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Schedule 1
General Terms
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
“Affiliate” means, in respect of Kantar, any entity (excluding Europanel) which, from time to time both: (i) directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control of, Kantar; and (ii) is trading as Kantar (and “Kantar Affiliate” shall be construed accordingly); and, in respect of Client, any entity, which is Controlled by Client (and “Client Affiliate” shall be construed accordingly);
“Applicable Law” means any applicable statute, rule, regulation, ordinance, order, directive, mandatory code, judgment, decree, injunction, writ, determination, award, permit, licence, authorisation, requirement or decision of or agreement with or by any legislative, administrative, judicial or other governmental authority, from time to time in the Territory and otherwise applicable to the Parties based on the territories in which they are incorporated (excluding any Codes of Practice, but including Data Protection Legislation and Anti-Corruption Laws);
“Anti-Corruption Laws” the Foreign Corrupt Practices Act, 15 U.S.C. §78dd-2, the UK Bribery Act 2010 and any anti-bribery or anti-corruption laws of the jurisdiction in which the Services are being provided, as amended from time to time;
“Client Materials” means any Materials provided by the Client to Kantar;
“Codes of Practice” means the ICC/ESOMAR International Code on Market, Opinion and Social Research and Data Analysis to the extent directly applicable to the provision of the Services by Kantar (and any other specific local code of practice (such as the Market Research Society Code of Conduct in respect of the UK) as may be set out in a SOW);
“Confidential Information” means information that: (a) is marked or otherwise identified as “confidential” or with a similar designation, or (b) even if it is not marked or identified as “confidential,” a reasonable person would recognise as information that ought to be treated as confidential information, including Kantar Materials; and any other information relating to know-how, formulae and processes, technical or non-technical data, patterns, compilations, programs, methods, techniques, databases or business affairs of the applicable party or one of its Affiliates; financial information, contractual information, client information, prices and costs, data related to regulatory submissions; Proposals and study designs not forming the subject of an executed SOW and any other relevant information furnished to the recipient by or on behalf of the other party under this Agreement or any SOW;
“Control” means, in respect of any entity: (i) possession, direct or indirect through one or more intermediaries, of the power to direct the management or policies of such entity, whether through ownership of voting securities, by contract relating to voting rights, or otherwise; or (ii) ownership, direct or indirect through one or more intermediaries, of more than 50% percent of the outstanding voting securities or other ownership interest of such entity (and “Controls” and “Controlled” shall be construed accordingly);
“Custom Services” means custom research, data, insights, information and/or other services to be performed by Kantar and/or its Affiliates specifically for Client [and/or its Affiliates], as more particularly described in any SOW (including both ad hoc and continuous services (or a combination of both), as identified in the relevant SOW);
“Data Protection Legislation” means any and all data protection, privacy and/or other laws and/or regulations in any country applicable to the processing of personal data under any SOW.
“Deliverables” means the specific agreed documentation, outputs, reports and/or other materials that are created solely for Client and expressly identified as such in a SOW and delivered to Client by or on behalf of Kantar while performing the Custom Services, excluding all Syndicated Services;
“Expenses” means, in respect of any SOW, those out-of-pocket expenses incurred by Kantar in the course of providing the Services pursuant to that SOW and not expressly included in the Fees;
“Feedback” means all suggestions, comments recommendations, improvements or any other feedback based on the Services and/or Deliverables provided by Client to Kantar;
“Fees” means, in respect of any SOW, the fees described to be paid by Client to Kantar pursuant to that SOW, as described therein excluding Expenses;
“Freelancer” means, in respect of any SOW, an independent contractor who is a natural person (whether contracting as an individual or through a personal service company or provided by a freelancer agency) hired by Kantar from time to time on an as-needed basis and allocated to provide Services in connection with that SOW;
“Force Majeure” means an occurrence beyond the control and without the fault or negligence of the Party affected and which the Party is unable to prevent or provide against by the exercise of reasonable diligence including acts of government, war, terrorism, rebellion, flood, fire, explosions, earthquakes, disease, epidemic, pandemic (and any emergency measures and/or government-imposed restrictions or guidance imposed to manage any disease, epidemic and/or pandemic);
“Initial Term” shall mean the minimum term from the Commencement Date as identified in a SOW.
“IP Rights” means all trade secrets, patents, rights to inventions, copyright (including rights in computer software) and related rights, moral rights, database rights, utility models, rights in designs, trademarks, service marks, internet domain names, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not), rights in goodwill, or to sue for passing off, and all other proprietary rights and other similar or equivalent rights or forms of protection in each case whether registered or unregistered and including all applications (or rights to apply) for, for renewals and extensions of, such rights as may now or in the future exist anywhere in the world;
“Kantar IP Rights” means, in respect of any SOW, all IP Rights owned by Kantar, its Affiliates or Subcontractors prior to that SOW, developed separately from it or developed in the course of the provision of the Services, excluding Deliverables. Notwithstanding the foregoing, Kantar IP Rights include IP Rights in any Proposal, Kantar Materials and Kantar Tools;
“Kantar Materials” means (a) Materials belonging to Kantar which exist at the date of execution of an SOW; (b) Materials developed by or on behalf of Kantar during the term of an SOW (whether in the course of the provision of the Services are not) which are not Deliverables; (c) proposals and designs for studies incorporated in an SOW; and (d) data and content developed or collected by or licensed to Kantar prior to or outside the scope of any SOW or having a generic nature or otherwise being of general applicability to Kantar’s business. All copies, reproductions, improvements, modifications, adaptations, translations, Feedback and all other derivative works of, based on or otherwise using any Kantar Materials are themselves also Kantar Materials. Third Party Materials are not Kantar Materials;
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“Kantar Tools” means all algorithms, methods, processes, databases, norms, formulae, works, questionnaires and template questionnaires, systems, software and computer programs, including application software, platforms, enhancements, supporting documentation and materials and all other works or items, where the related IP Rights are owned by, or licensed to, Kantar prior to the commencement date of the applicable SOW or which are not Deliverables;
“Materials” means information, output, documents, reports, data, programs, plans, products, advertising materials (including appended data, information databases, calculated scores and specialised database applications), software, algorithms, source code, object code, research tools, product taxonomies and dictionaries, analytical techniques and frameworks, methodologies, norms, formulae, works, questionnaires, systems, computer programs, including application software, platforms, enhancements, supporting documentation and other work processes and information, whether in hard copy or digital format;
“Participant(s)” means individuals responding to market research questions and stimuli;
“Platform Services” means access to the Platform described in any SOW;
“Public Statement” means any advertising, marketing material, press releases, correspondence with any third parties or similar external, public-facing communications;
“Services” means Custom Services, and/or Platform Services relevant to the applicable SOW;
“Service Specific Terms” means in respect of each of the Custom Services, the Syndicated Services, and/or the Software Delivery Services, the terms in the relevant Schedule to this Agreement applicable to such Services;
“SOW Commencement Date” means the commencement date identified in the relevant SOW;
“SOW Term” has the meaning set out in Section 11.1;
“Subcontractor” means any third party (excluding any Kantar Affiliate, Freelancers or Third Party Suppliers) to whom Kantar has delegated any function or obligation to provide the Services or Deliverables to Client;
“Territory” means the territory defined in the SOW;
“Third Party Materials” means any Materials to be acquired or otherwise used by Kantar from a third party in the provision of the Services as may be identified in the SOW; and
“Third Party Suppliers” means any third parties (excluding Freelancers) engaged by Kantar who are: (i) providers of ancillary services (including post, courier, communications, travel and transport services); or (ii) providers of pre-made solutions (including standard software); or (iii) agencies introducing freelancers or fieldworkers; or (iv) other third party suppliers that (a) Kantar is required by Client to engage; or (b) otherwise provide goods and/or services.
1.2 Interpretation
(a) For the purposes of these General Terms:
(i) any reference to “Parties” shall be to the relevant parties to the relevant SOW (and “Party” shall mean any one of them);
(ii) any references to “Kantar” shall mean, in respect of any SOW, the relevant Kantar Affiliate that is a party to that SOW; and
(iii) any references to “Client” shall mean, in respect of any SOW, the relevant Client Affiliate that is a party to that SOW;
2 SERVICES
2.1 Kantar shall:
(a) use reasonable skill and care in providing the Services and any Deliverables for the duration of the SOW Term; and
(b) use reasonable endeavours to provide the Services and to deliver any Deliverables in accordance with applicable Codes of Practice.
2.2 Request For Proposal:
(a) In response to any such request for Services from Client or Client Affiliate, Kantar may issue a commercial proposal to the Client or Client Affiliate (as applicable) which will set out whether Kantar wishes to perform the requested Services, the scope of the Services to be performed and the relevant commercial terms (“Proposal”).
(b) Following receipt of any Proposal, the Client shall act in good faith when responding to such Proposal and, when any Proposal is agreed, the relevant Parties (or their Affiliates) shall, unless agreed in writing otherwise, enter a SOW to reflect such agreed Proposal.
3 CLIENT OBLIGATIONS
3.1 Client shall:
(a) cooperate with Kantar in all matters relating to the Services;
(b) supply Kantar with all Materials or approval as reasonably requested by Kantar from time to time and otherwise required by Kantar for the proper provision of the Services and in accordance with any agreed timelines;
(c) perform any obligations, activities and responsibilities in order to enable Kantar to perform its obligations under any SOW;
(d) be solely responsible for ensuring that the Client Materials:
(i) comply with all Applicable Law;
(ii) are accurate and accompanied by all relevant information on their use or consumption; and
(iii) are otherwise fit for use in the context of the Services as envisaged by the SOW.
3.2 If Client fails to comply with Section 3.1, Client shall be liable for the consequential delays and reasonable additional costs and expenses incurred by Kantar, if any, in providing the Services and/or any Deliverables.
3.3 Without prejudice to Sections 3.1 and 3.2, Client acknowledges and agrees that:
(a) the response rates to surveys or questionnaires cannot be predicted and are not guaranteed by Kantar;
(b) all figures contained in Services or Deliverables will be estimates derived from sample surveys and subject to the limits of statistical errors/rounding up or down;
(c) unless stated to the contrary in the relevant SOW, data collection sample achievement will be within a margin of +/- 5% of the stated numbers;
(d) the results of qualitative research cannot be projected onto the overall population due to sample selection, interviewing methods and sample size;
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(e) the Services and Deliverables consist of the results of research, analysis and opinions utilising methods and practices which Kantar deems appropriate;
(f) all statements, facts, information, analyses, interpretations and opinions contained in any report is provided ‘as-is’ and are made without representation or warranty as to the accuracy, completeness, usefulness, merchantability, fitness for a particular purpose, or otherwise; and
(g) it shall be solely responsible for its interpretation of the Services and Deliverables and any actions taken as a result.
3.4 Subject to Sections 5.5 and 5.6 neither Party shall issue or release any Public Statement (including, in the case of Client, in its use of the benefit of the Services or any Deliverable), or otherwise use the other Party's trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other Party. If Client makes a Public Statement in breach of this Section 3.4 3.3(g), which includes, in Kantar’s opinion, study findings that are incorrect, distorted or incomplete, Kantar shall have the right, at Client’s cost, to make its own release of any or all study findings for clarification purposes, without being in breach of this Agreement or any SOW.
3.5 The Client shall, or shall procure that the relevant Client Affiliate shall, fully brief Kantar or the relevant Kantar Affiliate (as applicable) as to its requirements or objectives prior to entering a SOW in relation to the provision of any Custom Services and shall keep Kantar (or the relevant Kantar Affiliate) so briefed during the term of any such SOW and if agreed shall update the SOW.
4 FEES AND PAYMENT TERMS
4.1 Client shall pay the Fees and Expenses as set out in this Section 4 and as otherwise set out in the relevant SOW.
4.2 Save as otherwise set out in the relevant SOW, Client shall be liable to pay Expenses reasonably incurred by Kantar in the provision of the Services and any Deliverables subject to Client’s prior written consent, such consent not to be unreasonably withheld or delayed.
4.3 Unless specified to the contrary in the relevant SOW the Fee and any Expenses shall be proposed, invoiced and payable in the relevant currency listed in the relevant SOW; and
4.4 Payment terms in respect of all Kantar invoices are strictly 30 days from the date of invoice.
4.5 Without prejudice to any other rights or remedies Kantar may have, if Client fails to make any payment due to Kantar by the relevant due date, then:
(a) Kantar shall be entitled to charge interest at the rate permitted by statute from the invoice date to the date when Kantar receives full payment;
(b) Kantar reserves the right to pass on any costs incurred as a result of exchange rate movements during such period of delay; and
(c) Kantar may suspend the provision of Services until payment has been received by Kantar.
4.6 All sums payable under any SOW:
(a) Are, unless expressly set out in that SOW, exclusive of any VAT or any other applicable tax or duties (including withholding tax) which, where applicable, shall be added to the relevant invoice at the rate prevailing in law at the relevant time and shall be payable by Client to Kantar;
(b) shall be paid in the currency set out in the SOW to the credit of Kantar's bank account, details of which shall be notified to Client as and when necessary; and
(c) shall be paid without set-off, deduction or withholding and if Client is obliged under any applicable law to make any deduction or withholding, Kantar shall increase its fees by the amount necessary to ensure that it receives the Fee as a net payment and Client shall pay the increased or additional fees.
4.7 Prices quoted in a currency other than the local currency of the Kantar Affiliate in the Proposal are indicative only. At the time that the Client agrees to enter into a SOW, Kantar may either enter into a forward contract with its bank based upon the project specific invoicing schedule and contractual payment terms to finalise the non-GBP fees for the SOW, or it reserves the right to change the final price if the exchange rate moves by +/- 3% during the course of the SOW.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 Kantar shall own the IP Rights in the Kantar IP Rights.
5.2 Client acknowledges Kantar’s obligations under its Codes of Practice and agrees that the provision of the Services (and any Deliverables) are for Client’s internal use only.
5.3 The Client shall not: (i) make any Public Statement that contains the whole or any part of any Deliverable or any part of the Services (unless expressly authorised in writing by Kantar); (ii) use the Services (or any Deliverable) in any manner that could or does exaggerate, distort or misrepresent the findings of or data supplied by Kantar (or otherwise cause Kantar to breach Applicable Laws or any Codes of Practice)]; (iii) use in any legal or administrative proceedings save to the extent that such use is compelled by legal process and provided that Client shall provide Kantar with as much notice as reasonably practicable and take such steps reasonably requested by Kantar to protect the confidentiality and commercial sensitivity of the relevant Services and/or Deliverables.
5.4 To the extent that the use of any Kantar IP Rights are set out in a SOW, Kantar hereby grants Client a non-exclusive, non-sub-licensable, licence during the term of the relevant SOW to use the specified Kantar IP Rights solely as set out in the relevant SOW and this Agreement. Such licence shall be terminable in the event that Client fails to make payment in full under the relevant SOW or otherwise fails to comply with any terms for use of the Kantar IP Rights.
5.5 Notwithstanding anything herein, Client acknowledges that Kantar may reference Client’s name in any marketing activity or public statement made by Kantar or its Affiliates in relation to its Syndicated Services whether or not the Client has subscribed to those Syndicated Services.
5.6 It is agreed that the Kantar shall be entitled, both during and after the termination or expiry of this Agreement, to use all Deliverables, Client IP Rights and Confidential Information and other findings and records resulting from the Services for its own internal purposes, as part of its own databases and for purposes connected with its business, including in connection with any relevant legal dispute.
6 DATA PROTECTION & PRIVACY
6.1 The data protection terms at https://www.kantar.com/client-data-protection-agreement shall apply.
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7 CONFIDENTIALITY
7.1 At all times during the SOW Term and for a period of two years after its expiry or termination, each Party (“Receiving Party”) shall, keep confidential all Confidential Information.
7.2 The Receiving Party shall:
(a) only use such information only for the purpose of performing its obligations under this Agreement or any SOW; and
(b) treat all Confidential Information of the disclosing Party as secret and confidential and shall not without the express written consent of the disclosing Party, disclose the Confidential Information or any part of it to any person except:
(i) to Subcontractors, the Receiving Party’s professional advisers (and where the Receiving Party is Kantar, to any Kantar Affiliate) who reasonably need to know such information and provided that such persons are bound by equivalent obligations of confidence; or
(ii) as may be required by law or by a court, regulatory authority or other competent authority.
8 WARRANTIES
8.1 Each Party warrants that it has the authority to enter into this SOW and undertakes to comply with Applicable Laws in its performance of its obligations and exercise of its rights hereunder.
8.2 Kantar warrants that use of the Kantar Materials as provided by Kantar to Client, used in the manner contemplated by the applicable SOW and in accordance with the terms of this Agreement, will not infringe the IP Rights (excluding any patent) of any third party in the Territory.
8.3 Client hereby:
(a) warrants that:
(i) use of the Client Materials by Kantar as provided by Client to Kantar in the manner contemplated by the SOW will not infringe the rights (including IP Rights) of any third party; and
(ii) Client Materials provided to Kantar by or on behalf of Client and/or any advertising, promotional and marketing activities conducted by Client, shall not be deceptive, misleading, obscene, defamatory, or otherwise breach any Applicable Law.
(b) undertakes to obtain all necessary consents to supply or otherwise make available Client Materials to Kantar for the purposes for which they are supplied.
8.4 Except for the express warranties in this Agreement, each Party hereby disclaims all warranties, whether express, implied, statutory or other, under or in connection with this Agreement or any subject matter hereof.
9 INDEMNIFICATION
9.1 Kantar shall indemnify the Client and keep the Client indemnified from and against all losses, damages, liabilities, claims, reasonable costs and expenses (including reasonable legal costs) which are incurred and/or suffered by the Client arising out of or in connection with any third party claim that Kantar is in breach of its warranty at Section 8.2.
9.2 The Client shall indemnify Kantar and keep Kantar indemnified from and against all losses, damages, liabilities, claims, costs and expenses (including reasonable legal costs) which are incurred and/or suffered by Kantar and its Affiliates arising as a result of:
(a) any breach by Client of Section 5.2, 5.3 and 8.3 above;
(b) any breach of Data Protection Legislation; and
(c) any investigation or comply with any request made by any competent regulatory authority in relation to: (i) Client or any of its Affiliates; (ii) the Client’s industry; and/or (iii) any act or omission of Client.
9.3 If any third party makes a claim, or notifies an intention to make a claim, against the indemnified Party which may reasonably be considered likely to give rise to a liability subject to indemnification pursuant to Section 9.1 or 9.2 (“Claim”), the indemnified Party shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the indemnifying Party, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the indemnifying Party (such consent not to be unreasonably conditioned, withheld or delayed);
(c) give the indemnifying Party and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the indemnified Party, so as to enable the indemnifying Party and its professional advisers to examine them and to take copies (at the indemnifying Party’s expense) for the purpose of assessing the Claim;
(d) give the indemnifying Party the option to take conduct of the negotiation, defence or settlement of such claim provided that it:
(i) consults with the indemnified Party on all substantive issues which arise during the conduct of such negotiation, defence and/or settlement;
(ii) takes due and proper account of the interests of the indemnified Party; and
(iii) shall not settle or compromise any claim without the indemnified Party’s prior written consent (not to be unreasonably withheld or delayed).
10 LIABILITY
10.1 Subject to Section 10.2, neither Party to any SOW shall be liable to the other Party (or its Affiliates), whether in contract, tort (including negligence), indemnity liability breach of statutory duty or otherwise, arising under or in connection with this SOW for: loss of profit loss of anticipated savings; loss of business opportunities; loss of, or, damage to, reputation or goodwill; loss of earnings or revenue; loss of data; or any indirect, economic or consequential loss. 10.2 Subject to clause 10.3, the maximum liability of Kantar and Client (and/or their Affiliates) under or arising in connection with any individual SOW, whether such liability arises in contract, tort (including negligence), indemnity liability, breach of statutory duty, or otherwise, shall not exceed the higher of: (i) £100,000 (one hundred thousand pounds) and (ii) the sum of amounts paid and/or payable under the relevant SOW by Client in the 12 months prior to the event giving rise to such liability arises.
10.3 Nothing in this Agreement shall limit or exclude:
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(a) the liability of either Party for death or personal injury resulting from its negligence or for fraud or fraudulent misrepresentation;
(b) the liability of Client under any SOW: (i) for any delay in paying or failure to pay the Fees or Expenses; [(ii) pursuant to the indemnity under Section 9.2] and/or (iii) as otherwise set out in the relevant Service Specific Terms.
(c) Client’s breach of (i) any licence granted for Syndicated Services; and/or (ii) any Product Testing conducted by Kantar.
10.4 Kantar shall not be liable for any loss howsoever arising from or in connection with the Client's interpretation of, or any action taken by it based on, any conclusions, findings, Deliverables or recommendations that are part of the Services.
11 TERMINATION
11.1 Each SOW shall commence and expire on the relevant commencement and expiry dates set out therein (such term being the “SOW Term”).
11.2 Following the early termination of any SOW, Kantar may invoice Client for any outstanding Fees for work delivered and work in progress up to the effective termination date along with any unavoidable third party committed costs and expenses due and owing under the applicable SOW. In addition, Kantar may invoice Client any applicable set-up costs not yet recovered and/or recover any applicable discounts which were conditional upon the original agreed scope. Kantar agrees to use its reasonable efforts to mitigate all third party costs after it receives notice of termination. Client shall pay all such Fees and costs incurred in accordance with the payment terms set forth in this Agreement.
11.3 Each Party shall be entitled to terminate any individual SOW with immediate effect at any time, by giving written notice of termination to the other Party, in the event that such other Party:
(a) has committed a material breach of the SOW which, if capable of remedy, has not been remedied within forty-five (45) days (or such longer period as expressly set out in the relevant SOW) of written notice from the non-breaching Party; or
(b) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets or ceases, or threatens to cease, to carry on business.
11.4 Termination of any particular SOW shall not affect:
(a) any other Statements of Work which shall continue in accordance with their terms; or
(b) the accrued rights, remedies, obligations or liabilities of the Parties existing under that SOW as at the date of that termination or expiry.
11.5 Regardless of expiry or termination of any SOW, provisions which expressly or by implication have effect after termination shall continue in full force and effect.
11.6 Upon termination or expiry of any SOW, unless prevented from doing so by Applicable Law, each Party shall, upon the request of the other Party and to the extent reasonably practicable to do so, return or destroy all Confidential Information disclosed to it by the other Party in connection with that SOW.
12 FORCE MAJEURE
12.1 Neither Kantar nor Client shall be in breach of this Agreement nor any SOW, nor liable for delay in performing, or failure to perform, any of its obligations under the same (except for Client’s obligations to pay amounts due including payment of Fees and Expenses), to the extent that such delay or failure results from Force Majeure. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, the Party not affected may terminate the relevant SOW by giving not less than fourteen (14) days' written notice to the other Party.
12.2 If Services are shortened, delayed, cancelled or terminated early by the Client or as a result of Force Majeure the final invoice will include, the balance of the fees for providing the Services to the date of termination plus any reasonable costs and expenses committed by Kantar prior to the change in Services, and/or any set-up costs not yet recovered, and/or recovery of any discounts which were conditional upon the original agreed scope (if applicable).
13 GENERAL
13.1 Each SOW shall constitute the entire agreement between the Parties (and/or their respective Affiliates) in relation to their subject matter and supersede and extinguish all previous drafts, agreements, arrangements and understandings between the Parties, whether written or oral, relating to such subject matter provided that any Client acknowledges that, in entering into any SOW, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in any SOW.
13.2 The Parties shall (and shall each use all reasonable endeavours to procure that any necessary third party shall) promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to any SOW.
13.3 Any notice given to either Party under any SOW shall be by post or by email to the relevant person identified as a contact person for that Party in that SOW. Notices sent by registered first class post or recorded delivery shall be deemed to be served three (3) working days following the day of posting. Notices sent by email shall be deemed to be served 24 hours after sending if sent to the correct email address and no notice of delivery failure is received.
13.4 The Parties are independent contractors and nothing in this any SOW is intended to, or shall be deemed to, establish any partnership or joint venture between them (or any of their respective Affiliates), constitute any person as the agency of another, nor authorise the other Party to make or enter into any commitments for or on behalf of any other.
13.5 Other than in the course of a bona fide public recruitment exercise, neither Party shall, without the prior written consent of the other, at any time from the date of this Agreement to the expiry of twelve months after the termination and/or expiry of this Agreement, solicit or entice away from the other party or employ (or attempt to employ) any person who is engaged as an employee of the other Party involved in material aspects of the provision or receipt of the Services.
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13.6 If any provision or part-provision of any SOW is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision of any SOW under this Section 13.6 shall not affect the validity and enforceability of the rest of that SOW.
13.7 A person who is not a party to any SOW shall have no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any provision of that SOW, save for any Kantar Affiliate or Client Affiliate that is a party to a SOW.
13.8 No variation of any SOW shall be effective unless it is in writing and signed by Kantar and Client (or their authorised representatives).
13.9 The rights and remedies provided for in this Agreement (and any SOW) are cumulative and shall be in addition to (not in lieu of) any other rights and remedies provided by law or in equity.
13.10 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or any SOW, or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.11 Kantar may assign (in whole or in part):
(a) its rights under any SOW to any Kantar Affiliate upon the provision of prior written notice to Client or any Client Affiliate; and/or
(b) its receivables due from the Client.
13.12 Kantar may (I) freely subcontract the provision of the Services and/or Deliverables (or any part thereof) and (ii) to material Subcontractors (of spend of greater than £25,000) upon the provision of notice to Client.
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Schedule 2
Platform Terms
1 DEFINITIONS AND INTERPRETATIONS
1.1 For the purposes of this Schedule, the following terms shall have the following meanings:
(a) “Client Platform Materials” means the Client Materials (including information, graphics, data, Client’s publicly available logos, brands, markings, trade names, trade marks and service marks and any and all images, videos and other materials) input by Client or End User or by Kantar on Client’s instruction into the Platform.
(b) “Documentation” means manuals, specifications and other written and electronic materials describing the Platform functionality, features and operating characteristics;
(c) “End Users” means Client’s employees and contractors who access and use the Platform through a single sign-on on Client’s behalf for Client’s internal purposes;
(d) “Platform” means the standard version of the web based environment described in the SOW including the Platform Modules and any Updates;
(e) “Platform Content” means all content accessed by the Client and the End Users through the Platform, excluding Client Platform Materials;
(f) “Platform Modules” has the meaning set out in the SOW; and
(g) “Updates” means any new or modified features developed and made available by Kantar and/or Kantar Affiliates and/or Third Party Subcontractors to the Platform.
1.2 Unless expressly set out or the context dictates otherwise, any terms or references defined in the General Terms shall have the same meaning in this Schedule.
2 LICENCE
2.1 Subject to the provisions of this Schedule and the relevant SOW, Kantar grants Client and its End Users a non-exclusive, non-transferable, right (the “User Right”) to access the Platform and the Platform Content for the SOW Term solely for Client’s internal business purposes. However, Client may share reasonable extracts from the Platform Content with its Affiliates and its customers, provided that Client notifies the Affiliate and/or customer that the extract may be used only in connection with the business of the Client and may not be subsequently shared with any third party.
2.2 Each User Right:
(a) enables access to, and use of, the Platform and the Platform Content by an End User who has been issued a valid user identification (the “User ID”) by Kantar or by authentication of an End User through SSO ; and
(b) is subject to and conditioned upon: (i) the nature and capabilities of End User access; (ii) the permissible usage frequency; and (iii) the number of End Users, as set forth in the applicable SOW.
2.3 Client is prohibited from providing, directly or indirectly, access to the Platform to (a) third parties or (b) to any employee who has not been issued a User ID (except where access is through SSO).
2.4 Kantar may, from time to time, verify the actual number of End Users and, in case of discrepancy of the End Users found by Kantar to be using the Platform and End Users subscribed to the Platform as set out in the signed SOW, Kantar will inform Client about the additional End Users identified and (a) Kantar may issue an invoice (which Client shall pay) for the additional number of identified End Users, and (b) the Parties shall amend the SOW to reflect such amended number of End Users.
2.5 Client shall ensure that the Client Platform Materials, and the Client’s infrastructure and connectivity are compliant with Kantar’s technical requirements.
2.6 The Client grants to Kantar the right and licence to use, copy and adapt and the Client Platform Materials within the Platform to create the Platform Content solely for the Client.
3 INVOICING AND PAYMENT
3.1 Kantar shall invoice Client in relation to the Fees fin accordance with the SOW. Kantar may, at its discretion, adjust any or all fees on renewal of a SOW on at least sixty (60) days’ notice.
3.2 For access to the Platform wholly or in part outside the UK, if through any currency fluctuation the Sterling equivalent of the cost to Kantar of any obligations incurred in respect of overseas work for Client exceeds the cost shown in the SOW, Kantar shall be entitled to charge for such obligations at the exchange rate which is in operation at the time the payment is made abroad.
3.3 In relation to any forward contracts Kantar may enter into with its bank based upon the project specific invoicing schedule and contractual payment terms, Kantar reserves the right to charge any foreign currency losses or bank charges incurred as a result of payment not being received in line with the contractual payment terms on such forward contracts.
4 TERM
4.1 Each SOW will automatically renew at the end of the SOW Term for the duration of the original SOW Term (each such renewal period being “SOW Renewal Term” and the original SOW Term being extended accordingly to incorporate any such SOW Renewal Term) unless either Party gives at least six (6) months’ notice during the original SOW Term not to renew the SOW at the end of the original SOW Term, or terminates the SOW in accordance with Section 5 of this Schedule.
4.2 Thereafter, the SOW will renew for successive SOW Renewal Terms unless and until either Party terminates the SOW in accordance with Section 5, or gives at least six (6) months’ written notice of non-renewal prior to the following SOW Renewal Term.
5 TERMINATION AND SUSPENSION OF SERVICES
5.1 Suspension of Services. Notwithstanding any other provision of the SOW, Kantar may, in its sole discretion, suspend Client’s access to the Platform (or any part thereof) for any of the following reasons:
(a) to prevent damages or risk to, or degradation of, the Platform;
(b) if the Client has committed a material breach of the SOW;
(c) to comply with Applicable Law, Codes of Practice or any governmental request; or
(d) to otherwise protect Kantar from potential legal liability.
5.2 Kantar will use reasonable efforts to provide Client with notice prior to or promptly following any suspension of the Platform pursuant to Section 5.1. Kantar will promptly restore access to the Platform ) as soon as the event giving rise to suspension has been resolved. This Section 5.2 will not be construed as imposing any obligation or duty on Kantar to monitor use of the Platform.
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5.3 Effect of Termination: Upon termination of all or part of the SOW for any reason:
(a) Client’s and all End Users’ access to the Platform will immediately cease; and
(b) at Kantar’s standard time and materials rates, Kantar will reasonably cooperate with Client in transitioning Client platform Materials back to Client., provided that a request for such assistance is made within 30 days’ of termination.
5.4 The value of any Services unused after the SOW Term, has lapsed will automatically lapse and cannot be carried forward to any subsequent SOWs.
6 RESTRICTIONS
6.1 Neither Client nor any End User may access the Platform and/or use the Platform Content save as expressly set out in the relevant SOW or as otherwise expressly authorised in writing by Kantar.
6.2 Client is responsible for ensuring its End Users comply with all relevant terms of the SOW and any failure to comply shall constitute a breach by Client.
6.3 Except as expressly authorised by the SOW, Client will not, and will ensure that any End User will not:
(a) permit any third party to access the Platform;
(b) copy, decompile, disassemble or reverse engineer any technology (including software) incorporated or made available via the Platform ;
(c) derive any trade secrets embodied in the Platform Content;
(d) use all or part of the Platform and/or the Platform Content, or any of Kantar’s Confidential Information to develop a competing product or service;
(e) remove any copyright, trade mark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Platform, Documentation and/or Platform Content, including any screen displays, or any other Materials made available by or on behalf of Kantar hereunder.
6.4 Client agrees and covenants to not use any Platform Content, (including any third-party product images, logos, designs or trade marks) in a way that substantially harms the reputation of Kantar or any third party.
7 INDEMNITY
7.1 Without limitation, Client shall defend, indemnify and hold harmless the Kantar and its Affiliates and keep Kantar and its Affiliates indemnified from and against all losses, damages, liabilities, penalties, fines claims, costs and reasonable expenses (including reasonable legal costs) which are incurred and/or suffered by the Kantar and its Affiliates arising out of or in connection with any claim arising as a result of a breach of Section 2 or 6 of this Schedule.
8 LIABILITY
8.1 Except as set out in this Agreement, Kantar and its vendors and licensors disclaim all warranties, express and implied, in respect of the Platform and the Platform Content including, but not limited to, the implied warranties of satisfactory quality, merchantability, fitness for a particular purpose, quiet enjoyment, quality of information, and title/non-infringement. No oral or written information or advice given by Kantar or its authorised representatives will create a warranty or in any way increase the scope of Kantar’s obligations under this Agreement.
8.2 Client acknowledges and agrees that Kantar that: (a) viruses, worms, trojan horses, or other undesirable data or software; or (b) unauthorized users (e.g., hackers) may attempt to obtain access to and damage Client Platform Materials, web-sites, computers, or networks. Kantar will not be responsible for such activities.
8.3 Without prejudice to Section 8.1 above, Client understands that the Platform and the Platform Content are not intended to be used as the sole basis for any business decision. The Platform and the Platform Content and are based upon data which may be provided to Kantar by third parties and by the Client and it is not be possible and/or economically viable for Kantar to guarantee the accuracy and/or completeness of such information. The Platform and Platform Content also involve models and techniques based on statistical analysis, probability and predictive behaviour. Kantar is therefore liable for any inaccuracy in the information provided by third parties and/or the Client and Kantar is not liable for actions taken by the Client based on the Platform Content.
9 SAAS SERVICE LEVEL AGREEMENT
9.1 Kantar will use reasonable endeavours to procure that the Platform will be available 99.5% of the time during each calendar month of the SOW Term excluding Excused Outages (defined below) (“Availability”).
9.2 The following events or circumstances shall be “Excused Outages” for the purposes of calculating the Availability:
(a) scheduled maintenance of the Platform, conducted on a regular basis of which Kantar will give Client reasonable notice by email or other pre-approved process;
(b) emergency maintenance of the Platform;
(c) issues pertaining to software or equipment of Client or any End User (including firewall software, hardware and security settings, configuration of anti-virus software or anti-spyware or malware software);
(d) as a result of Force Majeure;
(e) outages attributable to virus, bug or any disabling code;
(f) any failure by Client to comply with this Agreement.
10 FEEDBACK
10.1 Client may provide suggestions, comments or other feedback (collectively, “Feedback”) to Kantar with respect to its products including the Platform and Platform Content. Feedback is voluntary. Kantar may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Client’s intellectual property rights to make use of the Feedback, Client grants Kantar an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Kantar’s business, including the enhancement of the Platform.
11 SUPPORT
11.1 During the Term, Kantar will provide Client with support as detailed in Appendix 1.
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Appendix 1
Platform Service Level Agreement
During the Term of the Agreement, Kantar will provide the Client with support services based on the policy below
1. DEFINITIONS. For the purposes of this SLA the following words shall have the following meanings:
1.1 “Business Day(s)” means Monday through Friday with the exclusion of public holidays in the United Kingdom.
1.2 “Diagnosis” means the stage of the Incident lifecycle whose purposes are identifying the root cause of Error and an applicable solution or workaround. The Diagnosis follows the Preliminary Incident Analysis.
1.3 “Error” means any malfunction or other defect in the Platform that can be reproduced by Kantar and that results in non-conformity with the Documentation.
1.4 “Functional Specifications” means the features, functionality, configuration and other specifications and requirements for the Platform that are (i) identified in any order, (ii) published by Kantar or set forth in the Documentation or (iii) present in the Platform.
1.5 “Incident” means an unplanned interruption to the Platform or a material reduction in the quality of the Platform performance or an unexpected Platform behavior. An Incident may or may not be caused by an Error. Failure of an item that has not yet affected service is also an Incident.
1.6 “Incident Detection” means the stage of the Incident lifecycle resulting in the Incident becoming known to Kantar. Detection is the result of a User logging an Incident through the use of Kantar’s ticketing process. A “trouble ticket” shall be raised for any single Incident.
1.7 “Incident Response Time” means the elapsed time between the submission of the trouble ticket and Kantar’s first action to identify a Solution.
1.8 “Incident Resolution Time” means the elapsed time between the submission of the trouble ticket and the delivery of a Solution to Client. When measuring the resolution time, any time spent in activity not directly relevant to the resolution of the Platform incident shall be taken into consideration.
1.9 “Maintenance Services” means the maintenance services provided by Kantar to Client pursuant to this SLA.
1.10 “Permanent Solution” means a Solution of an Error that completely and permanently addresses such Error without any degradation of performance or loss of functionality.
1.11 “Preliminary Incident Analysis (PIA)”, sometimes referred to as “preliminary diagnosis”, means the stage of the Incident lifecycle aimed at confirming that the Incident is caused by a Platform Error. PIA is completed once the Error has been replicated. This is a preliminary step that Client is requested to run in order to allow Kantar to initiate Error resolution.
1.12 “Service Hours” means the period of time during which Maintenance Services are available and for which Incident Response Time and Incident Resolution Time are accounted.
1.13 “Solution” means a resolution, fix, work around, update or procedural change with respect to an Error causing an Incident that (i) addresses such Error on a temporary basis pending a Permanent Solution, or (ii) allows the Platform to operate without any loss of functionality or performance, and (iii) is reasonably acceptable to Client. Without limitation, a Solution may consist of specific administrative steps, alternative programming or a temporary patch to the Platform.
1.14 “3rd Party” means a third party organization that is involved in the delivery of part of a Service to Client.
2. MAINTENANCE SERVICE SCOPE. Kantar shall provide Client with the Maintenance Service upon the following conditions.
2.1 Conditions to Access the Service.
Client personnel dealing with Kantar shall hold all functional and technical knowledge related to standard functionalities and customizations, integration data between the Platform and host systems.
When reporting an Incident to Kantar, a complete Preliminary Incident Analysis shall be provided as per paragraph 2.2, below; all the available information such as images and complementary data shall be provided as well.
2.2 Applicability 3rd Party Service Kantar Acting on Behalf of Client.
Should Client require the use of a 3rd Party to provide services in connection with Client’s use of the Services:
• Any such 3rd Party would be subject to Kantar’s acceptance and prior approval.
• Any approved 3rd Party will be required to enter into an SLA with Kantar.
2.3 Preliminary Incident Analysis. Kantar will initiate the Diagnosis of the Error to ensure the identification of a Solution to the Error only when a Preliminary Incident Analysis (PIA) has been completed by Client. The PIA will be considered complete as soon as:
• the problem has been replicated by Client;
• all the procedural steps to allow Kantar to replicate the Error have been provided to Kantar.
In the event that Client is unable to provide a complete Preliminary Incident Analysis, Kantar may be asked to run it on Client’s behalf. Such a service is not included in the scope of the present SLA and will be subject to additional charge.
2.4 Incident Notification and Classification. When reporting an Incident, Client contacts must have a good understanding of the problem and confirm that a full Preliminary Incident Analysis has been run, as per article 2.2. Client contacts shall also provide all the information needed to identify and isolate the Error. A Priority Level 1, 2, 3 or 4 shall be assigned to the ticket, based on Client’s initial evaluation of the Error. Kantar and Client shall cooperate in good faith to jointly determine whether an Error is a Priority Level 1, 2, 3 or 4.
Provided, however, that in the event that Kantar and Client cannot come to such joint determination despite such good faith cooperation, Kantar’s determination shall control. Client may report to Kantar any Priority Level 1, 2, 3 or 4 Error during normal Service Hours.
2.5 Service conditions. The Service is provided during Service Hours only. Service Hours are limited to UK Business Days, from 9:00am to 6:00pm. The Service is provided in the English language. Interaction in local language is subject to resource availability and cannot be assured.
2.6 Incident Response Time and Incident Resolution Time. Upon notification by Client of an Incident, Kantar shall initiate the identification and correction of any relevant Error, in all instances providing a Solution and Permanent Solution. Kantar shall, as practicable, provide Client with updates to the status of efforts by the ticketing process, email or telephone. Incident Response Time and Incident Resolution Time are accounted for during Service Hours only.
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2.7 Incident Closure. Kantar’s obligations against any single Incident are completed when the Solution is released.
2.8 Customizations. Kantar shall provide Maintenance Services for the standard version of the Platform only. Client Customizations are not included in the current SLA.
2.9 New Release of the Platform. Client shall receive the then-current release of the Platform. The new (additional or enhanced) functionalities of the new version will be provided in the default configuration; any configuration change, including the deactivation of the new functionality itself, is beyond the scope of the present agreement.
2.10 Customizations Porting. Any porting of Customization onto future Platform versions is not included or regulated under the Agreement. It shall be evaluated for any specific case and regulated by a separate agreement.
2.11 Documentation Updates. Kantar shall provide Client with updates, in electronic form, for all Documentation (i) as made available by Kantar to other users of the Platform, (ii) as necessary in connection with any Updates and (iii) as otherwise required in connection with the resolution of any Error.
3. SERVICE LEVEL Incident Priorities
Priority Level 1
Platform is not accessible OR
Platform core functionalities are corrupted resulting in a critical business disruption AND a Work Around doesn’t exist either in Platform or manually and the relevant business process cannot be deferred.
Priority Level 2
Platform core functionalities are corrupted resulting in a critical business disruption AND a Work Around does exist either in Platform or manually but the solution is not sustainable in the mid-term OR
Platform core functionalities are corrupted resulting in a critical business disruption AND the relevant business process can be deferred.
Priority Level 3
Platform core functionalities are corrupted resulting in a critical business disruption AND a Work Around does exist either in Platform or manually and the solution is sustainable in the mid run OR
Platform malfunction resulting in a non-critical business disruption
Priority Level 4
The incident affects minor anomalies or documentation.
4. Response and Resolution Time
Incident Response Time and Incident Resolution Time are accounted for during Service Hours only, as per article 2.5.
The resolution time clock shall be set on-hold as far as any Client action is required or Kantar is not provided with the appropriate operational conditions (for example, limited access to server or key information not provided by Client).
The following service levels apply:
RESPONSE TIME
Priority 1: within 4 working hours
Priority 2: within 8 working hours
Priority 3: within 24 working hours
Priority 4: within 24 working hours
RESOLUTION TIME
Priority 1: within 12 working hours
Priority 2: within 36 working hours
Priority 3: none
Priority 4: none