General Terms and conditions of GfK Retail and Technology UK Ltd. for the provision of the Services
1. DEFINITIONS
1.1 The following words and phrases used in these Terms and Conditions shall have the following meanings except where the context otherwise requires:
"Confidential Information”
Any information relating to the Participant’s customers and prospective customers, current or projected financial or trading situations, business strategies developments and all other information relating to the Participant’s business affairs including trade secrets, know-how and any information of a confidential nature imparted by the Participant to GfK during the term of these Terms and Conditions or coming into existence as a result of GfK’s obligations, whether existing in hardcopy form, in electronic form or otherwise or whether disclosed orally or in writing. This definition shall include Personal Data.
"Fees”
The Fees as agreed and confirmed in writing between Gfk and the participant.
"GfK”
GfK Retail and Technology UK Ltd of Sheer House, Station Approach, West Byfleet, Surrey, KT14 6NL.
"Intellectual Property”
Patents, inventions, utility models, database right, copyright (including rights in computer software), design right, trade marks and trade names, know how, in all cases where the registered, registerable or unregisterable in any country for the full term of such rights including any extension to or renewal of the terms of such rights and including registrations and applications for registration of any of these and rights to apply for the same and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world.
"Participant”
Any user of the Services from time to time.
"Personal data”
The meaning set out in the Data Protection Act 1998 and relates only to personal data of which the Participant is the data controller (as such terms is defined in the Data Protection Act 1998) and in relation to which the GfK is providing Services.
"Reports"
All GfK Reports and analysis provided for the manufacturers, retail organisations and other potential clients.
"Service” and "Services"
The GfK service being the analysis and reports supplied as agreed in writing with the Participant.
1.2 Headings are inserted for convenience only and shall not affect the construction or interpretation of these Terms and Conditions and, unless otherwise stated, references to clauses and Schedules are references to the clauses or and schedules to these Terms and Conditions.
2. APPLICATION OF THESE TERMS AND CONDITIONS
2.1 These Terms and Conditions shall apply to all contracts for Services provided to Participants.
2.2 If the Participants have their own general terms and conditions, such terms and conditions shall not apply to any contracts between GfK and the Participants.
2.3 Should any individual contracts be reached on different terms to these Terms and Conditions or purport to amend them, any such changes or amendments shall require the written consent of GfK.
3. THE FEES
3.1 Subject to Clause 4 of this Agreement, the Participant shall pay to GfK the Fees until the termination of the Agreement, pursuant to the provisions of Clause 14. The Fees are expressed to be net of VAT which shall be paid by the Participant at the rate set from time to time in the manner prescribed by law.
3.2 In the case of ongoing contracts The Fees, charges, and volume discount bands may be increased from time to time on the anniversary of the contract and thereafter at twelve-monthly intervals.
3.3 Such increases shall be at a rate equal to the percentage increase shown by the Office for National Statistics in the Monthly Digest of Statistics or any Government substitution therefore in respect of the preceding twelve month period. For the purpose of this clause the Index of Retail Prices at each review will be that shown in the issue dated two months prior to the date of increase.
4. INVOICING
4.1 The Participant shall pay all invoices promptly and in any event within 30 days of the date of issue of each invoice.
4.2 Without prejudice to any other right or remedy that it may have, if the Participant fails to pay GfK on the due date in respect of any invoice, GfK may charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank accruing on a daily basis and being compounded quarterly until payment is made whether before or after judgment and the Participant shall pay the interest immediately on demand; and GfK has the right to suspend all Services (or any relevant part thereof) until payment has been made in full.
4.3 The Participant recognizes that time for payment shall be of the essence in connection with the provision of the Services.
5. DURATION
5.1 Subject to the provisions of clause 14 these Terms and Conditions shall be for either the agreed Term or shall continue thereafter unless terminated by either party on giving written notice to the other in accordance with clause 14.1 of these Terms and Conditions.
5.2 Notwithstanding the termination of these Terms and Conditions, its provisions shall continue in full force and effect so far as they remain to be observed and performed by GfK and the Participant.
8. ACCURACY LEVELS
8.1. The Participant recognises that figures contained in the Reports are estimates derived from a combination of Participants’ data and sample surveys. The sample surveys are carried out in accordance with accepted market research methods and as such are subject to limits of statistical error. GfK will use all reasonable endeavours to ensure the accuracy of census data provided by Participants but does not accept responsibility for any error contained in, or any omission from that data, or any loss direct or consequential arising therefrom.
8.2. GfK will use all reasonable endeavours to ensure the accuracy of all Reports but no warranty as to the accuracy of or as to any inference contained in any Report is given and GfK provides no warranty that the Reports or the data contained in the Reports may be used by the Participant for any particular purposes.
8.3. GfK reserves the right to make alterations to the contents or layout of the Reports which do not in its reasonable opinion result in any substantial change in the nature of the Service.
9. Product Information
9.1. The Participant recognises that in order to maintain the quality of its research GfK requires information on the products that the Participant sells and will offer reasonable assistance to help GfK identify these products. Additionally where applicable GfK may from time to time access product material from the Participant’s web-site to ensure the accuracy and completeness of GfK’s services.
10. LIABILITY
10.1. This clause 11 sets out the entire financial liability of GfK (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors). All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms and Conditions.
10.2. GfK shall not be liable to the Participant for any indirect or consequential loss or damage, loss of data or other equipment or property, economic loss or damage, any loss of profit or business, interest, revenue, anticipated savings or business or damage to goodwill or loss of or corruption of data or information nor shall GfK be liable for any loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and/or punitive damages). Nothing in this clause shall limit GfK’s liability for death or personal injury caused by the negligence or default of GfK.
10.3. In no circumstances shall GfK’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of these Terms and Conditions exceed £5,000 over the entire Term.
10.4. The Participant having sought legal advice and having had the opportunity to insure itself against any losses that may arise as a result of GfK being in breach of its obligations under these Terms and Conditions and given that the Participant is not making any payment to GfK in respect of the provision of the Reports acknowledges and agrees to the limitations of liability contained in these Terms and Conditions.
10.5. Nothing in these Terms and Conditions shall be taken to limit or exclude the liability of GfK for death or personal injury to any person resulting from its negligence or any damage or liability incurred by the Participant as a result of fraud or fraudulent misrepresentation by GfK.
11. OWNERSHIP OF INTELLECTUAL PROPERTY AND LICENCE
11.1. The Participant acknowledges that GfK owns substantial background Intellectual Property as a result of conducting its business and further acknowledges that the Participant has no rights to use such background Intellectual Property (except in relation to these Terms and Conditions).
11.2. If the Participant creates any Intellectual Property rights in the data in the course of meeting its obligations pursuant to these Terms and Conditions, the Participant hereby assigns such rights as it may have in the Intellectual Property to GfK with full title guarantee, free from third-party rights and for the full terms during which those rights and any renewals or extensions subsist.
11.3. The Intellectual Property Rights in all Reports and all other Intellectual Property created by GfK in providing the Services shall be and shall remain the property of GfK. No part of any Report shall be published by the Participant without the previous written consent of GfK, such consent shall not be unreasonably withheld and no Report shall without such consent be lent to, or allowed into the possession of anyone other than a senior and responsible member of staff of the Participant or of any company or organisation controlled by the Participant whose normal duties require such loan or possession. No copyright fees will be payable by the Participant to GfK.
12. CONFIDENTIALITY
12.1. The Participant shall procure that all Confidential Information disclosed to it by GfK under these Terms and Conditions or which may at any time during the Term come into the Participant’s knowledge, possession or control, shall be kept secret and confidential and shall not be used for any other purposes other than those required or permitted by these Terms and Conditions and shall not be disclosed to any third party (unless required by law).
12.2. The Participant shall comply with the obligation in clause 10.1 for a period of 2 years from the date of termination of these Terms and Conditions for whatever reason ("Termination Date"), or for as long as the Confidential Information remains confidential, whichever is longer.
13. TERMINATION
13.1. The Participant may terminate all contracts to which these Terms and Conditions apply at the end of the Term. In the event that these Terms and Conditions are not so terminated, the Participant may terminate these Terms and Conditions without cause by giving to GfK not less than 6 months’ written notice specifying the date on which these Terms and Conditions shall terminate.
13.2. GfK may terminate these Terms and Conditions without cause by giving the Participant not less than 6 months’ written notice specifying the date of the termination.
13.3. These Terms and Conditions may be terminated by either party with immediate effect by notice in writing if at any time that other party:-
13.3.1. passes a resolution that it be wound up;
13.3.2. has an application made for an administration order;
13.3.3. applies to enter into a voluntary arrangement with its creditors or a receiver, liquidator, administrator, supervisor or administrative receiver be appointed in respect of its property, assets or any part thereof;
13.3.4. a court orders that such party be wound up or it is unable to pay its debts in accordance with Section 123 of the Insolvency Act 1986 (if a company);
13.3.5. ceases, or threatens to cease to carry on business; or
13.3.6. being an unincorporated body, partnership or sole trader an order is made or a petition is presented for the bankruptcy of that party or any receiver is appointed in respect of that other party or any of its assets.
13.4. Subject to GfK’s rights to terminate the Services in accordance with clause 4, in the event of any material breach of these Terms and Conditions by either party, the other party may serve a Notice on the party in breach requiring the breach to be remedied within a period specified in the Notice which should be reasonable in all the circumstances. If the breach has not been remedied by the expiry of the specified period, the party not in breach may terminate these Terms and Conditions with immediate effect by notice in writing.
14. CONSEQUENCES OF TERMINATION
14.1. On termination for any reason each party shall to the extent reasonably requested by the other transfer or deliver all and any assets owned by the other party back to that other party and shall promptly provide such assistance and comply with such timetable as the other party may reasonably require for the purpose of ensuring an orderly and prompt transfer of each party’s responsibilities.
14.2. The assistance referred to in clause 15.1 may include (without limitation):-
14.2.1. the delivery of documents and data in the possession, custody or control of either party which relates to these Terms and Conditions and the Services; and
14.2.2. the execution of such documents as may be necessary or desirable to give proper effect to the provisions of these Terms and Conditions.
14.3. Each party shall do such other reasonable acts or things as may be necessary or desirable to enable the other party to accomplish an orderly and prompt transfer of responsibility for the provision of the Services to another party.
15. APPOINTMENT OF A SUB-PROCESSOR
15.1. If at any time during the term of these Terms and Conditions GfK wishes to appoint a sub-processor, the Participant hereby gives to GfK delegated authority to act as its agent in the appointment of such sub-processor provided:
15.1.1. the sub-processor contract is on the terms which are substantially similar to the ones set out in these Terms and Conditions; and
15.1.2. the sub-processor contract terminates automatically on termination of these Terms and Conditions for whatever reason.
16. FORCE MAJEURE
16.1. Neither GfK nor the Participant shall be under any liability if by reason of any circumstances beyond their control (for example only: postal or railway delays, strikes or other labour troubles, material or labour shortages, fire or accident) ("an event of force majeure”) they are unable to comply with the terms of these Terms and Conditions.
16.2. Where either party is (or claims to be) affected by an event of force majeure;
16.2.1. it shall take all available steps to mitigate the consequences of such an event of force majeure upon the performance of its obligations under these Terms and Conditions, resume performance of its obligations effected by the event of force majeure as soon as reasonably practicable and remedy insofar as it can its failure to perform;
16.2.2. the party claiming relief by reason of an event of force majeure shall serve written notice on the other party within 10 working days of it becoming aware of such an event of force majeure. Such initial notice shall give sufficient details to identify the particular event claimed to be an event of force majeure;
16.2.3. any subsequent written notice notifying of the continuing nature of an event of force majeure shall be served within a further period of 10 working days and which shall also contain such relevant information relating to the failure to perform (or delay in performing) as is available and shall include a reasonable estimate of the period of time required to overcome it (and/or its effects); and
16.2.4. the party claiming relief shall notify the other as soon as the consequences of the event of force majeure have ceased and of when performance of its affected obligations can be resumed.
16.3. If any circumstances relied on by either party for the purposes of this clause continue for a period of more than 3 months then the other party shall be entitled to immediately terminate these Terms and Conditions in accordance with the provisions of clause 11.
16.4. DATA PROTECTION
16.5. For the duration of these Terms and Conditions and the extent that any personal data (as defined in the Data Protection Act 1998) is processed by any party, that party shall comply in full with the provisions and obligations imposed on it by the said Act and all subordinate legislation relating thereto, including the eight data protection principles and any analogous legislation in other jurisdictions. For the avoidance of doubt, this shall include taking such steps and implementing such policies and procedures which are necessary to comply with the requirements of the relevant legislation.
17. DISPUTES
17.1. Subject to the rights to terminate as are provided elsewhere in these Terms and Conditions, all disputes, differences or questions arising in relation to these Terms and Conditions shall be referred in the first instance to the sales director of each party who shall meet together as soon as reasonably practicable and attempt to settle the dispute between themselves (acting in good faith).
17.2. If the said sales directors fail to resolve the dispute, it shall be referred to the managing director of each party who shall meet together as soon as reasonably practicable and attempt to settle the dispute between themselves (acting in good faith).
17.3. If the said managing directors fail to resolve the matter within one calendar month of meeting, then either party shall initiate a mediation using the Centre for Dispute Resolution model mediation procedure and shall give notice in writing to the other party requesting mediation of the dispute and shall send a copy thereof to the said Centre asking it to nominate a mediator in the event that the parties fail to agree such appointment. The mediation shall commence within 20 working days of the mediation notice being served. Neither party will terminate such mediation until each party has made its opening presentation and the mediator has met each party separately for at least 1 hour. Thereafter, paragraph 14 of the model procedure (or such amended procedure as may come into force from time to time) will apply.
17.4. Neither party shall commence court proceedings in relation to any dispute until 20 working days after such mediation of the dispute in question has failed to resolve the dispute.
18. GENERAL
18.1. The invalidity, illegality or unenforceability of any provision of these Terms and Conditions shall not affect the other provisions of these Terms and Conditions and these Terms and Conditions shall be given effect as if the invalid, illegal or unenforceable provision had been deleted (unless the provision so effected is so fundamental to these Terms and Conditions that one or more of the essential elements of a contract is removed).
18.2. Each party acknowledges that these Terms and Conditions and the conditions contained herein, constitute the entire agreement between the parties and supersede any arrangements, understanding or previous agreement between them relating to the subject matter they cover and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
18.3. Nothing in these Terms and Conditions shall be construed as constituting a partnership between the parties or as constituting either party as the agent of the other for any purpose whatsoever except as specified in these Terms and Conditions.
18.4. No variation of these Terms and Conditions shall be effected unless it is made in writing, refers to specifically to these Terms and Conditions and is signed by both of the parties.
18.5. No waiver of any term, provision or condition of these Terms and Conditions shall be effective except where it is clearly made in writing and signed by the waiving party. No waiver of any particular breach of these Terms and Conditions shall be held to be a waiver of any other or subsequent breach.
18.6. No omission or delay on the part of any party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waive by it or of any right to exercise it in future or of any other of its rights under these Terms and Conditions.
18.7. No term of these Terms and Conditions shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by third party, being any person other than the parties.
18.8. These Terms and Conditions shall be governed by the laws of England and each of the parties agrees to Submit to the non-exclusive jurisdiction of the English courts.
