QA RESEARCH LIMITED (‘QAR’) Standard Terms and Conditions for the supply of Services
Last Updated: 1 April 2021
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 as amended from time to time in accordance with clause 11.5.
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 Customer for the supply of Services in accordance with the Proposal and these Conditions.
Costs: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Customer/Client: the person or company who purchases Services from QAR as identified in the Proposal.
Customer Materials: those materials supplied by the Customer to QAR for the purpose of the supply of the Services only (including any trade marks if applicable).
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Proposal as agreed by the Customer.
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.
Proposal/Quote: QAR’s written description of the Services (including any Deliverables), Costs and all other relevant information in relation to the Services including any Special Conditions, to be supplied by QAR to the Customer, (and to which these Conditions are attached/or as otherwise agreed to in writing by QAR and the Customer from time to time).
QAR: 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, which shall supply the Services on the terms of the Contract.
QAR Materials: those materials belonging to QAR or specifically created by any officers, employees, sub-contractors or freelancers of QAR for the purposes of delivering the Services to the Customer (including any materials adapted, modified or derived from the Customer Materials).
Services: the services, including the Deliverables, to be supplied by QAR to the Customer as set out in the Proposal.
Special Conditions: any other conditions agreed between the parties and as set out in the Proposal or elsewhere in writing.
Term: the agreed period set out in a Proposal in which the Services are to be provided and if none is specified these Conditions shall apply until no Proposal is outstanding.
(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.
(c) A reference to writing or written includes email.
2. Basis of contract
2.1 Further to the Customer’s enquiry for the purchase of services, QAR will issue a Proposal to the Customer for review by the Customer.
2.2 If the Customer agrees to the Proposal in writing or proposes amendments further to which QAR submits a revised Proposal which is then agreed in writing by the Customer (‘Commissioning Email‘) such Commissioning Email constitutes an offer by the Customer to purchase the Services in accordance with these Conditions and the terms of the Proposal.
2.3 The Proposal shall only be deemed to be accepted when QAR issues written acceptance of the Commissioning Email (‘Project Acceptance’) at which point and on which date the Contract shall come into existence (‘Commencement Date’).
2.4 Any samples, descriptive matter or advertising issued by QAR, and any descriptions or illustrations contained in QAR’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6 Any issue of a Proposal by QAR shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue, unless otherwise stated by QAR in the Proposal.
3. Supply of Services
3.1 QAR shall supply the Services to the Customer in accordance with the Proposal in all material respects.
3.2 QAR shall use all reasonable endeavours to meet any performance dates specified in any timetable specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 QAR reserves the right to:
(a) use sub-contractors with appropriate experience and/or qualifications to supply part or all of the Services provided that QAR shall be responsible for any acts or omissions of such sub-contractors in the provision of the Services;
(b) amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and QAR shall notify the Customer in any such event.
3.4 In providing the Services, QAR shall:
(a) co-operate with the Customer in all matters relating to the Services and keep the Customer informed as to the progress and status of all Services as agreed by the parties in the Proposal;
(b) use employees, agents, consultants and subcontractors who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that QAR’s obligations are fulfilled in accordance with the Contract;
(c) comply with all applicable laws which may apply from time to time to the provision of the Services; and
(d) promptly inform the Customer of any actual or anticipated problems relating to the provision of the Services including, for example, informing the Customer of its responsibilities under the Market Research Society Code of Conduct and/or ISO 20252 and of any actions taken by the Customer which do not satisfy the requirements of either.
4. Customer’s obligations
4.1 The Customer shall:
(a) ensure that any information it provides QAR which is used to create the Proposal and/or to perform the Services are as complete and accurate as possible and promptly update QAR should it become aware that this is required;
(b) co-operate with QAR in all matters relating to the Services;
(c) provide QAR, its employees, agents, consultants and subcontractors, with the relevant access to the Customer’s staff, and/or facilities as reasonably required by QAR in order to perform the Services;
(d) provide QAR with such information and materials as QAR may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the provision of the Services before the date on which the Services are to start;
(f) comply with any additional obligations as set out in the Proposal or any other additional agreements or policies as stated in these Conditions; and
(g) promptly comply with its payment obligations as set out in clause 5.4 or as otherwise agreed in a Proposal.
4.2 If QAR’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (‘Customer Default’):
(a) without limiting or affecting any other right or remedy available to it, QAR shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its’ obligations in each case to the extent the Customer Default prevents or delays QAR’s performance of any of its obligations;
(b) QAR shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from QAR’s failure or delay to perform any of its obligations as a result of a Customer Default;
(c) the Customer shall reimburse QAR on written demand for any costs or losses sustained or incurred by QAR arising directly from the Customer Default;
4.3 In the event of cancellation or postponement of a Contract once commissioned, a fee will be charged by QAR to cover costs of all work undertaken, services provided, expenses and overheads, and commitments made up to the time of cancellation. Additionally, cancellation fees for the fieldwork elements will be charged as follows:
(a) 50% of agreed Costs shall be paid for Contracts cancelled within 4-7 days of fieldwork commencing; and
(b) 100% of agreed Costs for Contracts cancelled within 3 days of fieldwork commencing.
5. Costs and payment
5.1 The Costs for the Services shall be as set out in the Proposal.
5.2 In the event that QAR becomes aware of any changes needed to the Proposal which will affect the supply of Services or Costs, including those examples listed below, it shall agree such changes with the Customer before continuing with the supply of Services. For example: (a) the information provided by the Customer is inaccurate which causes additional work or costs to QAR; (b) additional work is requested by the Customer which is outside the Services as specified in the Proposal; (c) there are unforeseen costs incurred by QAR that could not reasonably have been anticipated on the Commencement Date or (d) adverse weather conditions which delay the supply of the Services.
5.3 QAR shall invoice the Customer as set out in the Proposal and if the Proposal is silent then:
(a) the sum of fifty percent (50%) of the Costs on the date the Contract is entered into; and
(b) the balance of the Costs that are outstanding on completion of the Services.
5.4 The Customer shall pay each invoice submitted by QAR:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by QAR and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by QAR, and
time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are subject to the value added tax chargeable from time to time (VAT) and the Customer shall, on receipt of a valid VAT invoice from QAR, pay to QAR 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.
5.6 If the Customer fails to make a payment due to QAR under the Contract by the due date, then, without limiting QAR’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum. Where the Customer disputes the validity of the invoice and such dispute results in court proceedings and an order that the invoice is payable the interest shall accrue from the date the original invoice was due to be paid. Interest under this clause 5.6 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, and at 8% a year for any period when that base rate is below 0%.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law)
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer materials) shall be owned by QAR unless otherwise agreed in writing. QAR grants the Customer a royalty free, non-exclusive, worldwide, perpetual licence to use any of the research findings (i.e. data) contained in the Deliverables for any purpose.
6.2 The Customer grants QAR a royalty free, non-exclusive, licence in the UK to copy and modify any Customer Materials provided by the Customer to QAR for the Term of the Contract and the right to sub-licence such rights to any sub-contractor, solely for the purpose of providing the Services to the Customer.
7. Data protection
7.1 Both QAR and the Customer shall, at its own expense, ensure that it complies with and insofar as it is required by statute, to assist the other party to comply with, the requirements of all applicable legislative and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended from time to time and any successor UK legislation.
7.2 QAR shall ensure that it processes all personal data in accordance with the Contract and its Data Protection Policy which can be found at https://www.qaresearch.co.uk/privacy/
8. Limitation of liability
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation.
8.4 Subject to clauses 8.3 and 8.6 QAR’s total liability to the Customer:
(a) for loss arising from QAR’s failure to comply with its data processing obligations under clause 7 shall not exceed:
(i) the total sum of 100% (one-hundred percent) of the Costs paid or payable in the previous 12 months, where the Services provided did not include the processing of Special Category Personal Data; or
(ii) the total sum of 200% (two-hundred percent) of the Costs paid or payable in the previous 12 months, where the Services provided did include the processing of Special Category Personal Data
and for the purposes of this clause 8.4(a), Special Category Personal Data shall include any personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation;
(b) for all other loss or damage shall not exceed the total sum of the Costs paid or payable in the previous 12 months.
8.5 Subject to clause 8.2 and clause 8.3, this clause 8.5 sets out the types of loss that are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.6 QAR has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.7 Unless the Customer notifies QAR that it intends to make a claim in respect of an event within the notice period, QAR shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 weeks from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.8 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party no less than 30 days’ written notice provided QAR has not commenced the Supply of Services further to any agreed Proposal.
9.2 Without 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 and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
(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; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, QAR may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 Without affecting any other right or remedy available to it, QAR may suspend the supply of Services under the Contract or any other contract between the Customer and QAR or terminate the Contract if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause 9.2(c) or clause 9.2(d), or QAR reasonably believes that the Customer is about to become subject to any of them; or
(c) QAR reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.2(b); or
(d) agreement cannot be reached further to changes to the Services or Charges as anticipated in clause 5.2 above.
10. Consequences of termination
10.1 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to QAR all of QAR’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, QAR shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the QAR Materials and any Deliverables which have not been fully paid for.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 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 sixty (60) consecutive days, the party not affected by the Force Majeure Event can suspend or terminate the Contract. They 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.
11.2 Assignment and other dealings.
(a) Each party 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.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(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 11.3; 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.
11.4 Entire agreement.
(a) 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
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 and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 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 provision.
(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 Proposal 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 11.8(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 11.8 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.
11.9 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.
11.10 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.
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.