This Agreement is between the Agency and the Client. Subject to any variation agreed by the parties in writing, these Terms and Conditions are the terms and conditions upon which the Agency is prepared to deal with the Client and they shall govern the contractual relationship between the parties to the entire exclusion of all other terms and conditions. In a situation where the Client is acting on instruction of an End User, the Client will ensure that these Terms are complied with by the End User and any intermediaries or any third parties with access to the Services or part thereof. The Client confirms that it has the authority to proceed with this proposal. This Agreement shall commence on the Commission Date and shall continue thereafter for the period specified in the Proposal timeline, unless otherwise mutually agreed.
1. Definitions and interpretation
In these Terms and Conditions (except where the context otherwise requires) the following words shall have the following meanings:
Ad Hoc Projects: Any project commissioned by the Client to specific customised requirements or specifications of quantitative, qualitative, omnibus and secondary analysis research projects. Ad Hoc Projects may include elements of other types of project such as Video Research, Sample Provision and Syndicated Reports.
Agency: The Agency is YouthSight (a trading name of OpinionPanel Ltd) whose registered office is at 50 Featherstone Street, London, EC1Y 8RT.
Client: The client, whose details are set out in the Proposal or order form.
Commission date: The commencement of the project occurs once the Client has provided the Agency with written acceptance of the proposal.
Completion: The Services reach completion upon presentation of final results. This may be varied by mutual agreement.
Confidential Information: All information which is confidential in nature regardless of the medium, whether written, oral or otherwise, concerning each party and its business, but excluding any information (i) which is in the public domain; or (ii) becomes generally available to third parties through no fault of the other party; or (iii) which was lawfully in the possession of the other party prior to such disclosure; or (iv) the disclosure of which is required by law; or (v) the disclosure of which is expressly approved by the disclosing party.
End User: The ultimate single beneficiary of the Services.
Fee: The sum to be paid by the Client to YouthSight, as set out in the Proposal in consideration of YouthSight providing the Services. The Fee shall be exclusive of Value Added Tax and all other taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority worldwide for which the Client shall be additionally liable from time to time.
Nominated Individual: The person named on the order form or Proposal and nominated to have access to and responsibility for the Syndicated Research provided by the Agency.
Panellist: A registered panellist of OpinionPanel Ltd (“The OpinionPanel Community”).
Proposal: The document or order form, which outlines the specific details of the Services, which YouthSight proposes to undertake for the Client subject to these Terms and Conditions. The Proposal includes any subsequently agreed written correspondence in relation to the Services, which are acknowledged at that time by both parties to be part of the Proposal.
Service Deliverables: The component of the Services undertaken by the Agency to be provided to the Client either during the project or upon the completion of a project, as set out in the Proposal.
Services: The services including the Service Deliverables to be provided by YouthSight to the Client as set out in the Proposal including Ad Hoc Projects, Syndicated Reports, Video Projects, and Sample Provision projects subject to these Terms and Conditions.
Syndicated Reports: Research projects produced and owned by the Agency and sold to multiple Clients. Each report may, or may not be customized to client needs, as set out in the Proposal.
Sample Provision: Projects where the Agency provides access to respondents and participants to a defined profiling specification which allows the Client to then undertake their own market research project.
Video Research: Research supplied to the Client that includes video recordings such as participant testimonies, diaries, environments, tasks, and other video recordings. Video Research supplied via an online platform will be accessible for a period of three months from Completion. Video Research comprises Personal Data as defined by 1998 Data Protection Act and should be treated accordingly.
Written/Writing: All written communication between the Agency and the Client including emails, except in relation to payment (Clause 6.5).
2.1. In the absence of a written agreement to the contrary, all intellectual property rights provided within the Services, including, without limitation, all copyright and know-how in research design, research tools including questionnaire design, discussion guides, agendas, analysis tools and techniques, proposals, research specifications, completed questionnaires and other collected media shall remain the property of, and are confidential to the Agency and its subcontractors and information contained therein may not be revealed to third parties.
2.2. For Ad Hoc Projects, excluding Syndicated Reports and Video Research, the results and the data including reports, presentations and other information produced by the Agency as part of the Services will be the property of the Client and subject to these Terms, including inter alia the limitations set out in Clause 4.4. the Agency undertakes to use reasonable endeavours to protect and preserve the Client’s property rights from any claims from third parties. The Client has the exclusive right to use the results and in particular any documents formalising these results which were provided by the Agency as a part of the agreement, subject to the Terms below.
2.3. For Syndicated Research, the results and the data file will be the sole and exclusive property of the Agency. The Client undertakes to use their best endeavours to protect and preserve this property right.
3. Obligations and responsibilities of the Agency
3.1. The Agency shall supply the Client with the Services described in the Proposal in accordance with the Terms and Conditions defined herein.
3.2. The Agency warrants that all services provided pursuant to the Proposal shall be performed in accordance with the general principles of the profession, as described in the ICC / ESOMAR International Code of Marketing and Social Research Practice. The Agency also warrants that all services included in this Proposal shall be carried out in accordance with the Market Research Society (MRS) Code of Conduct and the Data Protection Act 1998.
3.3. The Proposal will set out the Services to be delivered by the Agency and associated matters and may vary these Terms. Any variation should be subject to mutual agreement.
3.4. The Services will be delivered with reasonable skill and care.
3.5. The Agency will form a Project Team, to include individuals named in the Proposal. The Agency may substitute any who are named for others of equal or similar skills.
3.6. The Agency may acquire Confidential Information concerning your business or affairs while delivering the Services. We will preserve its confidentiality and we will not disclose it beyond the Project Team unless permitted by you. The Agency will comply with the confidentiality standards of the MRS and we will adhere to the confidentiality restrictions imposed on us by English law.
3.7 For Video Research, it is in the nature of providing direct, unedited opinions that individual contributions may vary in length and quality. The Agency will use reasonable endeavors to provide the Client with the required number and quality of videos and transcripts. The Agency will charge per-interview fees only for the videos that are supplied.
3.8. For the purposes of marketing or publicising or selling our services the Agency may wish to disclose that we have performed work (including the Services) for you, in which event we may identify you by your name and the Agency may indicate only the general nature or category of such work and any details which have properly entered the public domain.
3.9. Any advice, opinion, statement of expectation, forecast or recommendation supplied by the Agency shall not amount to any form of guarantee that the Agency has determined or predicted future events or circumstances.
3.10. The Agency will own and keep all original data related to Ad Hoc Projects (e.g. transcripts, databases, code books) for a period of one year after completion of the project. During this period, the Agency will be responsible for the safe keeping and confidentiality of all material. After this period, all material may be destroyed by the Agency without reference to the Client. At the request of Client, material may be stored for a longer period provided the Client agrees to pay the full costs of so doing.
4. Obligations and responsibilities of the Client
4.1. All Services, including reports, and other documents relevant to projects, provided by the Agency as part of the Services are for use by the End User and, if necessary, its Associates (comprising the End User’s marketing and advertising consultants and other relevant and duly authorised consultants and advisors) exclusively, unless otherwise stated in the Proposal.
4.2. In respect of Service Deliverables, the Client may not, without advance written permission of the Agency:
- offer any part of the Services for resale
- re-purpose or re-distribute any part of the Services
- share any part of the Services outside of the Client organisation
- publish or put in the public domain any part of the Services
4.3. Syndicated Reports supplied by the Agency to Clients are provided on the basis that the Client restricts access to the Services to Nominated Individuals, each of whom is only permitted to use the data in the following ways:-
- view it online
- download one copy of that digital content in an available electronic format
- store that content in electronic format on the drive of one hardware device; print out one copy of that digital content
- manipulate any statistical data that is provided with a report provided that the Client keeps intact all and any copyright and proprietary notices.
4.4. A Nominated Individual may not share their login details to Syndicated Reports. Nominated Individuals may not sub-licence, sell, share, assign, convey or transfer any rights under this agreement. The Client must notify the Agency if a transfer of Nominated Individual is required due to the following circumstances: a change of job role; leaving the Client organisation; taking a period of extended leave or absence.
4.5. Video Research is personal data. The Client agrees that no attempt will be made to discover the identity, or try to contact in any way, any of the contributors who are recorded in the videos, reproduced in the transcripts, or in any other way referenced or shown in the data or services provided via the Agency.
4.6 Generally, the Agency will not pass on any personally identifying data to the Client, except where agreed in the Proposal, with explicit permission given by participants including Panellists. In cases where personally identifying data is provided to the Client, the only permitted uses are the ones previous agreed in the Proposal, and the Client becomes the Data Controller (as defined under the Data protection Act 1998).
4.7. In respect of Video Research, because it is based on personal data and is collected on the basis of participants’ informed consent it may only be used exclusively for the purpose of market research. It may not be used for any other purpose including inter alia marketing, promotion, and publishing whether it be in the public domain or otherwise, unless explicitly agreed in the Proposal and with permission for the other uses given by the participants. Upon receiving Video Research, the Client becomes the Data Controller (as defined under the Data Protection Act 1998).
4.8 In respect of Sample Provision, the Client is not permitted to utilise survey data provided by the Agency’s panellists to populate a syndicated research study, unless prior permission is grated in advance by the Agency. Similarly, the Client is not permitted to collect any personal details of research participants or Panellists, or distribute any cookies that allow the Client to identify, track or contact the research participants without explicit written permission from the Agency.
5. Delivery of Services
5.1. If the Agency Proposal includes estimated figures (such as product penetration rates) provided by the Client which are subsequently found to be inaccurate and this leads to a substantial shortfall or delay in the Services, then the Agency may unilaterally adjust the timing and Fees for delivery of the Services to compensate for these inaccuracies. The Agency shall inform the Client in writing of the nature of the errors in the information provided and their estimated impact in terms of budget and timing.
5.2. The Client acknowledges and agrees that, given the nature of panel research, it is not possible in all circumstances for the Agency to predict accurately the number of complete responses it will achieve for each questionnaire or the number of people who will accept an invitation to participate in a given group. The Agency uses its market research experience to estimate the number of responses it will receive but accepts no liability whatsoever if it fails to achieve the number estimated. The Agency will not charge the Client for any interviews which have been included in any proposal but not undertaken.
5.3. If the Client requests additional services over and above the specification or scope set out in the original Proposal, the Agency will inform the Client of the additional charges which, once approved, will be added to the overall Fee.
5.4. Any major problems or delays arising within the Agency shall be notified in writing to the Client by the Agency. In situations where, through wilful or significant negligence of the Agency, the Services are not supplied on time, and as a result the benefit of the Services to the Client is substantially reduced, the Agency will consider a partial refund of up to 50% of the Fees, on submission of a claim by the Client which clearly sets out:
- the prima facie evidence of the wilful or negligent behaviour of the Agency; and
- the justification for the loss in value of the Service arising from the delay.
5.5. In the event of changes or delays due to action or failure on the part of the Client, the Agency reserves the right to charge the Client for any consequential loss or damages arsing in addition to the full Fee.
5.6. The Agency shall have the right to appoint sub-contractors to assist in delivering the Services. Where appointed, the Agency may share Confidential Information with sub-contractors for all purposes in connection with the Services. The Agency shall accept responsibility for the sub-contractor activities which form part of the Services.
5.7. In the event that the Agency has agreed to the Client’s request for publication, all data and wording must be approved by the Agency. In the event of publication of data or wording without the Agency's consent, the Agency reserves the right to publish any corrections or additional information from the research that the Agency considers necessary to ensure that the data are fairly and accurately reported. Further, the Agency reserves the right to immediately terminate the Services and to seek equitable damages for loss of business or reputation arising.
5.8. The Agency reserves the right to make any changes and amendments to any Syndicated Reports at any time.
6.1. Unless explicitly stipulated to the contrary, the Fee (plus VAT) will be invoiced in either two or three instalments, depending on the size of the invoice and anticipated duration of the project:
Invoices under £50,000 will normally be invoiced in two instalments:
- 50% on acceptance of the Proposal
- 50% on delivery of the Service
Invoices over £50,000 will normally be invoiced in three instalments:
- 50% on acceptance of the Proposal
- 25% after completion of Fieldwork
- 25% on delivery of the Service
6.2. Invoices are payable within 30 days from the date thereon.
6.3. If after 60 days from issue any invoice remains unpaid, the Agency may add a surcharge of 2% for each month or part month after its due date, during which the payment has not been received.
6.4. Charges relating to international projects involving foreign fieldwork or services costs, will be based on prevailing exchange rates on the issuing of the invoice of the work. The Agency reserves the right to adjust the final fee in line with any exchange rate fluctuation during the course of the Service.
6.5 All Fee payments must be made to the account as specified below. Any changes to these details must be confirmed by letter (not email):
Account name: OpinionPanel Ltd
Sort code: 40-04-37
Account number: 01438824
7.1. Each party shall be entitled to terminate this agreement forthwith if either party breaks an essential obligation entered into under this agreement which is not capable of remedy or, if capable, shall not have been remedied within a reasonable time of receiving a written notice from the other party.
7.2 This agreement shall terminate, without notice, (i) upon the institution by or against either party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either party’s debts, (ii) upon either party making an assignment for the benefit of creditors, or (iii) upon either party’s dissolution or ceasing to do business.
7.3 In the event of termination under clause 7.1 where the essential obligation is broken by the Client, or if under clause 7.2 the party involved is the Client, then the Agency may invoice for the full Fee as if the Service had been fully delivered.
7.4. In the event of a non-Syndicated Report Proposal being cancelled by the Client after acceptance of the Proposal but before commencement of fieldwork, the Agency may impose a cancellation charge up to 25% of the total quoted fee. In the event of cancellation after the commencement of fieldwork, notwithstanding the provisions of the clause 8.1, the Agency reserves the right to charge the full Fee.
7.5 In the event of a Syndicated Research project being cancelled by the Client after the commencement of the Services, no refunds will be due and all fees are payable and access to data and reports will remain unchanged for the duration of the contracted period.
7.6 In the event of a Syndicated Research project being cancelled by the Agency all access will be terminated, and the Agency will refund the Client for the pro-rata terminated period (calculated weekly) for which Services will not been supplied. The Agency accepts no liability for costs, losses or damages arising from a discontinuation of such Services.
8.1. The Agency shall not be liable to the Client, whether in contract, tort or otherwise for any consequential or indirect loss of profits, business, revenue, goodwill or anticipated savings and/or damage arising out of the performance or non-performance by the Agency or any of its obligations hereunder. Without prejudice to foregoing the Agency's entire liability under or in connection with this agreement whether in contract, tort or otherwise shall in no circumstances exceed the fees paid hereunder.
8.2. The Client is fully responsible for all damage or injury caused by test materials or test products provided to the Agency for research purposes in all cases, except when the Agency has been grossly negligent in the care of the test materials/products.
8.3 The Client shall not, directly or indirectly, solicit the employment of any of the Agency’s employees involved in performing the Services for the duration of the Services or for a period of 6 months following their completion without the prior written consent of the Agency.
8.3. The documents which constitute the Agreement between the parties are the following:
- this Agreement
- the Proposal
- ICC/ESOMAR code
- MRS Code of Conduct
- the Data Protection Act 1998
9. Applicable Law
9.1. Disputes that arise as a result of this agreement between the Agency and the Client shall be settled in accordance with the rules of arbitrage of ESOMAR.
9.2. This agreement will be governed by and constructed in accordance with English law.
9.3 Each clause or term of the Proposal constitutes a separate and independent provision. If any provisions of the Proposal are judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect. Failure to exercise or enforce any rights shall not amount to a waiver of such rights.
10. Transfer of Rights and Obligations
The Agency is not authorised to assign or transfer his rights and obligations as set out under this agreement, unless prior written consent is provided by the Client.