This agreement is made on
20
(“
Agreement
”)
BETWEEN THE FOLLOWING PARTIES
(1)
GfK NOP Limited
, incorporated and registered in England and Wales with company number 2512551,whose
registered office is at 25 Canada Square, Canary Wharf, London, E14 5LQ, or one or more of its Affiliates
(“
GfK
”)
(2)
, a company registered in with registration no: and registered address is
(“
Client
”).
SUMMARY SHEET
NOW THEREFORE
in consideration of these promises and the terms set forth below, and for good and valuable
consideration, the parties hereto agree to enter into a contract for the services set out in the Proposal, which is formed
by and includes the following documents:
1.
The GfK Terms & Conditions of Service.
2.
The Proposal
.
3.
This Summary Sheet.
IN WITNESS WHEREOF
, the parties have caused their duly authorised representatives to execute this contract as of
the date first above written.
Signed on [DATE] ___ /___ /____
for and on behalf of
GfK NOP Limited
Signed on [DATE] ___ /___ /____
for and on behalf of
GfK TERMS & CONDITIONS OF SERVICE
These Terms and Conditions (“Terms”) apply to any Services undertaken by GfK NOP Limited (“GfK”) for you (“Client”) pursuant to an accepted Proposal. Acceptance of the Proposal shall be deemed to include acceptance of these T&Cs, which shall not be altered except as set forth below.
1 DEFINITIONS In these conditions:-
Affiliate: a person who is, from time to time, a subsidiary or holding company of either GfK or Client, or is a subsidiary of that party’s holding company, as those terms are defined in section 1159 of the Companies Act 2006.
Annual Fees: means the annual fees in respect of the Syndicated Studies.
Background IPR means any GfK (i) patent(s), copyright(s), trademark(s), service mark(s), trade secret(s) and/or proprietary right(s); and (ii) methods and systems it uses to provide the Services, including without limitation, sampling, research, and methods of process or questioning, research products, sample or panel database(s), systems of analysis, questions or questionnaire forms (unless provided by the Client), and completed questionnaires, as well as all computer software (including source code) or programs, models or systems, and analysis, used in GfK’s performance of the Services, whether or not such methodologies or software are patentable or copyrightable.
Concept Products: means Client’s new concepts, products, services or designs, where such products form part of the Services to be conducted by GfK survey interviewers.
Confidential Information: means all information whether of a technical or business nature, which is disclosed or provided by the party disclosing the information (“Disclosing Party”) to the party receiving such information (“Receiving Party”) during the term of this Agreement which is of a confidential or proprietary nature or which a reasonable person would believe should be treated as such, including but not limited to the Disclosing Party and the Disclosing Party’s client’s information, if applicable, technical information, designs, recipes, plans, programs, methods, systems, formulae, processes, technology, object code, source code, executable code, flow charts, devices, designs, machines, inventions, research or development projects, plans for future project development, financial information, sales practices, business plans, marketing and pricing plans and strategies, customers, suppliers and all other Confidential Information of every kind and character. In addition to information provided by the Disclosing Party in connection with the Proposal, Confidential Information also shall include analyses, compilations, studies or other documents prepared by the Receiving Party and/or its respective Affiliates that contain or otherwise reflect such information and may include (if applicable, Personal Data). Confidential Information shall not include any information that: (a) was publicly known and generally available to the Receiving Party and/or its Representatives prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and generally available after disclosure by the Disclosing Party through no action or inaction of the Receiving Party and/or its Representatives in breach of this Agreement; (c) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided such source is not known by the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing Party or another party with respect to such information; or (d) is independently developed by the Receiving Party without use of the Confidential Information, as shown by the Receiving Party's files and records or other evidence in the Receiving Party's possession.
Custom Research Deliverables: includes all survey findings and reports, all data and/or report information produced and all documents, products and materials as developed by GfK or its agents, contractors and employees as part of or in relation to the Custom Research Services in any form as set out in the Proposal. Custom Research Services: the services provided by GfK, which includes the provision of the agreed Deliverables and consists of the provision of custom market research services, whether ad-hoc or continuous market research projects and other associated services to be provided by GfK to the Client pursuant to the Proposal.
Deliverables: means the Custom Research Deliverables, the Syndicated Deliverables and any other deliverables provided by GfK as part of the performance of the Services as specified in the Proposal.
Fees: the fees (including any Annual Fees) as set out in the applicable Proposal.
Force Majeure Event: shall mean any acts, events, omissions or accidents beyond either of the parties’ reasonable control including but not limited to any of the following; Acts of God, flood, earthquake, windstorm or other natural disaster; war; terrorist attack, civil war, civil commotion or riots; fire, explosion or accidental damage; adverse weather conditions; interruption or failure of utility service, including but not limited to electric power, gas or water; any labour dispute, including but not limited to strikes, industrial action or lockouts and; non-performance by either of GfK suppliers or subcontractors.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Proposal: the proposal in whatsoever form provided by GfK to Client setting out the Services to be provided, including the survey confirmation.
Representatives: means any directors, officers, employees, advisors and/or agents, legal advisers or accountants of either of the parties or of their respective Affiliates.
Services: collectively the services to be provided by GfK to Client as set out in the Proposal, which may include Custom Research Services and/or the Syndicated Studies.
Start Date: means the date specified as being so in the Proposal, or if none specified, the earlier of the Client signing this Agreement or instruction by the Client to commence provision of the Services.
Syndicated Deliverables: means all survey findings and reports, all data and/or report information produced and all documents, products and materials as developed by GfK or its agents, contractors and employees as part of or in relation to the Syndicated Studies in any form as set out in the Proposal.
Syndicated Studies: means services provided by GfK, which are multi-client market research services in any form as set out in the Proposal. 2. FORMATION OF THE CONTRACT
2.1 Subject to any variation under Clause 14, these Terms are the only terms upon which GfK is prepared to deal with the Client in respect of the provision of the Services and they shall govern the Agreement to the entire exclusion of all other terms and conditions. No terms or conditions endorsed upon, delivered with or contained in the Client’s acceptance of the Proposal, or acknowledgement or acceptance of Client’s order by GfK, shall form part of the contract and the Client waives any right which it might have to rely on such terms and conditions. Any performance by GfK of the Services will constitute acceptance of these Terms and commencement of the Agreement.
2.2 Unless otherwise expressly stated in writing, the Proposal, including all other quotations and estimates provided to Client by GfK will not constitute an offer, capable of acceptance, but are merely invitations to treat. All quotations in respect of Fees are valid for a maximum period of 90 days starting from the date of the original quotation. Notwithstanding the foregoing, GfK reserves the right to invalidate any Fee quotation if within a period of 30 days from the date of the original quotation if a currency fluctuation materially similar occurs to that referred to in clause 5.4 below.
2.3 It is the Client’s sole responsibility to ensure that where any of its employees instruct GfK to provide the Services, that such representative is an authorised representative of Client and unless otherwise instructed in writing by the Client, GfK shall be entitled to rely on the original instruction.
3. THE SERVICES
3.1 GfK warrants that the Services performed and Deliverables delivered pursuant to this Agreement shall: (a) be provided by applying correct methodological concepts and scientific analysis of the relevant research; (b) materially conform to the specifications set out in the Proposal and; (c) be provided in accordance with generally accepted professional industry standards and practices for survey research including any guidelines or codes of conduct published by the MRS (Market Research Society) and ESOMAR (The World Association of Research Professionals) and the international standards ISO 9001:2008 Quality Assurance and ISO
20252:2012 market, opinion and social research. GfK shall use reasonable endeavours to deliver the Deliverables, or perform the Services within the agreed timescales, but time shall not be of the essence in that regard.
3.2 If 30 days immediately following GfK’s performance of any portion of the Services, the Client notifies GfK of any material breach of the warranty set out in clause 3.1 above, and GfK agrees that a breach of warranty has occurred, GfK shall re-perform the relevant portion of the Services until they materially conform with the foregoing warranty. If GfK is unable to re-perform such Services, within a reasonable period of time, to materially conform to such warranty, or if Client and GfK reasonably determine that such re-performance is impracticable, GfK shall promptly refund to Client the amounts paid in respect of such portion of the Service in question.
3.3 Client may require GfK to conduct Services involving Concept Products (“Concept Testing”). Client acknowledges and agrees that where its survey interviewers are asked to expose, reveal, disclose or describe Confidential Information (“Disclosure”) as part of such Concept Testing to survey respondents, GfK bears no responsibility in relation to such Disclosure. Client hereby waives and releases GfK from and against any and all, loss, claim or liability resulting from or related to Disclosure to GfK survey respondents in connection with Concept Testing.
3.4 Where Client requires GfK to conduct Concept Testing, which involve GfK survey respondents examining, trialling or otherwise using Concept Products, Client will indemnify and keep GfK and its employees, affiliates, officers, directors and agents indemnified in full from and against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by GfK arising out of or in connection with any claim against GfK by a third party for death, personal injury, damage to property or under the Consumer Protection Act 1987 arising out of or in connection with any description, presentation, use examination or trialling of such Concept Product, whether or not Client is the manufacturer, distributor or agent in respect of such Concept Product.
3.5 Subcontractors - Client acknowledges and agrees that GfK may subcontract one or more portions of the execution of the Services to be performed hereunder, to its Affiliates or to a third party or third parties, without prior advance written notice to, or consent from, Client. GfK shall use its all reasonable efforts to ensure that the quality of Services and Deliverables supplied by any subcontractor are substantially equal to those GfK would normally provide or supply and will otherwise materially conform to the terms of this Agreement. GfK shall be responsible for the performance of any Services by such Affiliates or other third parties and solely responsible for all payments due to such third party.
4. THE TERM AND CANCELLATION OF THE SERVICE
4.1 This Agreement shall commence upon the Start Date and subject to earlier termination under clause 11 and as set out in clauses 4.1 and 4.2 below, this Agreement shall continue until all the Services being performed under it are complete.
4.2 Custom Research Services– Notwithstanding the provisions of clause 4.1 above, the Client may terminate the provision of the Custom Research Services at any time by providing GfK with at least two (2) weeks’ notice in writing, PROVIDED THAT:
(a) the Client pays that proportion of the fees (as set out in the Proposal) as represents all work carried out, expenses incurred and financial commitments entered into by GfK as at the date of termination of the Service, such proportion to be calculated by GfK at its sole discretion; and
(b) Client indemnifies GfK in full for any loss, liability or expense arising from such early termination. Such costs shall be reasonable in the circumstances and shall not in any event exceed the total fees payable for the Service in question.
4.3 Syndicated Studies – The provision of any Syndicated Studies Services shall continue for an initial period of twelve (12) months (“Initial Period”). Either party may terminate this Agreement by giving the other at least six (6) months’ prior written notice to expire at the end of the Initial Period. Subject to earlier termination, this Agreement shall continue following the end of the Initial Period for consecutive periods of twelve (12) months at a time (each a “Rolling Period”), unless either party terminates it by giving the other at least six (6) months’ notice in writing to expire at the end of any Rolling Period.
5. PAYMENT AND THE FEES
5.1 In consideration for the performance of the Services and provision of the Deliverables, Client shall pay GfK the Fees as set out in the applicable Proposal. The Fees are exclusive of VAT, which shall be charged, if applicable and the Client shall pay all invoices in pounds sterling, unless otherwise specified in the relevant Proposal. Any withholding or service tax deducted from remittance of payments in respect of GfK invoices will be automatically charged back to the Client. If GfK subsequently receives a refund in respect of such tax charge, GfK shall refund an amount equal to the tax refund back to the Client. 5.2 Unless specifically stated otherwise in the Proposal, the Fees payable in respect of the Services will be charged as follows: Client shall pay all invoices within thirty
(30) days of the date of the invoice, unless the Client has disputed the validity of the invoice as set out in clause 5.3 below
(a) Custom Research Services – 50% is chargeable on or around the Start Date and 50% is chargeable upon completion of the Services.
(b) Syndicated Studies – 25% of the Annual Fees are due on or around the Start Date and the remainder of the Annual Fee shall be charged upon the first day of each quarter thereafter for the remainder of the Initial Period or relevant Rolling Period, as the case may be.
5.3 If the Client validly disputes any part of an invoice, it shall (i) pay the undisputed portion no later than the due date; and (ii) notify GfK within 14 days of receipt the invoice of such dispute, giving full details as to the nature of such dispute.
5.4 Increases in the Fees Custom Research Services - GfK uses the best information available when estimating the incidence rate for a behaviour, but GfK provides no guarantee of any incidence rate. If the actual net incidence rate and/or the interview length differs significantly from the estimated net incidence rate or interview length as provided by Client or developed by GfK and agreed to by Client, GfK will increase the price of the survey based on the actual net incidence rate and interview length, provided that GfK shall notify the Client of such increase as soon as reasonably practicable.
Syndicated Studies – Subject to any currency fluctuations as set out below, the Fees will be remain fixed for the duration of the Initial Period (or relevant Rolling Period), thereafter they will be reviewed annually by GfK giving Client at least three (3) months’ written notice (or other date as may be agreed between the parties).
Currency fluctuations - If due to any currency fluctuation GfK suffers a loss more than a five percent (5%) of any portion of the Fees, GfK reserves the right to charge the Client the difference between the payment actually received by the Client for the portion of the Service in question and the amount in pounds sterling of the payment that would have been received had the currency fluctuation not occurred.
5.5 The Client shall not be entitled to set off against any amount payable under this Agreement any amount due by GfK to the Client under this Agreement or any other agreement.
5.6 GfK reserves the right at any time in its sole discretion to demand security for payments before continuing with the provision of the Service or delivering any of the information to the Client, notwithstanding any subsisting agreement to provide credit to the Client or any provision to the contrary contained in these Terms. 6. INTELLECTUAL PROPERTY AND COPYRIGHT
6.1 Custom Research Services - Subject to the provisions set out in clauses 6.3 and 6.4, or as may be specifically set out in the Proposal, the copyright in the Custom Research Deliverables shall transfer to the Client on the later of completion of delivery or when GfK has received in full all sums due to it in respect of the Deliverables in question. Notwithstanding the provisions of this clause 6.1, Client acknowledges and agrees that the Custom Research Deliverables are created exclusively for Client and the GfK Background IPR are an integral part of the Custom Research Deliverables. Accordingly, Client shall comply with the terms of the licence and use of the Custom Research Deliverables as set out in Clauses 6.4 and 7.
6.2 Syndicated Studies - GfK shall at all times retain sole and exclusive ownership rights in all Syndicated Deliverables and any part thereof, including for the avoidance of doubt any data used by GfK in connection with the Syndicated Studies and the Syndicated Deliverables.
6.3 Background IPR - GfK shall at all times retain sole and exclusive ownership rights in all the Background IPR. For the avoidance of doubt (and notwithstanding any other provision set out in this Agreement), GfK shall own all right, title and interest in any improvements, enhancements and adaptations of the Background IPR. 6.4 Licence - GfK hereby grants to Client a non-exclusive right and licence to use and in connection with such use, to copy and distribute; (i) any Background IPR (as
included in any Deliverables); and (ii) the Syndicated Deliverables. Client may not reverse engineer any of Background IPR or Syndicated Deliverables in any manner, nor may Client modify or reuse any Background IPR or Syndicated Deliverables in any manner not specifically set out in this Agreement or the Proposal.
The Background IPR, Syndicated Deliverables and Custom Research Deliverables are for the exclusive use of Client and any of its Affiliates’ within its’ own business. Save for any of its Affiliates, Client may not disclose, transfer, publish, sell, distribute, copy or reproduce (in full or part) any Syndicated Deliverables or Custom Research Deliverables for or to any other third party. Further, Client may not sub-licence any rights to use the Background IPR or Syndicated Deliverables for or to any third party (including to any of its Affiliates). Client shall ensure that each of its Affiliates who access and/or use the Background IPR, Syndicated Deliverables or the Custom Research Deliverables will comply with the terms of this clause. Client shall be solely responsible for acquiring and complying with the terms of any licence to third party software required for Client’s use of the Deliverables.
6.5 Indemnity for breach of licence - Subject to a cap in aggregate of one million pounds (£1m), Client will indemnify and keep GfK and its employees, affiliates, officers, directors and agents indemnified in full from and against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by GfK arising out of or in connection with any breach of the licence set out in clause 6.4 above.
6.6 Indemnity for third party claim on Intellectual Property Rights – Subject to a cap in aggregate of one million pounds (£1m), GfK will indemnify and keep Client and its employees, affiliates, officers, directors and agents indemnified in full from and against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Client arising out of or in connection with any claim (“IPR Claim”) brought against the Client for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables. The indemnity provided under this clause 6.6 shall not apply to the extent that the IPR Claim arises out of or results from; (a) the negligence or intentional misconduct of Client, Affiliates or their respective employees and agents; or (b) material breach of the representations, warranties, covenants, and agreements of Client to GfK, (c) GfK’s use of materials, information, intellectual property, or Confidential Information supplied or provided by Client to GfK for use in performing the Services and/or incorporation into any Deliverables; or (d) Clients’ use of the Services and/or Deliverables in manner inconsistent with the use permitted by GfK in connection with this Agreement.
6.7 The Client shall: (a) notify GfK in writing of any claim against it in respect of which it wishes to rely on the indemnity for an IPR Claim; (b) allow GfK, at its own cost, to conduct all negotiations and proceedings and to settle the IPR Claim, always provided that GfK shall obtain the Client's prior approval of any settlement terms, such approval not to be unreasonably withheld; (c) provide GfK with such reasonable assistance regarding the IPR Claim as is required by GfK, subject to reimbursement by GfK of the Client's costs so incurred; and (d) not, without prior consultation with GfK, make any admission relating to the IPR Claim or attempt to settle it, provided that GfK considers and defends any IPR Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Client into disrepute.
7. CONFIDENTIALITY
7.1 Each party undertakes that it shall not at any time during this Agreement, and for a period of two years after its termination, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party (except to any of either party’s respective Affiliates).
7.2 Each party may disclose the other party's Confidential Information to its Representatives who need to know such information for the purposes of carrying out the party's obligations under this Agreement.
7.3 Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 7 and as may be required by law, court order or any governmental or regulatory authority.
7.4 No party shall use any other party's Confidential Information for any purpose other than to perform its obligations under this Agreement.
7.5 Unless GfK has provided its prior written approval, Client shall maintain the confidentiality of all Deliverables provided by GfK to Client pursuant to this Agreement. In the event Client proposes to use Deliverables from a Deliverable in connection with any advertising or promotional copy, GfK shall have the right to review and approve such advertising material or promotional copy to ensure that the claims made in such materials are adequately supported by the data obtained in connection with such Deliverable. Client may not refer to GfK in any marketing and/or publicity materials released by Client without GfK’s prior written consent. 7.6 Client acknowledges that GfK has spent significant time and resources recruiting individuals who have met necessary or desirable verification requirements and
have been selected to join or opted in to GfK’s panels (“Panel Members”) and that any Panel Member personal data is the Confidential Information of GfK and Client shall not: (a) decompile, reverse engineer or disassemble any portion of Panel Member personal data, or (b) for its own or for a third party’s account directly or indirectly recruit, solicit or otherwise contact any Panel Member.
8. PERSONAL INFORMATION AND DATA PROTECTION
8.1 Each party (“Disclosing Party”) may disclose Personal Data (as defined under the Data Protection Act 1998) to the other (“Receiving Party”) in connection with their respective obligations under this Agreement. With respect to ‘Personal Data, the Receiving Party or any of its Affiliates or Representatives may receive under this Agreement, the Receiving Party hereby represents, warrants and covenants to Disclosing Party that:
(a) Receiving Party will not use the Personal Data or any related personally-identifiable information or any information obtained, received, or collected in connection with their respective obligations under this Agreement contemplated hereunder for any purpose other than as is strictly necessary for the performance of their respective obligations under this Agreement and shall only process such Personal Data in accordance with the Data Protection Act 1998 (the “Act”);
(b) Receiving Party will: (i) put appropriate technical and operational processes and procedures in place to safeguard against unauthorised or unlawful processing of the Personal Data; (ii) protect the security, integrity and confidentiality of the Personal Data and will not permit any unauthorised access to, or use, disclosure, publication or dissemination of, the Personal Data. Receiving Party agrees to use the same degree of care and scrutiny as Receiving Party uses to protect and secure its own Confidential Information and customer information, but in no event will Receiving Party use less than a commercially reasonable degree of care.
(c) Prior to disclosing any Personal Data to any third party (including those that may be a Representative of the Receiving Party), the Receiving Party shall enter into an agreement (“Third Party Agreement”) with such third party obligating such third party to comply with the terms of these clauses 8.1 and 8.2 and other relevant terms in this Agreement. The Third Party Agreement shall only contain terms that are consistent with Principles 7 and 8 of the Act and with this Agreement. The Receiving Party will not enter into a Third Party Agreement unless (i) it has first performed a due diligence review on such third party; and (ii) at all if there are circumstances in which it knows or reasonably should have known that such third party would pose a material risk to the security, integrity or confidentiality of the Personal Data.
(d) GfK may transfer personal data to any third party operating outside of the European Economic Area, provided that it has first entered into a contract containing appropriate terms to ensure Principle 8 has been complied with in respect of such transfer.
(e) The Receiving Party will, and will cause all its Representatives to comply with the terms of these clauses 8.1 and 8.2.
8.2 In the event of a breach of the security of Receiving Party’s systems, servers and/or facilities, or any unauthorised access to, or use and/or disclosure of, the Personal Data (“Security Breach”), while in Receiving Party’s possession, Receiving Party will promptly notify Disclosing Party, but in no event later than twenty-four (24) hours, after Receiving Party first learns of or discovers the Security Breach. In the event of a Security Breach, Receiving Party will (i) use its best efforts to mitigate any harmful effect(s) of the Security Breach; (ii) use commercially reasonable efforts to make available sufficient resources and data for Disclosing Party to determine the full impact and root cause of the Security Breach; and (iii) fully co-operate with Disclosing Party in investigating the cause(s) of any Security Breach and in providing notice to affected individuals and/or the appropriate legal and/or regulatory agencies, as required by applicable laws and codes of practice. 8.3 Client acknowledges and agrees that GfK shall not be required to disclose any personal data relating to survey respondents to Client, except in specifically
described research situations, such as validation or modelling, permitted by and in accordance with the applicable laws and market research guidelines. Client hereby agrees to maintain the confidentiality of the identity of any survey respondents and any personal data disclosed to it.
8.4 Client represents and warrants that it shall only disclose to GfK personal data about its customers and consumers in material conformance with (i) any statement or policy that Client provides to such data subjects concerning the use and disclosure of such personal data; and (ii) all applicable laws. 8.5 Email verification: The Client hereby warrants, represents and undertakes to GfK that, with respect to any list of customers or other individuals that the Client
provides to GfK for the purpose of sending invitations to participate in any survey research on behalf of Client, it: (a) shall have first obtained verifiable consent from every individual included in such list specifying that they have agreed to receive emails inviting them to participate in survey research; (b) shall provide to GfK upon request the date, time, method of contact and IP address (if by email) by which Client obtained such consent from, as well as the nature of the Client's relationship with, each such individual; and (c) has not received any withdrawal or opt-out of such consent and agrees immediately to notify GfK if it does.
8.6 Each party (“Indemnifying Party”) shall indemnify the other (“Indemnified Party”) in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Indemnified Party as a result of or in connection with any claim brought against Indemnified Party arising out of Indemnifying Party’s breach of clauses 8.1 to 8.5 inclusive. The provisions of this clause 8.6 shall be subject to a cap in aggregate of one million pounds (£1m).
8.7 GfK reserves the right to collect e-mail addresses from respondents on non-Business CATI and CAPI surveys where the sample has not been provided by the Client, for the purpose of further participation in market research surveys carried out by GfK.
9. LIMITATION OF LIABILITY
9.1 Nothing in this Agreement excludes or limits the liability of GfK in respect of; (a) death or personal injury caused by its negligence (including negligence of its employees, agents or contractors); (b) fraud and/or fraudulent misrepresentation; or (c) liability which may not otherwise be limited or excluded under applicable law. Save for the indemnities under this Agreement, which shall be limited to the amounts set out in the relevant provisions, GfK’s entire liability to Client arising out of or in connection with this Agreement whether arising from contract, tort, negligence or otherwise shall be limited in aggregate to an amount equal to the Fees received by GfK from Client for the portion of the Service in question. GfK shall not be liable to Client for any (a) special, indirect or consequential loss or damage; (b) pure economic loss, costs damages or charges; (c) loss of profits; (d) loss of revenue; (e) loss of contracts; and (f) loss of business and/or goodwill, howsoever it arises out of or in connection with this Agreement.
9.2 No action, regardless of form, arising out of this Agreement may be brought by Client more than two years after the cause of action arose (or when Client should have been reasonably aware of such cause of action) provided that this clause shall not apply to any claim alleging a breach of either party’s confidentiality and proprietary rights in the Services, which shall have the full time period allowed under UK law.
10. WARRANTIES
10.1 Except as expressly provided in this Agreement, in relation to the Services (including the Deliverables), GfK makes no representations, express or implied (including any warranty as to satisfactory quality, or fitness for a particular purpose); and without limiting the generality of the foregoing, Client expressly acknowledges and agrees that GfK provides no warranty in relation to the survey response rates. All figures contained in GfK’s reports that are estimates derived from sample surveys should be viewed as subject to the normal limits of survey error. GfK does not predict or assure any particular substantive results of its research in advance, nor does GfK accept any liability for (i) Client’s interpretation of GfK’s reports or of other data furnished to Client by GfK, (ii) any errors caused by errors in data provided by Client to GfK, or (iii) resale of survey results or other data by Client. If the Services include the testing of new products, concepts, strategies, advertising campaigns or the like, GfK will have no liability if survey respondents breach the confidentiality under which that testing is conducted. Neither GfK nor its employees will be responsible for any inadvertent loss, theft or damage of or to Client’s sample products or other tangible property which Client may provide to GfK.
11. TERMINATION AND SUSPENSION
11.1 Without affecting any of its rights or remedies, either party to this Agreement may terminate this Agreement with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or any of the events set out in clause 11.2 occur.
11.2 The following events constitute rights of termination for a party under clause 11.1 (a) 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 (b) 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 other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (c) 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 (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (d) 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 (being a company); or (e) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; or (f) 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 (g) 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 on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or )h) 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 clause 11.2(a) to ((h) (inclusive); or (i) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.3 GfK retention periods: Unless otherwise agreed in the Proposal, GfK shall keep all copies of Deliverables for a period of two (2) years following completion of the Service in question and any personal data collected or held pursuant to a Service for a period of one (1) year following completion of the Service in question. 12. NON-SOLICITATION
12.1 Neither party shall, for a period of six (6) months from the Start Date, (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of that party, any employee of the other party who is employed or engaged in any services which are relevant to the Services. A party shall not be in breach of this clause 12 as a result of running a national advertising campaign open to all comers and not specifically targeted at any of the staff or the customers of the other party. If either party commits any breach of clause 12, the breaching party shall, without prejudice to any other rights or remedies of the claiming party, on demand, pay to the claiming party a sum equal to six (6) months’ basic salary that was payable by the claiming party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming party in replacing such person.
13. FORCE MAJEURE
13.1 GfK shall not be liable for any delays in or failure to perform its obligations arising from a Force Majeure Event. 14. MISCELLANEOUS
14.1 Variation - No variation of this Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of its parties. Waiver - No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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. Severance - If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties to the Agreement shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves such parties' original commercial intention. Entire Agreement - This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement. Assignment – Neither party shall, without the prior written consent of the other (not to be unreasonably withheld or delayed) assign or transfer, all or any of its rights or obligations under this Agreement, save that either party may assign, novate or transfer to any of its respective Affiliates, or successor in business, provided that such Affiliate or successor agrees in writing to be bound by all terms and conditions of this Agreement. Notices - A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party. Third Party Rights - A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. Governing law and jurisdiction - This Agreement, 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. The parties to this Agreement 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims).
