Proposal to the next applicable Milestone, and will be payable by you immediately on receipt;
b) you will return all of the Listen + Learn Research Materials and any Deliverables which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you’ll be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
d) Conditions which expressly or by implication survive termination shall continue in full force and effect.
13. FORCE MAJEURE
13.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.2 We won’t be liable to you as a result of any delay or failure to perform our obligations under this Contract as a result of a Force Majeure Event.
13.3 If the Force Majeure Event prevents us from providing any of the Services for more than four weeks, we’ll (without limiting our other rights or remedies), have the right to immediately terminate this Contract by giving you written notice.
14.1 Assignment and other dealings.
a) We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party or agent.
b) You won’t, without our prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post or by e-mail.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition a); if sent by pre-paid first class post, at 9.00am on the second Business Day after posting; or, if sent by e-mail, one Business Day after transmission.
a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.
b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose.
14.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by both parties.
14.8 Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
14.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).