1. Interpretation

"Client" means the person who has commissioned a Survey to be carried out by RSM and in the case of a corporate person shall include its subsidiaries and holding companies (as these terms are defined in Section 736 of the Companies Act 1985).

"Contract" means the agreement made between RSM and the Client subject to the Conditions for the carrying out of a Survey which shall include the provision of electronic files containing all presentations (written or oral) and data files as agreed in the Contract.

2. Governing law

This Contract shall be governed by and construed in accordance with English law and each party will submit to the jurisdiction of the English Courts in respect of any dispute or matter arising out or connected with this Contract.

3. Incorporation of conditions and formation of a Contract

3.1 These Conditions shall prevail over and take the place of any other terms and conditions contained or incorporated in or referred to in any document of or communication from the Client.

3.2 No other agreement, representation or promise of any kind shall form part of, vary, supersede or operate as a waiver of these Conditions or any of them unless expressly accepted by a Partner of RSM in writing.

3.3 These terms and conditions shall be deemed to be incorporated into the Contract together with other matters as are contained or referred to in RSM's quotation accepted by the Client. RSM's quotation shall be exclusive of value added tax and shall remain valid for 45 calendar days from the date of the quotation.

3.4 In the absence of written acceptance RSM’s quotation shall be deemed to have been accepted by the Client’s agreement (whether oral or in writing) to the commencement of any work by RSM outlined in that quotation.

3.5 If at any time after acceptance (or deemed acceptance) of the quotation the Client wishes to alter any of the terms of the Contract RSM reserves the right to make such additional charge as RSM deems in its sole discretion deems reasonable.

3.6 Unless the Quotation expressly states otherwise, the Price is quoted exclusive of Value Added Tax or any equivalent sales tax in any jurisdiction which shall be payable in addition by the Client upon presentation of a valid Value Added Tax or equivalent invoice.

4. Terms of payment

4.1 An invoice for 50% of the full agreed amount for the Survey plus VAT shall be issued by RSM to the Client on commission of the Survey and a second invoice for 50% of the full agreed amount plus VAT shall be issued by RSM to Client on delivery of research information and/or reports. If a survey is to be carried out in stages with interim delivery of research information and/or reports payment for each stage shall be completed on each delivery of research information and/or report.

4.2 All invoices raised by RSM shall be paid within a minimum of 30 calendar days of the date of issue (or 14 calendar days of the date of issue where specified in RSM’s Assumptions document). In the event that payment is not received within the agreed payment period RSM may charge interest at the rate of 3% above Barclays Bank Plc base rate as at that time.

4.3 If as a result of any act or omission of the Client (including but not limited to late delivery of products or materials by the Client to RSM as agreed in the Contract) RSM incurs additional costs in carrying out the Survey (for example, because it becomes liable to pay postponement or cancellation fees to its interviewers or sub-contractors) the Client shall be liable to reimburse RSM in respect of such additional costs as, in its sole discretion, it deems reasonable.

4.4 If the Client cancels or terminates the Survey, the final payment due from the Client will be the reasonable proportion of the total fee for carrying out the Survey agreed by RSM at the date of cancellation or termination plus any other losses reasonably incurred by RSM as a result of such cancellation or termination by the Client.

4.5 Additional data tables and analysis (excluding error correction and minor requests) will be charged at £85 per hour.

5. International Contracts and Non-sterling Payments

5.1 On International Contracts (i.e. a Contract for the carrying out of a Survey for a Client which involves some part of the Survey being carried out outside the United Kingdom) if the sterling equivalent of the costs incurred by RSM in respect of any part of the Survey carried out abroad exceeds the proportion of the Price attributed to that work in the Quotation through currency fluctuations, RSM shall be entitled to charge the Client the actual sterling equivalent of these costs at the exchange rate in operation at the time RSM pays such costs.

5.2 For projects where the Client has requested to be invoiced in a non-UK sterling currency, if the sterling currency equivalent of the charge at the date of invoicing is lower than the sterling equivalent charge at the time of quoting through currency fluctuations, RSM shall be entitled to submit an invoice at the exchange rate in operation at the time of invoicing. 

6. Ownership and use of reports

6.1 Copyright in all Reports and other documents prepared and supplied by RSM pursuant to the Contract shall remain vested in RSM.

6.2 Reports and other findings made by RSM in the performance of the Contract are supplied to the Client on the understanding that:

6.2.1 they shall only be divulged to officers and employees of the Client or the Client's advertising agencies or PR consultancies

6.2.2 save as provided in 6.2.1 above their contents shall not be divulged to any third party without the prior agreement of RSM.

6.3 If RSM's name is to be quoted in any published or widely circulated document in connection with findings from one of its surveys or reports, then RSM's written agreement to the contents of such document must be obtained before it is published or circulated by the Client.
 


7. Sub-contracting by RSM

7.1 RSM may at its discretion sub-contract the fieldwork or data processing of the data collected in the course of the carrying out of the Survey or other parts of the execution of the work to be carried out under the Contract to third parties.

7.2 RSM will ensure that any sub-contractors selected by it conform to the Code of Conduct.

7.3 The Client will not issue any instructions to a sub-contractor selected by RSM.

7.4 If the Client wishes RSM to employ a particular sub-contractor to carry out the Survey, RSM's responsibility for the work carried out by that sub-contractor shall be limited to a review function, the scope of which shall be defined in writing and agreed between RSM and the Client before the start of the fieldwork by that particular sub-contractor.

 

8. Warranties and limitation of liability

8.1 RSM shall use all reasonable skill and care in the carrying out of the Survey and unless prevented by unforeseen circumstances or any circumstances beyond its reasonable control shall deliver the data or presentation to the Client by the date specified in the Quotation or otherwise agreed through the course of the Survey. All other conditions, warranties or obligations implied by statute or common law are hereby excluded.

8.2 RSM does not exclude or restrict its liability for death or personal injury to the extent that it results from the negligence of RSM, its employees or agents.

8.3 RSM shall not be liable for any loss or damage arising from:-

8.3.1 the interpretation or use by the Client or any third party of the contents of the presentation (oral or written) or any other findings resulting from the Survey supplied to the Client; or

8.3.2 any act of or failure to act by the Client; or any act or omission of any sub-contractor used by RSM at the insistence or request of the Client pursuant to Clause 7.4.

8.5 The Client warrants: that the individuals to whom the data relates have been informed by the Client that they may be contacted by a third party for market research purposes, and that such individuals do not object to the use of their personal data for such purposes.

8.6 The Client acknowledges that it is in a better position to foresee and evaluate any loss it might suffer in connection with the Survey and that it is able to insure against such loss to such extent as will be sufficient having regard to the particular circumstances of the Client and the provisions of this clause.

9. Indemnity

The Client shall indemnify RSM and keep RSM indemnified from and against all and any claims, losses, costs, damages, liabilities, demands and expenses suffered or incurred by RSM arising out of or connected with any claim brought against RSM by a third party in connection with the performance of the Contract, unless such claims, losses, costs, damages, liabilities, demands and expenses are attributable to the negligence of RSM or its employees or agents. The Client will be responsible for the insuring of goods or products supplied to RSM for Survey purposes.
 

10. Force majeure

RSM shall not be liable for failure to perform its obligations hereunder due to force majeure, which for these purposes shall mean fires, floods, storms, acts of God, riots, strikes, lock-outs, wars, national or local governmental control, restriction or prohibition,

11. Confidentiality

11.1 RSM agrees to keep confidential all information of a confidential nature which it obtains from the Client in connection with the Contract unless:-

11.1.1 RSM already had that information; or that information is or comes into the public domain otherwise than by breach of this clause; or RSM is required or requested to divulge that information by any court, tribunal or governmental authority with competent jurisdiction; or that information is disclosed on a confidential basis for the purposes of obtaining professional advice.
 
11.2 Under the Code of Conduct, all material relating to the Client remains confidential to those engaged in the service of RSM. The Code of Conduct also states that RSM is entitled to destroy questionnaires, recorded interviews and other primary records one year after the presentation to the Client of the results of a Survey, without reference to the Client. This will be done unless RSM receives instructions in writing to the contrary from the Client within the stated period.

12. Data protection

12.1 RSM warrants and undertakes that it has and will continue to have full legal authority to process data and that it will only process data in accordance with the applicable data protection laws in the UK and the terms of this Contract.

12.2 RSM warrants that it has in place, and undertakes to maintain throughout the term of this Contract, appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of data and adequate security programmes and procedures to ensure that unauthorised persons do not have access to the data or to any equipment used to process data.

12.3 The Client undertakes to comply with all applicable data protection laws in the UK.

13. Termination

13.1 Either party may terminate this Contract forthwith at any time by giving the other written notice if the other:

13.1.2 commits a material breach of any of the terms of this Contract and, where such a breach is capable of remedy,

13.1.3 fails to remedy the same within 13 days after receipt of a written notice from the other requiring it to be remedied;

13.1.4 is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;

13.1.5 takes, or there is taken in respect of the other, any step, action, application or proceeding in relation to the whole or any material part of its undertaking for a voluntary arrangement or composition or reconstruction of its debts; or winding up, dissolution, administration or receivership (administrative or otherwise).

13.2 If the Client has commissioned a Survey to be carried out by RSM which amounts to a Continuous Project then unless the Client and RSM have agreed a termination date for the Continuous Project RSM shall continue to carry out interviewing until the Project is terminated by the Client giving to RSM prior written notice equal to a period being 25% of the period of the Continuous Project or three months, whichever is the shorter.

14. Severance

If any of these Conditions is rendered or held to be void or unenforceable in whole or in part then it shall be void or unenforceable only to the extent that it is shown that it would not be lawful or reasonable to allow reliance on it and the remaining conditions shall continue to be of full force and effect.

15. Notices
 
Any notice to be given by either party under these Conditions shall be sent by first class mail or fax to the business address.