Terms and Conditions
a. Customer – means XXX
b. Customer Data – means the data inputted by the Customer or generated via the Equipment or Software through use of the Services
c. Data Protection Legislation – means legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
d. Documentation – means the documentation, advice, information or outputs provided to the Customer to support the usage of the Software or the Services.
e. Equipment – means the equipment to be installed at a Customer location defined in a quotation prepared by the Ipsos Service Provider
f. Fees – means the fee scale defined in an order acknowledgment / quotation prepared by the Ipsos Service Provider. Fees quoted are exclusive of expenses and prevailing government taxes (such as Value Added Tax).
g. Initial Term – means the term defined in the quotation
h. Ipsos Service Provider – means XXX
i. Mandatory Policies – means the Ipsos Policies on Public Releases, Privacy and Data Security, [INSERT AS APPLICABLE] and such other policies applicable to users of its Channel Performance services from time to time.
j. Services – means the services defined in a quotation prepared by the Ipsos Service Provider
k. Support Fees – means the support fees set out in its Support
Services Policy or (if the Customer is commissioning on the basis of subscription services) free of charge.
2. The Services shall be delivered by the Ipsos Service Provider (and not any other Ipsos company) in accordance with this Agreement and the Mandatory Policies.
3. Wi-Fi Analytics – Ipsos Retail Performance monitors the signals emitted from Wi-Fi enabled devices to perform aggregated data analysis for market research purposes. Each device has a unique ID associated with it, also known as the MAC address. No personal data is stored and all captured information is cleared from our database after four years.
Should you wish to remove your device from any form of Wi-Fi analytics undertaken by Ipsos Retail Performance, please email here.
Delivery and Setup
4. Delivery time shall not be of the essence. While reasonable efforts will be made to adhere to proposed delivery dates, such dates are estimates only and the Ipsos Service Provider shall not be liable for any losses, damages, costs or expenses incurred by the Customer as a result of not reaching an estimated delivery date.
5. Fees relating to Equipment are quoted DAP and the Customer shall bear the costs of Import duties & taxes
6. Effecting Delivery
a. The Ipsos Service Provider will notify the Customer if requested in advance when the Equipment is ready for delivery (“Delivery Notice”).
b. If within 7 days of the delivery notice the Customer fails to make suitable arrangements for delivery and installation, delivery will be deemed to have taken place 7 days after service of the Delivery Notice. As a result, risk in the Equipment shall pass to the Customer, and the company shall be entitled to demand payment.
c. The Customer shall indemnify the Ipsos Service Provider against any storage and handling charges and any other costs and expenses incurred by the company in respect of any of the products between the date of deemed delivery and the actual date of delivery.
d. The Customer shall ensure that any necessary preparatory work (as advised by the Ipsos Service Provider) is completed in accordance with the Ipsos Service Provider’s stated requirements prior to the agreed delivery date, and shall ensure that reasonable access is provided to install the Equipment.
Price, Payment and Term
7. The Customer shall pay the Ipsos Service Provider the Fees for the Term. If the Customer is taking a subscription, the Term shall automatically renew for renewal terms of one (1) year unless terminated in accordance with this Agreement.
8. Payment shall be made within 30 (thirty) days of receipt of invoice or (if earlier) such mandatory period for payments required by local laws.
9. In the event of late payment, the Ipsos Service Provider may
a. charge interest at 4% above LIBOR (except where local law prohibits the charging of interest on late payments); and
b. (at its discretion) withhold delivery of Equipment or suspend provision of Services until such time as the Fees have been paid.
10. This agreement shall, unless otherwise terminated as provided in this clause, continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for successive periods of 1 (one) year (each a Renewal Period) unless
a. either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
b. otherwise terminated in accordance with the provisions of this Agreement.
11. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
a. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
b. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
c. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
d. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
e. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
f. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
g. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
h. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
i. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
j. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
k. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above;
12. On termination of this agreement for any reason
a. all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
b. each party shall return and make no further use of any Equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
c. the Ipsos Service Provider may destroy or otherwise dispose of any of the Customer Data in its possession except where the Customer has not yet received such Customer Data, (the Customer shall pay all reasonable expenses incurred in returning or disposing of Customer Data); and
d. any 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 agreement which existed at or before the date of termination shall not be affected or prejudiced.
13. Where the Customer takes the Services on a subscription basis, the Customer shall
a. maintain the Equipment in good working order for the duration of the Term and any Extension Term (In the event that the Ipsos Service Provider determines that the Equipment has not been appropriately maintained for use elsewhere, the Ipsos Service Provider may invoice the Customer for replacement equipment at full reinstatement cost.)
b. Ensure that the Equipment is easily identifiable as property of the Ipsos Service Provider and not remove or obscure any labels or other identifying details indicating such Equipment belongs to the Ipsos Service Provider.
14. Where the Customer takes the Services without any Equipment (such as where the Customer has pre-existing hardware it wishes the Ipsos Service Provider to co-ordinate with), the Customer shall
a. ensure that the Customer’s hardware is of a sufficient standard and quality for the provision of services by the Ipsos Service Provider
b. maintain the Customer’s hardware in a good working order for the duration of the Term and any Extension Term (acknowledging that the Ipsos Service Provider may be unable to provide Services in the event of a malfunction or failure of any hardware provided by the Customer)
15. The Customer confirms that
a. without affecting its other obligations under this agreement, it shall comply with all applicable laws and regulations with respect to its activities under this Agreement;
b. it shall obtain and shall maintain all necessary licences, consents, and permissions necessary for the Ipsos Service Provider, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
c. it shall carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Ipsos Service Provider may adjust any agreed timetable or delivery schedule as reasonably necessary;
d. it shall ensure all authorised users use the Services and the Documentation in accordance with this Agreement and any terms and conditions provided by the Ipsos Service Provider from time to time AND that the Customer shall be responsible for any breaches by authorised users; and
e. it is, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Equipment and the Ipsos Service Provider’s systems. All problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet shall be the sole responsibility of the Customer.
16. The Customer shall provide the Ipsos Service Provider with
a. all necessary co-operation in relation to this Agreement;
b. all necessary access to such information as may be required by the Supplier in order to provide the Services, including but not limited to Customer Data, security access information and configuration services; and
c. ensure that its retail locations, network and systems comply with the relevant specifications required for the Services provided by the Ipsos Service Provider from time to time.
Intellectual Property, Ownership and Publicity
17. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have responsibility for its reliability and backup once it has been delivered to the Customer.
18. The Customer acknowledges and agrees that the Ipsos Service Provider and/or its affiliates and/or its licensors own all intellectual property rights in the Services, the Software and the Documentation. Except as expressly stated in this agreement, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Software or the Documentation. The Customer acknowledges and agrees that all Ipsos Intellectual Property Rights shall remain the sole and exclusive property of the relevant Ipsos company, and the Customer will not reverse-engineer, decompile or disassemble any Ipsos Intellectual
19. Subject to these terms, the Ipsos Service Provider grants the Customer a non-exclusive, non-transferable, royalty-free licence to
a. the Software and the Documentation for the duration of the term;
b. the Customer Data for the duration of the term and after termination.
20. The Ipsos Service Provider confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
21. Customer agrees that the Ipsos Service Provider and Ipsos group companies may maintain data, obtained in the course of performing Services in Ipsos databases for industry studies, benchmarking and validation of its professional norms and standards, provided that (i) such data will only be used or disclosed in an aggregated, manipulated form, and (ii) Ipsos will never identify the source of any such data or information as that of the Customer. In addition, Ipsos may retain one copy of the deliverables for archiving purposes.
22. The Ipsos Service Provider shall be permitted to use the name, logo and approved store images of the Customer as a current or former customer in its customer-facing materials. With the Customer’s prior written approval, such approval not to be unreasonably withheld, the Ipsos Service Provider shall also produce and disseminate case studies and press releases for mutual promotional benefit. It is acknowledged and agreed that no information which might reasonably be of commercial benefit to a competitor will be included in such media communications and that the Ipsos Service Provider shall liaise with the Customer’s in the creation of such case studies and/or press releases.
23. Public use of the Ipsos name (and data produced through engagement with the Ipsos Service Provider is subject to the Ipsos Public Release Policy from time in force.
Warranties and Liability
24. The Customer acknowledges that the provision of the Services is based upon samples and statistical treatment of information, therefore the Ipsos Service Provider cannot warrant total accuracy or predict or assure any particular substantive results of its research in advance.
25. The Ipsos Service Provider warrants that the Equipment will be fit for purpose relating to the Services for the Term, fair wear and tear excepted. This warranty shall not apply to any defect or malfunction of the products which is wholly or partly caused by (i) any maintenance or repair work to the products carried out by any person other than the Ipsos Service Provider or its authorised suppliers; (ii) tampering or interference with the products or any physical damage caused to the products by the Customer’s staff or customers or other third parties; (iii) failure due to defects or lacks of repair at the Customer’s premises including entrance(s) doors, or any other feature of the design of use of the premises which interferes with the Equipment’s sight-lines; (iv) any interruption or fluctuation in power supplies to the products; (v) any interruption or degradation in the network connectivity out of the Ipsos Service Provider’s control.
26. The warranty at clause 25 states the Ipsos Service Provider’s entire responsibility in relation to the Equipment and is in substitution for all other warranties and representations, express or implied, statutory or otherwise which are hereby expressly excluded. If the Ipsos Service Provider is in breach of the warranty set out above, it agrees to rectify the defect at its own expense or, at its option, to replace the Equipment.
27. The Services rely upon embedded software including software to enable the products to interface with the customer’s management information systems. The Ipsos Service Provider warrants and confirms that it has carried out reasonable testing to ensure that the Services are capable of delivering accurately to the operating system used by the Customer, but Ipsos cannot accept any liability for any failures as a result of issues caused by Customer system configurations or other applications operated by the Customer.
28. Except as expressly and specifically provided in this Agreement:
a. the Customer confirms and understands that the Services and Documentation are provided for general information only and not as support to any particular action (or inaction) on the part of the Customer.
b. The Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Ipsos Group shall have no liability for any damage caused by errors or omissions in any information, instructions or materials provided to the Ipsos Service Provider in connection with the Services, or any actions taken by the Customer based on Customer Data or Services or Documentation provided by the Ipsos Service Provider;
c. all warranties, representations, conditions and all other terms of any kind whatsoever implied by legislation or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement (including but not limited to any implied warranties relating to fitness for purpose); and
d. the Services and the Documentation are provided to the Customer on an “as is” basis.
29. Nothing in this agreement excludes the liability of the Supplier:
a. for death or personal injury caused by the Supplier’s negligence;
b. for breach of applicable Data Protection Legislation; or
c. for fraud or fraudulent misrepresentation.
30. Subject to clauses 24 – 29:
a. the Ipsos Service Provider shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
b. the Ipsos Service Provider’s total aggregate liability (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to 125% of the Fees paid or payable to the Ipsos Service Provider during the 12 months immediately preceding the date on which the claim arose.
Support and Maintenance Services
31. The Ipsos Service Provider will provide support and maintenance services in return for the Support Fee during normal business hours in accordance with the Ipsos Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
32. Where the Ipsos Service Provider is providing maintenance and support, the Customer shall provide all reasonable access and assistance to permit the relevant Ipsos Service Provider (or its designated supplier) to investigate or resolve relevant issues.
33. Each party may be given access to confidential information from the other party in order to perform its obligations under this agreement. A party’s confidential information shall not be deemed to include information that
a. is or becomes publicly known other than through any act or omission of the receiving party;
b. was in the other party’s lawful possession before the disclosure;
c. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or is independently developed by the receiving party, which independent development can be shown by written evidence.
34. Each party shall
a. hold the other party’s confidential information in confidence and not make the other’s confidential information available to any third party, or use the other’s confidential information for any purpose other than the implementation of this agreement; and
b. take all reasonable steps to ensure that the other’s confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
35. A party may disclose Confidential Information to the extent such confidential information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
36. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
37. Both parties will comply with all applicable requirements of the Data Protection Legislation. This is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
38. Under no circumstance shall Ipsos be responsible to Customer for failure to provide the services or for its delay in performance in accordance with this Agreement due to any event or condition, not existing as of the date of signature of this Agreement, not reasonably within the control of Ipsos as of such date, which prevents in whole or in material part the performance by Ipsos of its obligations hereunder (“Force Majeure”). Without limiting the foregoing, the following shall constitute events or conditions of Force Majeure: acts of State or governmental action, terrorism, riots, disturbances, war, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, epidemics, pandemics, fire, flood, hurricane, typhoon, earthquake, lightning and explosion or any other cause beyond Ipsos’ reasonable control. Should an event of Force Majeure last for more than thirty (30) days, then Ipsos shall have the right to terminate this Agreement or the relevant Sales Order without liability to Customer. Unless this Agreement or the relevant Sales Order has been terminated as set forth herein, both parties’ obligations hereunder shall resume upon the cessation of the event of Force Majeure.
39. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
40. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
41. This agreement and any other documents otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
42. Each party acknowledges that, in entering into this licence and the documents referred to in it OR annexed to it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) other than as expressly set out in this licence or those documents. Each party agrees that the only rights and remedies available to it arising out of or in connection such statements, representations, assurances or warranties shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud
43. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
44. If any provision or part-provision of this agreement 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 agreement is deemed deleted 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.
45. No party other than the Customer and the Ipsos Service Provider shall have any rights to enforce any part of these terms.
46. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
47. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
48. This agreement 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 the state or country of the Ipsos Service Provider.
49. If the Customer is located in a different country to the Ipsos Service Provider, the Customer shall appoint an agent for service of legal notices in the relevant country and promptly provide details of such agent to Ipsos Service Provider.