Terms of Engagement
This document sets out the terms of engagement (“Terms”) upon which we, Infiniti Research Limited, registered in England and Wales under No. 04922062, whose registered office is at 8 Wimpole Street, London, United Kingdom W1G 9SP or ( “Infiniti Research”, “we”, “our” or “us”), agree to provide to you, whether you are acting in your personal capacity or on behalf of your organisation or other principal, (“Customer”, “you” or “your”) the Services (as defined below). These Terms together with the Order (as defined below) shall constitute the agreement between Infiniti Research and Customer (the “Agreement”). If you are acting on behalf of a third party, you represent and warrant that you have authority to enter into this Agreement on behalf of such third party, and by entering into this Agreement, such third party will be bound by this Agreement from the Effective Date (as defined below). Your attention is drawn in particular to clauses 4.6, 9.5 and 11.2.
- Definitions and interpretation
- 1.1 All capitalised words used in the Agreement shall have the meaning see out in this clause or as defined elsewhere in the Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party from time to time during the Term.
“Confidential Information” means information disclosed by, or on behalf of, one party or its Affiliate to the other party, its Affiliate, or their officers, employees, agents and subcontractors in connection with or in anticipation of this Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It will include, without limitation, the content of each Report. Save for the content of any Report which shall, unless otherwise provided in this Agreement, be deemed confidential, Confidential Information does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.
“Effective Date” is the date that the Term commences, as set out in the Order.
“Fee” means the price of each Report, as set out in the Order. Unless expressly stated otherwise, all amounts are exclusive of VAT and similar taxes and levies, which will be charged in addition.
“IPR” means patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
“Order” means the Customer’s order to purchase a Report, which sets out the title of each Report ordered, Fee, Specifications, estimated delivery time, and other information.
“Report” means a category market business research report made according to the Specifications set out in the Order.
“Services” means our production of one or more Reports and related services as agreed between the parties in the Order.
“Specifications” means the specifications and scope relating to each Report as set out in these Terms and the Order.
“Term” means the period during which this Agreement is in full force and effect which starts on the Effective Date and ends on the earlier of the (i) completion of each Report set out in the Order, or (iii) earlier termination pursuant to clause 10.
“Third Party Materials” means any third party-owned materials which we incorporate in a Report at our sole discretion.
1.2 In this Agreement, unless the context otherwise requires:
(a) words importing the singular meaning, where the context so admits, include the plural and vice versa;
(b) a reference to a particular law is a reference to such law as it is in force for the time being, taking into account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it; and the clause and paragraph headings are included for ease of reference only and shall not affect the construction or interpretation of the clause or paragraph to which they refer.
2.1. These Terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with the Agreement.
2.2. We will provide the Services and Report to you as set out in these Terms and the Order.
2.3. By agreeing to the Order, the Customer confirms that the contents of the Order are correct.
2.4. The Order shall only be deemed accepted, and the Agreement comes into existence, when each party signs the Order at its discretion.
2.5. We have the right to reject your Order for any reason, including without limitation compliance or legal reasons.
3.1. We, and our licensors and subcontractors, prepare each Report using reasonable skill and care. Each Report will conform to the Specifications.
3.2. Each Report is valid as of the date when it was prepared.
3.3. Subject to clause 9.2(a), Infiniti Research and its Affiliates shall not be responsible for:
(a) any failure to inform you of (i) any information which falls outside the scope of the Report, (ii) any information which could not be found by using reasonable enquiry, or (iii) any future events or circumstances that came to light after the date the Report was prepared;
(b) any act or omission of any third party, including but not limited to circumstances in which we have reasonably relied on information provided or published by a third party which subsequently turns out to be inaccurate; or
(c) any statement of opinion, expectation or forecast provided as part of any Report and the same must not be relied on as a promise, warranty or representation.
3.4. Nothing in a Report shall be construed as, or deemed to be, legal advice.
3.5. You agree to comply with all Customer Obligations set out in the Order and provide us with such information and materials as we may reasonably request in connection with the Services, as may be further set out in the Order. In relation to any information or materials provided to us, you warrant and represent that you have all authority, licences and consents necessary to provide such information and materials, such information and materials are complete and accurate and our use of such information and materials in connection with this Agreement will not contravene any law or infringe any rights including without limitation third party rights.
3.6. Unless otherwise agreed in the Order, you accept that we will determine the style and formatting of each Report at our sole discretion.
3.7. You agree to review and provide feedback and instructions without delay on such documents, materials or draft Reports as we may reasonably require from time to time.
- Payments & Refunds
4.1. Customer shall pay each invoice within 7 days of receipt.
4.2. Unless otherwise agreed in the Order, Infiniti Research will invoice Customer (i) on a monthly basis, in respect of Orders with a Term exceeding 12 months, or (ii) in respect of any other Orders, as set out below:
(a) 50% of Fees together with all expenses incurred will be invoiced when the Order is agreed or as soon as practicable thereafter;
(b) the remaining Fees together with any expenses incurred will be invoiced when the Report is completed or as soon as practicable thereafter; and
(c) any Fees in respect of any additional services will be based on our standard hourly rates and invoiced monthly.
4.3. You shall pay to us all invoiced amounts in full, without any set-off, counterclaim or deduction, and in accordance with the instructions in the Order.
4.4. Unless you object, we may keep your payment details, for e.g. credit card details, for up to 2 years after the last transaction to facilitate future payments.
4.5. We may charge interest at the rate of 4% per annum above the base rate of the Bank of England as revised from time to time, from the due date until the date of actual payment, whether before or after judgment, on any amount which is overdue, save for any amounts validly disputed by you.
4.6. Any queries or disputes in relation to invoices must be notified to us in writing within 7 days from the invoice date, after which time our invoices will be deemed to be agreed and may not be disputed.
4.7. No Returns Policy. Due to the nature of Reports which are consumed instantly upon receipt, we operate a no returns policy. We encourage you to exhaust every opportunity to ensure a Report with the Specifications set out in the Order will meet your needs before agreeing the Order. Once you have received a completed Report, a cancellation or return is no longer possible.
4.8. If you are entitled to a refund under clauses 5.4 or 5.5, we will process the refund within 14 days of the approval of your valid refund request. If in our reasonable judgement we consider that you have breached our Agreement, we may deduct from such refund reasonable compensation for, without limitation, the costs incurred by us as a result of your breach of the Agreement and any costs incurred in connection with the Services.
5.1. We will use reasonable endeavours to comply with any agreed timeframes and provide the Report to you by the estimated delivery date set out in the Order.
5.2. You shall ensure that you are able to receive delivery of the Report from us by:
(a) using an appropriate and correctly configured browser with enabled downloads; and
(b) providing to us reasonable delivery instructions and being otherwise available to receive deliveries during our delivery times,
and we shall not be responsible for any delay or failed delivery which is due to your breach of these obligations.
5.3. Hardcopies of Reports may be provided at our discretion on request, subject to your payment of printing and postal charges. If we accept your request, we will usually dispatch within 2 business days following our receipt of full payment of the Fees in cleared funds including any postal charges.
5.4. If delivery is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this, we will not be liable for delays caused by the event. However, if there is a risk of substantial delay you may cancel your Order, unless the delay is caused by your breach of clause 5.2. Subject to clause 9.2(a), you shall have no further right to cancel the Order or claim any refunds or other remedy. Upon receipt of a valid cancellation request, we will refund in accordance with clause 4.8 any Fee in respect of a Report which you have paid for but which we failed to deliver.
5.5. If a Report does not meet the Specifications in accordance with clause 3.1, you may request that the Report be revised to meet the Specifications. If you wish to dispute a Report in accordance with this clause, you must do so within 7 days of actual delivery date. If in our reasonable judgment we accept your request, then, at our discretion, we will either provide you with a compliant Report or issue a refund to you in accordance with clause 4.8. Subject to clause 9.2(a), you shall have no further remedies in relation to a non-compliant (including without limitation non-compliance due to our breach of clause 3.1) Report delivered to you. For the avoidance of doubt, our acceptance of your request shall not constitute an admission of liability of any kind.
- Intellectual Property
6.1. Infiniti Research and/or its licensors shall retain ownership and IPR (present and future) in all Reports. Save for the limited licence at clause 6.2, Customer shall acquire no title, right, interest or other benefit in any Report whatsoever.
6.2. Infiniti Research grants the Customer a fully paid-up, exclusive, royalty-free, non-transferable, perpetual but revocable (in accordance with clauses 10.3 and 10.4) and worldwide licence, with the limited right to sublicense in accordance with clause 6.3, to:
(a) view, copy and make available within its organisation the Report; and
(b) create derivative works from the Report, excluding any Third Party Materials,
solely for the Customer’s own legitimate internal business purposes and provided that the Report must not be made publicly available, in whole or part, including by way of quoting or referring to it (the “Licence”).
6.3. Customer may disclose the Report in accordance with clause 8.1, solely in connection with the Customer’s own legitimate internal business purposes and on terms which are at least as protective of Infiniti Research as this Agreement. Any other sharing, disclosure, publication or other transfer of a Report, in whole or part, whatsoever shall be prohibited, except with the prior written approval of Infiniti Research. Such approval shall not be unreasonably withheld but may be subject to additional Fees.
6.4. Cooperation & Audit. Customer will, at its own expense, cooperate and as soon as reasonably practicable respond to each request for such records and documentation as Infiniti Research and its licensors may reasonably require in order to investigate the Customer’s compliance with clauses 6 and 11.2 and other matters concerning the use and protection of IPR. If Infiniti Research or its licensor is not satisfied with the records provided by (or on behalf of) the Customer it may on no less than 7 days’ notice and on reasonable grounds, other than in the event of allegations of gross misconduct or fraud where no notice will be required, attend the Customer’s (and its Affiliates’) offices and have access to such documentation, records, Users, personnel and equipment that is reasonably required in order to determine whether Customer has complied with this Agreement. If it transpires that a balancing payment is required, then the Customer will pay the costs of the audit together with the balancing payment within 14 days of invoice date. If no balancing payment is required, each party will bear its own costs of the audit.
6.5. Further Assurance. You shall, as and when requested by us, do all acts and execute all documents as may be reasonably necessary to give effect to the provisions of this Agreement (including, without limitation, this Clause 6).
6.6. You grant us a fully paid-up, non-exclusive, revocable and worldwide licence to use your business name, brand and logo in connection with our marketing activities
- Data Protection
7.1. “Data Protection Law” means in relation to each party the data protection and data privacy laws applicable to that party, including, where applicable, the Data Protection Act 1998, as amended or replaced from time to time, including by the General Data Protection Regulation or similar law. The terms “data controller”, “data processor”, “personal data”, “processing” or similar terms shall have the meaning as defined in the Data Protection Law.
7.2. The parties agree that for the purposes of Data Protection Law, each party is a data controller in relation to the personal data in Reports (collectively, the “Report Personal Data”).
7.3. Each party warrants on a continuous basis to the other party that it shall comply with its obligations under applicable Data Protection Law in relation to all processing of Report Personal Data.
7.4. We will process personal data you provide to us in accordance with our Privacy Notice.
8.1. Each party shall keep Confidential Information confidential and must not disclose Confidential Information, except to its Affiliates, officers, employees, agents or subcontractors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential.
8.2. Customer must implement appropriate technical, physical and organisational security measures to safeguard the confidentiality of Confidential Information.
8.3. You may disclose Confidential Information when required by law including without limitation in response to a lawful witness summons, subpoena or similar compulsory process received from a regulatory body, governmental agency or similar body or a court of competent jurisdiction, after giving reasonable notice to us, if giving such notice is legally permissible, such notice to be sufficient to give us the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
- Liability and Indemnity
9.1. Save as expressly provided in this Agreement, the parties agree that any conditions, warranties and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
9.2. Nothing in this Agreement will exclude or limit (a) the liability of either party which cannot be limited or excluded by applicable law, and (b) your liability for any breach of clauses 6, 7 or 8 and your liability under clauses 9.5 and 10.2.
9.3. Subject to clause 9.2, neither party will be liable under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, for any:
(a) loss of anticipated savings, investment or expenditure;
(b) loss of business opportunity, revenue, customers or loss of profits;
(c) loss of goodwill; or
(d) indirect, consequential or special losses or punitive, incidental or exemplary damages,suffered or incurred by the other party, whether or not such losses were within the contemplation of the parties at the date of this Agreement.
9.4. Subject to clauses 9.2 and 9.3, the aggregate liability of Infiniti Research under or in connection with this Agreement whether in contract, tort (including negligence), or otherwise, is limited to 100% of the total Fees paid by you under the Agreement.
9.5. The Customer shall and hereby agrees to indemnify Infiniti Research and its Affiliates and their officers, employees, agents and subcontractors (each an “Indemnified Party”) from and against any claims, losses, demands, actions, liabilities, fines, penalties, reasonable expenses, damages and settlement amounts (including reasonable legal fees and costs) incurred by any Indemnified Party arising out of or in connection with any breach of clauses 6, 7, 8, 11.2 and 11.12.
- Term and Termination
10.1. This Agreement will commence on the Effective Date and will continue for the duration of the Term.
10.2. Customer may terminate the Agreement by providing one month’s prior written notice to Infiniti Research. Upon termination, all Fees in respect of the entire Term and all current and future expenses incurred by us in connection with the Services will become immediately payable whether or not the Services have been completed. However, where we have agreed a fixed Timeframe or Estimated Delivery Date in the Order, upon termination you will be liable only for such percentage of total Fees equal to the percentage of the total time passed, e.g. if the Estimated Delivery Date is 10 weeks from Effective Date and the contract is terminated after 4 weeks from commencement, then 40% of the total Fees will be payable to us.
10.3. Either party may terminate the Agreement and/or Licence:
(a) if the other party shall have caused a material breach of the Agreement and fails to remedy such breach within 15 days following written notice from the non-breaching party; or
(b) it is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due for payment; a petition is presented or documents filed with a court or any registrar or any resolution is passed for its winding-up, administration or dissolution or for the seeking of relief under any applicable bankruptcy, insolvency, company or similar law save where such resolution is made in the context of an internal solvent restructure or reorganisation of its group of Affiliates; any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, supervisor, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets; any event analogous to the events listed above takes place in respect of it in any jurisdiction.
10.4. Infiniti Research may terminate the Agreement and/or Licence with immediate effect if the Customer acts in breach of any provision in clauses 6, 7, 8, 9.5 11.2 or 11.12.
10.5. Clauses 3.3, 3.4, 3.5, 4.1 – 4.7, 6, 7, 8, 9, 10.4 and 11 of this Agreement and of any other clauses which under their terms or by implication ought to survive, will survive the expiration or termination of this Agreement.
11.1. Assignment. Subject to the remainder of this clause, neither party may assign, novate, subcontract or otherwise transfer the Agreement, in whole or in part, to any entity or person without the written consent of the other. Infiniti Research may subcontract its obligations under this Agreement without notice. Either party may upon written notice to the other party assign or novate this Agreement to a successor entity in the event of an acquisition, merger or restructuring, whether by equity or asset transfer. Any other attempt to assign, novate, subcontract or otherwise transfer the Agreement is void. Neither party may hold this Agreement on trust for any other person.
11.2. Liability for third parties. You shall ensure that each person who receives a Report or any Confidential Information complies with this Agreement as if they were a party to it. You shall be responsible for each act and omission of each such party as if they were your own acts and omissions.
11.3. Severability. If any term of this Agreement, in whole or in part, is invalid, illegal or unenforceable, the rest of the Agreement will continue in force unaffected.
11.4. Force Majeure. Subject to clause 9.2(a), neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
11.5. No Waiver. Neither party will be treated as having waived any rights by not exercising, or delaying the exercise of, any rights under this Agreement.
11.6. No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
11.7. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party (under the Contracts (Rights of Third Parties) Act 1999 or otherwise) unless it expressly states that it does. No Report must be used or relied on by any third party without the prior written consent of Infiniti Research; such consent will not be unreasonably withheld but may be subject to applicable fees.
11.8. Entire Agreement. (i) Subject to clause 9.2, the Agreement sets out all terms agreed between the parties and supersedes all previous or contemporaneous agreements between the parties relating to its subject matter. (ii) In entering into this Agreement neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty, whether made negligently or innocently, except those expressly set out in this Agreement.
11.9. Amendments. Any amendment must be (i) in writing, (ii) state that it is amending this Agreement and (iii) agreed by a duly authorised representative on behalf of each party.
11.10. Conflicting Terms. To the extent of any conflict between the Terms and the Order these Terms will prevail, unless expressly agreed otherwise in writing.
11.11. Notices. All notices of termination or breach must be in English, in writing and addressed to the other party’s primary contact person or legal department. Notice will be treated as given on receipt, as verified by a valid receipt, electronic log or other valid evidence of service.
11.12. Compliance with Anti-Bribery Laws. In performance of its obligations under this Agreement, each party will comply with all applicable commercial and public anti-bribery laws, including the Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (“Anti-Bribery Laws”), which prohibits corrupt offers of anything of value, either directly or indirectly, to a government official to obtain or keep business or to secure any other improper commercial advantage. “Government officials” include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, each party will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform.
11.13. Dispute Resolution. Save for the early issuing of a claim in order to avoid the lapse of a limitation period at law, applying for injunctive relief which is necessary in order to prevent or mitigate loss or damage to property, IPR or loss of confidentiality, no party may commence any court proceedings in relation to any dispute arising out of or in connection with this Agreement. If any such dispute arises: (a) the parties shall within 30 days of a written request from one party to the other, meet in a good faith and attempt to resolve the dispute; and (b) if the dispute is not resolved or the meeting does not take place within that time, the dispute shall be referred to and finally resolved by arbitration under the LCIA Arbitration Rules, which are deemed to be incorporated by reference into this clause. The language to be used in the arbitration shall be English; the governing law of the contract shall be English law; the number of arbitrators shall be three; and the seat, or legal place, of arbitration shall be London. The arbitration shall be binding.
11.14. Governing Law and Jurisdiction. This Agreement is governed by English law, and, subject to clause 11.13, the parties submit to the exclusive jurisdiction of English Courts, in relation to any dispute (contractual or non-contractual) concerning this Agreement save that either party may apply to any court for an injunction or other relief to protect its property, IPR or Confidential Information.