QA RESEARCH LIMITED SUB-CONTRACTOR AGREEMENT CONDITIONS
Last Updated: 17 January 2022
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.3.
Conditions: these terms and conditions, including the content of the Schedules, as amended from time to time in accordance with clause 12.5.
Confidential Information: means all information of a confidential nature (in whatever form) which is disclosed directly or indirectly by either party to the other, as well as all information of a confidential nature including: any know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind; all information produced, developed or derived from information disclosed pursuant to this Contract; all information agreed to be, or marked as, confidential; and any information either party knows, or could reasonably be expected to know, is confidential.
Contract: the contract between QAR and the Sub-contractor for the supply of Services as set out in an Order in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Costs: the charges payable by QAR for the supply of the Services in accordance with clause 6.
Cost Request: the initial email or other communication (as applicable) in which QAR specifies services required and requests a breakdown of the costs for such services.
Deliverables: all documents, materials or data developed by the Sub-contractor or its agents, contractors and employees as part of or in relation to the Services in any form or media, including; data, specifications and reports (including drafts).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets), 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.
Mandatory Policies: QAR’s relevant business policies as listed in the Schedule.
Order: QAR’s order for the supply of Services as set out in writing which may refer to the Quotation and/or the Cost Request and will identify the Services, Deliverables and specifications (each as applicable), Costs and any Special Conditions.
QAR: means Qa Research Limited, a company registered in England and Wales, with company number 03186539, whose registered office is at Merchant House, 11a Piccadilly, York, England, YO1 9WB and the customer of the Services to be supplied further to these Conditions.
QAR Customer: the party which has contracted with QAR for the supply of the Services.
QAR Materials: has the meaning set out in clause 3.3(j).
Quotation: the proposal, quotation or other (as the case may be) that is issued by the Sub-contractor in response to the Cost Request which contains the Costs and all other relevant information in relation to the Services to be supplied by the Sub-contractor including details of any sub-sub-contractors if required.
Services: the services, including any Deliverables, to be provided by the Sub-contractor under the Contract, as set out in the Order.
Special Conditions: any additional terms requested by a particular QAR Customer, if applicable, as set out in the Order.
Sub-contractor: the company or entity from whom QAR purchases the Services as identified in the Order.
Sub-contractor Materials: all materials, equipment, specifications and data already in existence prior to the Services being delivered which belong to the Sub-contractor and are needed to supply the Services.
a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
b) 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.
2. Basis of contract
2.1 Further to QAR’s submission of a Cost Request, the Sub-contractor will issue a Quotation to QAR. The issue of the Quotation by the Sub-contractor constitutes an offer by the Sub-contractor to supply the Services in accordance with these Conditions.
2.2 QAR will then agree to the scope of the Quotation subject to any clarifications and/or amendments by written confirmation (Order).
2.3 The Order shall be deemed to be accepted on receipt by the Sub-contractor at which point and on which date the Contract shall come into existence (‘Commencement Date’).
2.4 These Conditions, including any Special Conditions, if applicable, apply to the Contract to the exclusion of any other terms that the Sub-contractor seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 In the event of a conflict between the terms of the Order and these Conditions the terms of the Order shall take precedence.
3. Supply of services
3.1 The Sub-contractor shall from the date agreed between the parties as set out in the Order and for the duration of the Contract, provide the Services to QAR in accordance with the terms of the Contract.
3.2 The Sub-contractor shall meet any performance dates for the Services specified in the Order or that QAR notifies to the Sub-contractor in writing and time is of the essence in relation to any of those performance dates.
3.3 In providing the Services, the Sub-contractor shall comply with the terms of the Contract including:
(a) co-operate with QAR in all matters relating to the Services and keep QAR fully informed as to the progress and status of all Services;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Sub-contractor’s industry, profession or trade and, as applicable, in accordance with the requirements of ISO20252 The International Standard for Market and Social Research and the Market Research Society Code of Conduct;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Sub-contractor’s obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services will conform with all descriptions, standards and specifications set out in the Order and as notified to and agreed in writing with the Sub-contractor from time to time, and that the Deliverables shall be fit for any purpose that QAR expressly makes known to the Sub-contractor;
(e) provide all software and equipment and such other items as are required to provide the Services;
(f) use the best quality standards and techniques, and ensure that the Deliverables and materials supplied and used in the Services or transferred to QAR, will be free from defects and fit for purpose;
(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services, and with the Mandatory Policies;
(i) observe all health and safety rules and regulations and any other security requirements that apply;
(j) if applicable, hold all materials, information, specifications and data supplied by QAR (‘QAR Materials’) in safe custody at its own risk, maintain QAR Materials in good condition until returned to QAR, and not dispose or use QAR Materials other than in accordance with QAR’s written instructions or authorisation;
(k) not do or omit to do anything which may cause QAR to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Sub-contractor acknowledges that QAR may rely or act on the Services;
(l) not publish, issue or disseminate, either directly or indirectly, any publicity material concerning the Services without the prior written consent of QAR;
(m) not sub-contract all or part of their obligations under the Contract without the prior written consent of QAR;
(n) ensure that if any part of their obligations under the Contract are sub-contracted to any third party (further to obtaining prior written consent from QAR in accordance with clause 13.2), that the Sub-contractor enters into terms with these third parties that are on terms that mirror the Sub-contractor’s obligations within these Conditions; and
(o) promptly inform QAR of any actual or anticipated problems relating to provision of the Services.
4. QAR remedies
4.1 If the Sub-contractor fails to perform the Services by any agreed material dates, QAR shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights unless such failure is due in whole to a breach of the Contract by QAR:
(a) to terminate the Contract with immediate effect by giving written notice to the Sub-contractor;
(b) to refuse to accept any subsequent performance of the Services which the Sub-contractor attempts to make;
(c) to recover from the Sub-contractor any costs incurred by QAR in obtaining substitute services from a third party;
(d) to require a refund from the Sub-contractor of sums paid in advance for Services that the Sub-contractor has not provided; and
(e) to claim damages for any additional costs, loss or expenses incurred by QAR which are in any way attributable to the Sub-contractor’s failure to meet such dates.
4.2 If the Sub-contractor has supplied Services that do not comply with the requirements of clause 3.3(d) then, without limiting or affecting other rights or remedies available to it, QAR shall have one or more of the following rights:
(f) to terminate the Contract with immediate effect by giving written notice to the Sub-contractor;
(g) to return the Deliverables to the Sub-contractor at the Sub-contractor’s own risk and expense;
(h) to require the Sub-contractor to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);
(i) to refuse to accept any subsequent performance of the Services which the Sub-contractor attempts to make;
(j) to recover from the Sub-contractor any expenditure incurred by QAR in obtaining substitute services or deliverables from a third party; and
(k) to claim damages for any additional costs, loss or expenses incurred by QAR arising from the Sub-contractor’s failure to comply with clause 3.3(d).
4.2 These Conditions shall extend to any substituted or remedial services provided by the Sub-contractor.
4.3 QAR’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
5. QAR’s obligations
5.1 QAR shall provide such necessary information for the provision of the Services as the Sub-contractor may reasonably request.
6. Costs and payments
6.1 The Costs for the Services shall be set out in the Order or otherwise agreed in writing by QAR and the Sub-contractor. The Costs shall be the full and exclusive remuneration of the Sub-contractor in respect of the performance of the Services. Unless otherwise agreed in writing by QAR, the Costs shall include every cost and expense of the Sub-contractor directly or indirectly incurred in connection with the performance of the Services.
6.2 The Sub-contractor shall invoice QAR on completion of the Services or as otherwise agreed in writing. Each invoice shall include such supporting information required by QAR to verify the accuracy of the invoice, including the relevant purchase order number (if applicable).
6.3 In consideration of the supply of the Services by the Sub-contractor, QAR shall pay the invoiced amounts within 30 days of the date of receipt of a correctly rendered invoice. Payment shall be to a bank account nominated in writing by the Sub-contractor.
6.4 All amounts payable by QAR under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Sub-contractor to QAR, QAR shall, on receipt of a valid VAT invoice from the Sub-contractor, pay to the Sub-contractor such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.5 If QAR fails to make a payment due to the Sub-contractor under the Contract by the due date, then QAR shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.5 will accrue each day at 2% a year above the Bank of England’s base rate from time to time, but at 2% a year for any period when that base rate is below 0%.
6.6 The Sub-contractor shall maintain complete and accurate records of the time spent and materials used by the Sub-contractor in providing the Services, and shall allow QAR to inspect such records at all reasonable times on request.
6.7 QAR may at any time, without notice to the Sub-contractor, set off any liability of the Sub-contractor to QAR against any liability of QAR to the Sub-contractor, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by QAR of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
7. Intellectual property rights
7.1 The Sub-contractor acknowledges that QAR retains ownership of all QAR Materials and all Intellectual Property Rights in them. This includes any modifications or adaptations of QAR Materials produced by the Sub-contractor in the course of delivering the Services. QAR hereby grants to the Sub-contractor a non-exclusive license to use the QAR Materials during the term of the Contract solely for the purposes of delivering the Services.
7.2 QAR acknowledges that the Sub-contractor retains ownership of Sub-contractor Materials and all Intellectual Property Rights in them. This includes any modifications or adaptations of Sub-contractor Materials produced by the Sub-contractor in the course of delivering the Services. The Sub-contractor hereby grants to QAR and QAR Customers a non-exclusive license to use the Sub-contractor Materials during the term of the Contract solely for the purposes of receiving the Services and the Deliverables from the Sub-contractor.
7.3 In consideration of the sum of the Costs (receipt of which the Sub-contractor expressly acknowledges) the Sub-contractor assigns to QAR absolutely with full title guarantee all its right, title and interest in the Intellectual Property Rights specifically developed further to the supply of the Deliverables.
8.1 The Sub-contractor shall indemnify QAR against:
(a) all direct liabilities, costs, expenses, damages and losses (but excluding any indirect or consequential losses) and including all reasonable legal costs and expenses suffered or reasonably incurred by QAR arising out of or in connection with:
(i) any claim brought against QAR 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 (excluding QAR Materials); and
(ii) any claim made against QAR by a third party arising out of, or in connection with, the supply of the Services.
8.2 This clause 8 shall survive termination of the Contract
9. Data protection
9.1 The Sub-contractor shall, at its own expense, ensure that it complies with and assists QAR to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK) (Data Protection Legislation) together with the QAR Policy as set out in the Schedule.
9.2 Without prejudice to the generality of clause 9.1, the Sub-contractor shall ensure it and procure that any of its sub-contractors (if applicable) have in place:
(a) all the necessary appropriate consents and notices in place to enable lawful transfer of any personal data to QAR and QAR Customers and/or lawful collection of the personal data by the Sub-contractor on behalf of QAR for the duration and purposes of this Contract;
(b) appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
9.3 The Sub-contractor shall indemnify QAR and keep QAR indemnified from and against any and all direct liabilities, losses, expenses, claims, damages and losses suffered or reasonably incurred by QAR as a result of breach of the Sub-contractor’s obligations under the Data Protection Legislation and/or breach of the Sub-contractor’s obligations set out within this clause 9.
During the term of the Contract and for a period of 2 years thereafter, the Sub-contractor shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on QAR’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
11.1 Without limiting or affecting any other right or remedy available to it, QAR may terminate the Contract:#
(a) with immediate effect by giving written notice to the Sub-contractor if:
(i) there is a change of control of the Sub-contractor; or
(ii) the Sub-contractor’s financial position deteriorates to such an extent that in QAR’s opinion the Sub-contractor’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(iii) the Sub-contractor commits a breach of any of its obligations under clause 3.3.
11.2 Without limiting or affecting any other right or remedy available to it, 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 which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
12. Consequences of termination
12.1 On termination of the Contract for any reason, the Sub-contractor shall immediately deliver to QAR all Deliverables whether or not then complete, and return all QAR Materials. If the Sub-contractor fails to do so, then QAR may enter the Sub-contractor’s premises and take possession of them. Until they have been returned or delivered, the Sub-contractor shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
12.2 Termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
13.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). If a Force Majeure Event continues for thirty (30) consecutive days, the party not affected by the Force Majeure Event can suspend or terminate the Contract. In the event that both parties are affected, either may suspend or terminate. The terminating party must do so in writing, and state the date from which the suspension or termination will come into effect. If a Force Majeure event occurs, the parties will use all reasonable endeavours to prevent and mitigate the impact, and continue to perform their obligations under the Contract as far as is possible.
13.2 Assignment and other dealings.
(a) QAR may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Sub-contractor shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of QAR.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or Sub-contractors of the other party, except as permitted by clause 13.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.5 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 the parties or their authorised representatives.
13.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity or enforceability of the rest of the Contract. If any provision or part-provision of this Contract is deemed deleted under this clause 13.7 , the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provisions.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Quotation or otherwise specified by either party in writing from time to time.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 13.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
13.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
13.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.