1.1 The following definitions and rules of interpretation apply in this Agreement:
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A ‘person’ includes a natural person, or corporate or unincorporated body (whether or not having separate legal personality).
1.4 Where the context so requires, words in the singular shall include the plural and vice versa, and words denoting one gender shall include all genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and includes any subordinate legislation in force made under it
1.5 If there is any conflict or direct inconsistency between any of the documents comprising this Agreement, they will prevail according to the following order of precedence: (i) the Order (but only to the extent of such direct inconsistency); and (ii) these terms and conditions.
1.6 Any words following the terms including, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.7 Except where stated otherwise, a reference to ‘writing’ or ‘written’ does not include fax or email.
2.1 Untold Insights shall provide the Services to the Client on the terms and conditions of this Agreement from the Kick-Off Date.
2.2 This Agreement shall run for the Term, unless terminated sooner in accordance with clause 11.
2.3 Any dates specified in any Order shall be estimated only and time shall not be of the essence in this Agreement.
3.1 Untold Insights warrants and undertakes that: (a) it has full power and authority to enter into this Agreement; (b) it shall perform the Services with reasonable skill and care, using suitably qualified personnel, to a standard no less than that to be reasonably expected of a competent research agency of similar size and resources; and (c) the use by the Client of any Created Materials (but excluding any IPRs in any Client Materials incorporated in the Created Materials) in accordance with this Agreement and for the purposes set out in the Order will not infringe the copyright of any third party.
3.2 Untold Insights hereby indemnifies the Client against any losses, costs or expense incurred by the Client as a result of breach by Untold Insights of its warranty in clause 4.1(c).
3.3 Save to the extent expressly agreed in an Order, the relationship between the parties is non-exclusive and Untold Insights shall therefore be entitled to provide any services or deliverables the same or similar to the Services (but for the avoidance of doubt, only without using any Client Materials) to any third party subject always to clause 9 (Confidentiality).
3.4 Subject to clause 10.2, Untold Insights shall not be liable for: (a) any loss or damages arising as a result of any information or materials supplied or approved by the Client; or (b) any loss or damages arising from the withdrawal or alteration of any third-party product or service.
4.1 The Client warrants that: (a) it has full power and authority to enter into this Agreement; (b) the Client Materials will not, when used in accordance with this Agreement and any written instructions given by the Client, infringe any third party Intellectual Property Rights; (c) to the best of its knowledge and belief, the Client Materials will comply with all applicable laws and regulations; (d) the Client Materials are accurate and complete; and (e) it is the beneficial owner of, or is entitled to provide Untold Insights with, the Client Materials.
4.2 The Client undertakes to: (a) provide Untold Insights with full and clear instructions as to its requirement for the Services and all information, materials and assistance required for the proper performance of the Services; (b) promptly supply to Untold Insights (at no charge) any Client Materials reasonably required by Untold Insights or otherwise necessary to provide the Services and shall ensure that it has all rights and licences in place to enable use by Untold Insights of all Client Materials; (c) use the Services only for the purposes for which they were provided, and not modify or alter any material or information provided by Untold Insights without Untold Insights’s written consent; and (d) keep Untold Insights informed of any matters related to the Client which will, or could, have an impact on Untold Insights’s performance of the Services.
4.3 If the Client does not fulfil its obligations under or in connection with this Agreement (including its payment obligations), then to the extent that such failure prevents Untold Insights from performing any Services in accordance with this Agreement, Untold Insights will be relieved of its obligations to the Client, and Untold Insights shall not be liable for any losses, costs or expenses incurred by the Client as a result of any such failure.
5.1 In consideration of the provision of the Services by Untold Insights, the Client shall pay the Fees set out in the Order.
5.2 Untold Insights will invoice the Client as set out in the Order. The Fees will be subject to VAT, which will be charged to the Client at the prevailing rate.
5.3 In addition to the Fees, the Client shall reimburse Untold Insights for its reasonable Expenses. If Untold Insights is required to pay more than £500 at any one time for any Expenses, Untold Insights will seek written approval (not to be unreasonably withheld) from the Client in advance of incurring such Expenses.
5.4 Untold Insights reserves the right to invoice the Client for any costs reasonably incurred by Untold Insights as a result of delays by the Client in performing any of the Client’s obligations under this Agreement.
5.5 The Client shall pay Untold Insights, in full and in cleared funds, within 30 days of the date of each invoice.
5.6 In event that the project is cancelled or this agreement terminated following acceptance, we will charge you an amount equal to the greater of:
10% of the total project fee or £2,000 (whichever is lower) if the project is cancelled before commencement; or a fee based on work undertaken up to the date of cancellation, calculated by incorporating both expenses incurred and estimated time committed to date, which shall be payable in accordance with clause 5.
5.7 If any payment of the Fees or Expenses is subject to tax (whether by way of direct assessment or withholding at its source), Untold Insights shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to Untold Insights of the Fees and Expenses after tax in respect of the payment is the same as it would have been were the payment not subject to such tax.
5.8 If Untold Insights is required to purchase anything other than in pounds sterling, it shall charge the Client at the exchange rate in operation on the date on which Untold Insights makes the purchase. If Untold Insights is required to invoice the Client other than in pounds sterling, the Fees shall be calculated in pounds sterling, and shall be charged to the Client based on the exchange-rate in operation on the date on which Untold Insights issues the invoice.
5.9 Notwithstanding clause 5.5, all sums payable to Untold Insights under this Agreement shall become due immediately on its termination.
6.1 Untold Insights enters into contracts with third party suppliers in respect of Services in accordance with such suppliers’ standard or individual conditions and contracts (“Third Party Contracts”).
6.2 Provided that Untold Insights has notified the Client of any significant restrictions or contract terms contained in such Third Party Contracts: (a) the Client hereby acknowledges that its right to use or otherwise benefit from any Services or deliverables acquired under such Third Party Contracts shall be as set out in such Third Party Contracts; (b) any charges or liabilities (to the extent caused by an act or omission of the Client or its affiliates or any third party acting for or on its behalf) for which Untold Insights is liable under such Third Party Contracts (including cancellation payments) shall be the responsibility of the Client; and (c) the Client hereby indemnifies, and keeps indemnified, Untold Insights against any losses, costs and expenses caused by any act or omission of the Client which puts Untold Insights in breach of any such Third Party Contracts.
6.3 Untold Insights shall provide the Client with a copy of any relevant Third Party Contract if requested to do so and if authorised by the relevant third party.
7.1 Untold Insights acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Services) shall remain vested in the Client or its licensors. The Client hereby grants to Untold Insights a non-exclusive licence during the Term to use the Client Materials solely for the purposes of providing the Services.
7.2 Subject to the remaining provisions of this clause 8 and subject to Untold Insights receiving payment of all Fees attributable to the Created Materials Untold Insights hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights in the Created Materials that are capable of being assigned together with the right to sue for past infringement of the Intellectual Property Rights in the Created Materials.
7.3 The Client acknowledges that all Intellectual Property Rights in the Untold Insights IPRs shall be owned by and remain the property of and vested in Untold Insights. Subject to Untold Insights receiving payment of all Fees attributable to the Untold Insights IPRs licensed under this clause 8, Untold Insights hereby grants to the Client a licence to use such Untold Insights IPRs as are included in any materials provided by Untold Insights for the period of time and for the purposes set out in the Order.
7.4 The Client shall not, nor knowingly allow anyone else to, copy, decompile, modify or reverse engineer any Untold Insights IPRs, without Untold Insights’s prior written consent.
7.5 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 7.3.
7.6 Prior to delivery of any Deliverables, Untold Insights shall obtain such licences or consents in respect of Third Party Materials as shall be necessary in order that the Client can use such Third Party Materials for the purposes set out in the Order. Untold Insights shall notify the Client of any restrictions on usage and any other contractual restrictions arising in respect of such Third Party Materials, and the Client hereby indemnifies, and keeps indemnified, Untold Insights against any losses, costs and expenses suffered by the Untold Insights as a result of the Client or its Affiliates breaching any such restrictions.
7.7 Untold Insights agrees, at the Client’s request and expense, to take all such actions and execute all such documents as are necessary (in the Client’s reasonable opinion) to enable the Client to obtain, defend or enforce its rights in the Deliverables, and shall not do or fail to do any act which would or might prejudice the Client’s rights under this clause 8.
7.8 Notwithstanding any of the above and save as otherwise expressly provided for in the Order:
(a) be able during and after the Term to use any Deliverables which have been broadcast, published, distributed or otherwise made available to the public, and the Client’s name and logo for the purposes of promoting its work and its business including on Untold Insights’s website, in credentials pitches and in its showreel. Any other use by Untold Insights shall be subject to the Client’s prior approval; and
(b) retain all know-how obtained in connection with the Services.
7.9 During the Term, if Untold Insights is asked to take part in a competitive pitch or other similar process for the Client, then notwithstanding any of the previous provisions of this clause 8, Untold Insights shall retain ownership of all Intellectual Property Rights in any materials forming part of the pitch process, save to the extent that Untold Insights is successful in such pitch and the parties agree that such materials will be used in accordance with Services to be provided under the Order.
7.10 For the avoidance of doubt, Untold Insights shall not be liable under or in connection with this Agreement for any modifications, adaptations or amendments to any Deliverables made by the Client or by a third party on the Client’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Client and/or its Associates.
8.1 Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
8.2 Confidential Information shall include any document marked “Confidential”, or any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
8.3 Confidential Information shall exclude information which: (a) at the time of receipt by the recipient is in the public domain; (b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; (c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or (d) is already known to the recipient before receipt hereunder.
8.4 Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.
8.5 Each of the parties undertakes to disclose the other party’s Confidential Information only to those of its Associates to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement.
8.6 The Client acknowledges that nothing in this Agreement shall affect Untold Insights’s right to use as it sees fit any general intelligence gained by Untold Insights in the course of its appointment.
8.7 Neither party shall be in breach of this clause 8 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that, to the extent practicable and permissible, the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
8.8 The terms of and obligations imposed by this clause 9 shall survive the termination of this Agreement for any reason.
9.1 Subject to clause 9.2, Untold Insights’s maximum aggregate liability under or in connection with this Agreement: (a) whether in contract, tort (including negligence) or otherwise, but excluding under any indemnity, shall in no circumstances exceed the lower of (a) £1,000,000; and (b) the amount paid or payable by the Client to Untold Insights in the 12 month period preceding any event giving rise to liability; and (b) in the case of any indemnity contained in this Agreement, shall in no circumstances exceed £1,000,000.
9.2 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
9.3 Subject to clause 9.2, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement (and including for the avoidance of doubt any indemnity contained in this Agreement) for: (a) any loss (whether direct, indirect or consequential) of profits, sales or business, agreements or contracts, anticipated savings or goodwill; (b) loss of use or corruption of software, data or information; or (c) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.4 Where one party (“Indemnifying Party“) agrees to indemnify and keep the other party (“Indemnified Party”) indemnified under this Agreement, the Indemnified Party shall comply with the following process in the event that a third party claim arises: (a) the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim; (b) the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party; (c) the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim; (d) the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party’s cost and expense; and (e) if within ninety (90) days after the Indemnifying Party’s receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party’s expense undertake the defence, compromise or settlement of the claim as it sees fit.
10.1 Each party warrants to the other that it complies and will continue to comply with the terms of any applicable Data Protection Legislation and any other relevant data protection laws, legislation and regulation. For the purposes of this clause 10, “personal data” and “processes” shall have the meanings given under Data Protection Legislation.
10.2 Where Untold Insights, or its Associates, process personal data on behalf of the Client, then Untold Insights shall, and shall procure that its Associates shall: (a) process such data solely in accordance with the Client’s instructions from time to time and in accordance with its duties under Data Protection Legislation and the Untold Insights Privacy Policy; and (b) adopt and maintain reasonably appropriate security and organisational measures against unauthorised, unlawful processing, accidental loss or destruction of such data and take reasonable steps to ensure compliance with those measures.
10.3 The Client warrants and undertakes that it has all necessary rights to provide personal data to Untold Insights and to require Untold Insights to process personal data on its behalf.
11.1 Subject to clause 11.3, either party may terminate this Agreement for convenience on 90 days’ written notice.
11.2 Subject to clause 11.3, without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if the other party: (a) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment; (b) commits a material breach of this Agreement and (if such a breach can be remedied) fails to remedy it within 30 days of being notified in writing of the breach; (c) suspends (or threatens to suspend) payment of its debts or the continuation of all or a substantial part of its business, is unable or deemed unable to pay its debts as they fall due, begins negotiations with any class of its creditors with a view to rescheduling any of its debts, is the subject of a court order for winding-up, has a receiver appointed over its assets (or entitles any person to appoint one), or enters into any compromise or arrangement with its creditors or is the subject of a notice, resolution or order for or in connection with its winding-up (other than for the sole purpose of a solvent amalgamation or solvent reconstruction); or (d) 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 those outlined in clause 11.2(c).
11.3 On termination of this Agreement for any reason: (a) the Client shall immediately pay Untold Insights for all Untold Insights’s outstanding unpaid invoices, and, in respect of Services performed and Expenses incurred but not yet invoiced or to which Untold Insights is committed (including, but not limited to any cancellation charges imposed by its suppliers), Untold Insights may submit invoices, which shall be payable immediately on receipt; (b) the accrued rights and liabilities of the parties as at termination, and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected; and (c) Untold Insights shall provide the Client with any Survey Data in a standard, readable format as determined by Untold Insights in its sole discretion.
11.4 On termination of this Agreement, clauses 8, 9, 11 and 12 shall survive and continue to have full force and effect.
12.1 During this Agreement and for 12 months after its termination, neither party shall, without the other party’s written consent, solicit or entice, or attempt to solicit or entice (or encourage a third party to solicit or entice), any person who, at any point in either the preceding six months or the six months before termination (as applicable), was employed or engaged by the other party in the provision or receipt of the Services other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
12.2 A party recruiting a person in breach of clause 13.1 above shall immediately pay to the other party a sum representing 30% of the gross annual salary of the person recruited (calculated in relation to the salary that the employee was earning while employed by the non-defaulting party). If, for reasons of confidentiality, Untold Insights requires the employee not to work during the notice period, the Client will additionally pay Untold Insights a sum representing the salary payable in respect of the unfulfilled portion of the notice period.
13.1 A party shall not be in breach of this Agreement, or be liable for any failure or delay in performance of any obligations under this Agreement (except in the case of a failure to pay), where such failure or delay arises or is attributable to acts, events, omissions or accidents beyond its reasonable control (‘Force Majeure’), including but not limited to fire, accidental damage, natural disaster, war, terrorist attack, riots, failure of machinery, computers or vehicles, industrial action, non-performance by suppliers or subcontractors (excluding companies in the same group as the party seeking to rely on this clause), or interruption or failure of utility service.
13.2 A party subject to Force Majeure shall not be in breach of this Agreement provided it could not have avoided the effect of Force Majeure by taking precautions which it ought reasonably to have taken, and provided it promptly notifies the other party of the existence and nature of the Force Majeure, and uses reasonable endeavours to mitigate the effect of Force Majeure.
13.3 If Force Majeure continues for more than 30 consecutive days, either party may terminate this Agreement immediately by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring before such termination.
14.1 A notice (other than a notice in any legal proceedings) given by one party to the other under this Agreement will be properly served if it is in English and sent to the Client Notice Address or, in the case of notices to Untold Insights, to: Address: the Untold Insights address set out in the Order.
15.1 Untold Insights shall be entitled to sub-contract its performance of the Services provided that any sub-contracting shall not relieve Untold Insights from its obligations to the Client under this Agreement
15.2 Subject to clause 15.1, neither party may assign, transfer or charge or otherwise dispose of this Agreement or any of its rights or obligations arising hereunder without the prior written approval of the other party. Untold Insights is, however, entitled to perform any Services under this Agreement through any company which is its holding company or the subsidiary of such holding company, and any act or omission of such company shall be deemed to be the act or omission of Untold Insights. For the purposes of this clause, ‘holding company’ and ‘subsidiary’ shall be construed in accordance with the definition in section 1159 of the Companies Act 2006.
16.1 No variation of this Agreement shall be valid unless it is in writing and signed by a duly authorised officer of each of the parties.
16.2 A party’s failure to exercise, or delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of such, or preclude any further exercise of that or any other right or remedy.
16.3 If any provision or part-provision of this Agreement is found to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions and part-provisions of the Agreement shall not be affected.
16.4 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it.
16.5 If any dispute arises under or in connection with this Agreement, the parties will first attempt in good faith to settle such through negotiation rather than through legal proceedings. If the dispute is not resolved within 21 days of either party’s attempt to instigate such negotiations, it may be settled by the courts of competent jurisdiction under this Agreement.
16.6 Nothing in this Agreement shall restrict or exclude the right of either party to seek injunctive relief against the other party.
16.7 This Agreement, and any documents annexed to it and signed or initialled by the parties, constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject-matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance, undertaking or warranty, whether negligently or innocently made (‘Representation’), of any person (whether a party to this Agreement or not), other than as expressly set out in this Agreement. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause 16.7 shall limit or exclude any liability for fraud.
16.8 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
16.9 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
17.1 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.
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 this Agreement or its subject-matter or formation (including non-contractual disputes or claims).
