STANDARD TERMS AND CONDITIONS FOR USE OF KANTAR MARKETPLACE SERVICES
PLEASE READ THESE TERMS AND CONDITIONS (“AGREEMENT”) VERY CAREFULLY BEFORE REGISTERING TO USE KANTAR MARKETPLACE AS A CLIENT. REGISTRATION INDICATES ACCEPTANCE OF THIS AGREEMENT. IF THESE TERMS ARE NOT ACCEPTED, PLEASE DO NOT REGISTER TO USE KANTAR MARKETPLACE. This Agreement only applies to transactions that do not have a written master services agreement, duly executed by both parties (“MSA”). Where there is an existing MSA, then the MSA terms shall take precedence and will govern the transaction and relationship of the parties. In the absence of an existing MSA, then this Agreement shall govern the relationship between Client and The Kantar Group Limited and Kantar Group Companies (“Kantar”) in relation to any purchase of any Services on the Kantar Platform. Kantar may amend this Agreement from time to time.
1 DEFINITIONS AND INTERPRETATION
Affiliates means Client Group Companies, partners, agencies and other suppliers of Client.
Authorized Users means those employees and agents of the Client that Client authorises to use the Services.
Client means the entity or individual on behalf of which Reports are generated via the Kantar Platform.
Client Data means Materials supplied by or on behalf of the Client for use in connection with the Services or to create DIY Reports.
Data Privacy Laws means, as the context requires, all laws and regulations, including regulations of the European Union (“EU”), the European Economic Area (‘EEA’) and their member states, Switzerland, the United Kingdom and any data protection, privacy or other laws in any country applicable to the Processing of Personal Data under this Agreement. Where used in this Agreement, the terms “data controller”, “data processor”, “data subject”, “processing” and “personal data” shall have the meanings attributed to those terms in the applicable Data Protection Legislation, including GDPR, and “sensitive personal data” shall have the meaning attributed to it in the applicable Data Protection Legislation and in addition shall include any data for which unauthorized access could result in identity theft or material harm, including but not limited to national insurance numbers, driving license numbers, financial account numbers, access codes to protected systems, personal data regarding children under 13 or job performance, medical/health information or financial data.
DIY Reports means the output created by Client using the Kantar Platform and Client Data without input or assistance from Kantar.
Effective Date means the date the first Services are provided.
Feedback means all suggestions, comments recommendations, improvements or any other feedback based on the Services provided by Client to Kantar.
Fees means the fees payable by the Client in respect of the Services and Reports which are set out on the Kantar Platform for Reports purchased via the Kantar Platform.
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, cyber attacks (or threats thereof), rebellion, flood, fire, explosions, earthquakes.
GDPR means the General Data Protection Regulation (EU) 2016/679.
Group Company means any legal entity that directly or indirectly, through one or more intermediaries,: (i) is Controlled by that party; (ii) Controls that party; or (iii) is under substantially common Control and in relation to Kantar is trading as “Kantar” from time to time and under the common Control of Kantar, (but excluding any operating entities trading as Europanel). The term “Control” (including “Controlled by” and “under common Control”) as used means the possession, directly or indirectly, of the power to direct or cause the direction or the management and policies of a legal entity, whether through the ownership of voting securities, by contract or otherwise. An entity that otherwise qualifies under this definition will be included within the meaning of “Group Company” even though it qualifies after the execution of this Agreement.
Intellectual Property Rights or IPR means all trade secrets, patents and patent applications, rights to inventions, copyright (including rights in computer software)and related rights, moral rights, database rights, semiconductor topography rights, utility models, rights in designs, trademarks, service marks, trade or brand names, 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 intellectual property and 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 Materials means Materials owned by or licensed to Kantar, including all Respondent Data. 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. As between Kantar and Client, Kantar shall own all Intellectual Property Rights in and to Kantar Materials.
Kantar Platform means the Kantar platform known as Kantar Marketplace which provides Client access to the Kantar Materials.
Losses means all losses, costs, claims, damages, liabilities, penalties, expenses (including reasonable legal expenses).
Materials means information, output, documents, reports, data, programmes, plans, products, advertising materials (including appended data, information databases, calculated scores and specialized database applications), software, algorithms, source code, object code, research tools, product taxonomies and dictionaries, analytical techniques and frameworks, methodologies, norms, formulae, works, questionnaires and template questionnaires, systems, computer programs, including application software, platforms, enhancements, supporting documentation and other work processes and information, whether in hard copy or digital format.
Reports means the reports to be provided to Client as part of the Services which are purchased and generated by the Client via the Kantar Platform.
Respondent Data means all Materials provided by Respondents including answers to survey questions.
Services means the custom and non-custom market research service using Kantar Materials via the Kantar Platform and provided by (i) Kantar to one or more clients, including any syndicated service; or (ii) as a DIY Report.
Third Party Materials means any Materials to be acquired by Kantar from a third party in the provision of the Services as expressly identified in writing by Client.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
A reference to the words and expressions “other”, “including” and “in particular” (or any similar word or expression) do not limit the generality of any preceding words.
A reference to “writing” or “written” includes email but not fax.
Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
2 Term and Termination
2.1 This Agreement shall commence as of the Effective Date and shall continue in effect until terminated in accordance with clause 2.2.
2.2 Either party may terminate this Agreement immediately for cause, if: (a) a party breaches a material obligation of this Agreement and fails to remedy the breach within thirty (30) days of written notice being given to the breaching party; (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (e) an application is made to court, or an order is made for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party; or (f) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business. Either Party may terminate this Agreement without cause upon ninety (90) days written notice. Upon the termination of this Agreement, Client shall continue to owe and shall remain liable for all Services rendered. Client shall cease all use of the Services on the effective date of termination.
3 Rights to Use Services
3.1 Subject to the terms and conditions in this Agreement, including Client paying the Fees in accordance with clause 7 below, Kantar hereby grants to Client a limited non-exclusive, non-transferable, non-sublicensable right, to permit the Authorised Users to (i) use the Services during the term solely for the Client’s internal business operations provided that the Client does not remove (and the Client shall procure that the Authorised Users do not remove) any watermarks, branding of Kantar or other copyright notices from the Reports; or (ii) to create DIY Reports. Except as expressly permitted in this Agreement, distributing, renting, sharing, leasing, copying, selling, sublicensing, transferring or distributing the Services or any elements or part thereof (including without limitation electronic copying) to any person or entity that is not a party hereto without the express written permission of Kantar in advance, is prohibited. Client acknowledges and agrees that it will not use the Services for any illegal purpose. Authorised Users may on behalf of Client purchase and generate Reports via the Kantar Platform in accordance with this Agreement. Client agrees that it will use the Services carefully and will not use them in any way that might result in any loss of Kantar’s or any third party’s property or information.
3.2 Kantar shall use reasonable commercial endeavours to make the Services available via the Kantar Platform 24 hours a day, seven days a week, except for periods of maintenance. Kantar will endeavour to keep any downtime as a result of maintenance to a minimum.
3.3 Kantar will, as part of the Services, and at no additional cost to the Client, provide the Client with Kantar’s standard technical support service which includes the provision of minor bug-fixes and log-in/access problems but does not include training, support or one to one help with using the Services.
3.4 Kantar may add or remove solutions, features and functions from the Kantar Platform from time to time at its sole discretion.
3.5 Client shall ensure that: (i) all Authorised Users keep secure passwords for their personal use of the Kantar Platform and access to the Reports (sharing of passwords is not permitted); (ii) passwords for access to the Kantar Platform are changed regularly, including at any point when any Authorised Users cease to be employed or otherwise engaged with the Client.
3.6 Client shall use all reasonable endeavours to prevent any unauthorised access to or use of the Services and in the event of any such unauthorised access or use, promptly notify Kantar by email: firstname.lastname@example.org.
3.7 Client shall: (i) provide Kantar with all necessary co-operation in relation to the Agreement and with such Client Data and other information as may be required in order for Kantar to provide the Services; (ii) comply with all applicable laws and regulations with respect to its activities under and in connection with the Agreement; (iii) give approvals and provide all Client Data in a timely and efficient manner, and Kantar shall not be liable for any delays to any agreed timetable to the extent that such delays are caused by an act of omission by the Client.
3.8 With respect to data that is publicly available on social media and other non-traditional media, including but not limited to: use of user and other third party content in social media and on other websites such as Facebook; and websites of editorial content providers of sponsored stories and branded content, such as BuzzFeed; and editorial content used on blogs and other advertorial content (“Social Media Data”), neither party shall be restricted (as between the parties) with regard to use of such Social Media Data. Reports may include and be based upon Social Media Data. Notwithstanding anything here in to the contrary: (i) Social Media Data shall not be deemed to be the property of Kantar or Client; (ii) Kantar does not make any representations or warranties regarding Social Media Data, including its accuracy and completeness; (iii) Kantar shall be entitled, both during and after the termination or expiry of this Agreement, to use any and all findings, analyses, data, research results and records resulting from the Services or collected in the course of or in connection with providing the Services or Reports for its own internal purposes, as part of its own databases and for purposes connected with its business, including for purposes of establishing industry norms, conducting case studies and industry learnings, and including in connection with any relevant legal dispute, but Kantar will maintain the anonymity of Client and the confidentiality of Reports.
3.9 Save in the circumstances contemplated by this clause 3.9, prior to the incorporation of any Third Party Materials in any Reports, or the use of any Third Party Materials otherwise for the purpose of a project, Kantar and Client shall agree the basis and terms on which such Third Party Materials shall be acquired. Where Third Party Materials are acquired under the terms of a license and Kantar has notified Client in writing of the terms of such license, Client agrees to abide by such license terms and acknowledges that any extension in term, territory or usage will be subject to the relevant third party’s consent. Where the project requires Kantar to acquire Materials from members of the public, Kantar shall use reasonable endeavours to seek the appropriate consents for use of such Materials for the purposes contemplated by this Agreement. Kantar shall be deemed to have satisfied this obligation if it has asked the relevant members of the public to agree to relevant terms and conditions when submitting the Materials.
3.10 Client shall not be entitled to receive Respondent Data. Notwithstanding the foregoing, in a study using certain Kantar products, in each case as determined by Kantar in its sole discretion, Client may be entitled to receive aggregated final results of the applicable study, subject to applicable privacy laws and any other limitations on use set forth herein or in the applicable license agreement, and may also receive qualitative conclusions that are determined from, derived from, or based upon the respondent level answers to survey questions in a manner that does not identify any particular individual.
3.11 Client agrees and acknowledges that it must inform Kantar in writing prior to the commencement of any work if Client intends to make any advertising, public statement, marketing material, press releases, correspondence with third parties or the like (“Public Statement”) that contain the whole or any part of the Reports or any part of the Services. Client agrees that prior to any Public Statement, the Public Statement shall be presented to Kantar for review and written approval as to accuracy and proper interpretation. If the study findings publicly disclosed by Client are incorrect, distorted or incomplete in Kantar’s opinion, Kantar shall have the right to make its own release of any or all study findings for clarification purposes, without being in breach of any publicity or confidentiality sections in this Agreement. For clarity, Client shall not make any such Public Statement or release based on any Report or on any part of the Services without the prior written consent of Kantar.
3.12 Beta Services. Kantar may make available to Client, at no additional cost, a service, feature, functionality or product that is designated as beta, pilot, limited release, no-production, evaluation or developer preview (a “Beta Service”). If Client opts to join a Beta Service test group, at its sole discretion, Client acknowledges that the Beta Service is intended for evaluation purposes, is made available on an “as is” basis and exclude any representations, warranties or conditions of any kind, whether express or implied, and delivery of the Beta Services may be subject to Client’s agreement to additional terms. Beta Services are not considered “Services” under these terms and conditions, however, Client’s obligations and responsibilities contained herein shall apply to the Beta Services. Subscriber acknowledges and agrees that Kantar may discontinue Beta Services at any time in its sole discretion and may never make them generally available.
4 Service Restrictions
4.1 Client shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (f) is otherwise illegal or causes damage or injury to any person or property; or (g) seek to elicit, solicit, collect, detect, use or disclose any information that alone or in combination with other data could identify or locate an individual and that Kantar reserves the right, without liability or prejudice to its other rights to Client, to disable the Client’s access to any material that breaches the provisions of this clause.
4.2 Client shall not: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Services in any form or media or by any means; (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; (b) access all or any part of the Services in order to build a product or service which competes with the Services; (c) use the Services to provide services to third parties; (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or (e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under clause 3. Client will be responsible for any acts or omissions by any third party (including Affiliates) that Client permits or allows access to the Services in breach of this Agreement.
5 Client Data
Client has and reserves and retains, sole and exclusive ownership of all right, title and interest in and to the Client Data, including all IPR arising or relating to the Client Data. Client Data is the Confidential Information of Client. Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data. Client grants Kantar a license to use, perform, display, execute, distribute, transmit, modify (including create derivative works), import, Client Data solely for the purposes of performing the Services. All other rights in and to the Client Data are expressly reserved by Client. Client warrants to Kantar that it has all necessary rights to provide the Client Data to Kantar and that the use by Kantar of Client Data in connection with the Services will not infringe the IPR or any other rights of any third party. Client acknowledges and agrees that Kantar and its licensors own all IPR and all data in the Services, Reports, Kantar Platform and Kantar Materials. Client shall not submit or input any Client Data into the Services (i) that is, or would be considered, sexually explicit, pornographic, obscene, discriminatory, indecent, threatening, defaming, slanderous, libellous, offensive, illegal, harassing, abusive, violent, racist, hate-oriented, bigoted or promoting violence, racism, hatred or bigotry or otherwise objectionable; or (ii) that seeks to elicit, solicit, collect, detect use or disclose any information that alone or in combination with other data could identify or locate an individual.
6 Kantar’s Ownership Rights
Kantar has and reserves and retains, sole and exclusive ownership of all right, title and interest in and to the Kantar Materials, including all IPR arising or relating to the Kantar Materials. Kantar grants Client a worldwide, non-sublicensable, non-transferable, royalty free license to Kantar Materials incorporated in the Reports or otherwise necessary for Client to use the Services solely for (i) internal purposes and not for publication or other distribution or communication to the public (unless so expressly approved to the contrary in writing by Kantar, such approval may be withheld in Kantar’s sole discretion. Kantar shall be free to use, disclose, reproduce, sublicense or otherwise distribute, and exploit Feedback as it sees fit, entirely without obligation or restriction of any kind. All other rights in and to the Kantar Materials are expressly reserved by Kantar. Kantar confirms that it has all the rights to provide the Services to Client in accordance with the terms of the Agreement. Kantar acknowledges and agrees that Client owns all IPR and all data in the Client Data.
7 Fees and Payment
7.1 Where Reports are ordered via the Kantar Platform, the fees shall be specified on the Kantar Platform and will be due and payable within thirty (30) days from date of each Kantar invoice. Any payment not received when due and payable shall be subject to a late charge at the rate of 1.5% per month. Client shall pay Kantar all costs of debt collection (including reasonable attorneys’ fees) incurred. In addition, Client shall pay any such interest or costs promptly on demand. Client’s obligation to pay Kantar timely is not dependent upon Client receiving payment from any third parties. Client shall notify Kantar within ten (10) days from the date of invoice if Client disputes all or part of an invoice. Client shall provide written reasons for such rejection and the parties shall attempt in good faith to resolve any controversy or complaint within thirty (30) days of the written of dispute.
7.2 Credits. Client may choose to purchase individual credits or a pre-determined package of credits to purchase Services/Reports. Each of the Services/Reports provided has a set of pre-determined package of credits available for purchase. Credits you purchase will show in your account balance and you can choose the amount of credits to apply to your purchase. Client must have sufficient credits to purchase Services/Reports. All credits must be used within 12 months of purchase. After 12 months from date of purchase, the unused credit(s) will be deleted from the total credits available.
7.3 Credit/Debit Card. Where Services/Reports are ordered via the Kantar Platform, the Fees for the Services/Reports shall be specified on the Kantar Platform and may be paid by the Client by credit/debit card. All card payments are subject to authorization by the credit/debit card holder’s card issuer. Kantar will take full payment immediately for all Services/Reports ordered via the Kantar Platform and will not be liable for providing Services/Reports unless it is in receipt of the relevant Fees. During the checkout process, the Client will be asked to enter payment details. Kantar engages a PCI DSS certified third party to process credit/debit card payments and Kantar does not collect or retain credit/debit card information. By completing the payment details, the individual acting on behalf of the Client confirms Client’s right to use the credit/debit card. All fields indicated as compulsory must be completed. Kantar may collect and store Client’s information using a secure payment mechanism. Individuals wanting to purchase Services/Reports may only do so using a credit/debit card.
All Fees quoted exclude Value Added Tax, sales tax, GST and/or any other required taxes or duties, which shall be applied, if applicable. Fees shall be paid in the currency set out on the Kantar Platform; and shall be paid without set-off, deduction or withholding and in the event that Client is obliged under any applicable law to make any deduction or withholding, including, in respect of withholding or income taxes which Kantar cannot recover within a reasonable timescale, Kantar shall increase the 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.
8 Market Research Respondents
Client acknowledges that the creation of the Reports will involve individuals responding to market research questions and stimuli and otherwise providing various services to Kantar for the benefit of Kantar’s clients (“Respondents”). Client acknowledges that, given the nature of the Services, Kantar shall not be liable for the acts of such Respondents and such Respondents shall not be considered sub-contractors of Kantar in connection with this Agreement.
9 Data Protection & Privacy
9.1 The parties do not anticipate that Kantar will, as a part of providing the Services, share any personal data relating to the Respondents but, to the extent Kantar does share personal data relating to the Respondents, the following provisions of this clause 9 shall apply:
(a) The parties acknowledge and agree that the provisions of Article 28(3)(a)-(h) of the GDPR are incorporated into this Agreement, with any necessary changes to give full effect to such provisions.
(b) Each party shall comply with the obligations imposed on it by applicable Data Privacy Laws with regard to any personal data processed by it in connection with Services.
9.2 Where, by operation of this clause 9 Kantar is obliged to provide assistance to the Client, or to third parties at the request of the Client. Such assistance shall be provided at the sole cost and expense of the Client, save where such assistance directly arises from Kantar’s breach of its obligations under this Agreement, in which event the costs of such assistance shall be borne by Kantar.
10.1 Each party undertakes that it shall not (whether during or after termination of the Agreement) disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
10.2 Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives or advisers (“Representatives”) who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its Representatives to whom it discloses the other party’s confidential information comply with this clause 10; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement. Client acknowledges and agrees that the Client Data which is input by or on behalf of the Client and Authorised Users will be made available to Respondents to enable Kantar to perform the Services. Client acknowledges and agrees that Kantar shall be entitled to retain and use, both during and after the term of the Agreement, any information and data received or generated from the Reports and use of the Services. Such information and data may be used for such purposes as Kantar may choose including for producing reports, trends analysis, forecasting, monitoring, and analysis and operational purposes. Kantar shall ensure that any such use will not identify or refer to the Client by name and will be anonymised. Client acknowledges and agrees that Kantar will own any information and data retained under this clause 10.2.
10.3 In the event of an actual or threatened breach of these confidentiality provisions, the parties agree that the non-breaching party will have no adequate remedy at law and shall be entitled to seek immediate injunctive relief and any other equitable relief, without the necessity of showing actual monetary damages. The rights and obligations of the parties under this Agreement expire three (3) years after the effective date of expiration or termination; provided that with respect to Confidential Information that constitutes a trade secret under the laws of any jurisdiction, such rights and obligations will survive such expiration or termination until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the receiving party or its representatives.
10.4 Client grants permission to Kantar to (i) include Client’s name in its list of customers on its website or in any other promotional materials; or (ii) refer to the Client, orally or in writing, as a customer of the Services for promotional, marketing or financial reporting purposes. Except for this right, neither party shall have the right to use the other party’s name, trade mark, logo, or slogans without the prior written consent of such party.
11 Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, KANTAREXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, SUITABILITY, AVAILABILITY, TIMELINESS, QUALITY, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AGREE AND ACKNOWLEDGE THAT THE WEBSITE AND THE SERVICE ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS". OTHER THAN AS SPECIFICALLY SET FORTH HEREIN KANTAR MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES KANTAR MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG-INS) THROUGH THE USE OF THE SERVICE IS DONE AT THE SOLE RISK OF CUSTOMER AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM KANTAR OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
12 Limitation of Liability
12.1 Neither party will be liable to the other party (or to any person or entity claiming through the other party) for any special, incidental, indirect, consequential, exemplary or punitive damages or any lost profits arising out of or in any manner connected with this Agreement or the subject matter hereof, regardless of the form of action and whether or not such party has been informed of or otherwise might have anticipated the possibility of such Damages. In no event shall Kantar’s aggregate liability arising out of or relating to this Agreement regardless of the basis (including breach of contract, tort (including negligence) or otherwise) on which a Party is entitled to claim Damages from the other Party exceed the lessor of limited to $1,000 or the amount of fees paid to Kantar by Client. The limitations of liability set forth in this Agreement shall not apply to Damages for any liability that cannot be limited or excluded by law.
12.2 If conclusions, findings, Reports or recommendations (“Conclusions”) are required of Kantar as part of the Services, such Conclusions are solely and exclusively an opinion and are based on variable assumptions used in the field of market research and forecasting and are based on a controlled test environment. While Conclusions are the result of careful analysis and thorough work procedures, Conclusions constitute a single factor among many to be taken into account by Client. Conclusions are prepared for Client’s internal use only and Kantar expressly disclaims any liability for any use of or reliance on Conclusions by any third parties. In no event shall Kantar be liable to Client (or any third parties) for any Damages whatsoever with respect to any Conclusions made by Kantar in relation to the Services. Client hereby acknowledges that it shall be solely responsible for the consequences of any action taken by it based on Conclusions or the interpretation of such Conclusions.
12.3 Where the Services involve testing or using Client’s products, samples or test materials (including prototypes) and/or third party products supplied by Client, Client warrants, represents and undertakes that (i) any content, packaging or labelling shall comply with all relevant laws in all relevant territories; and (ii) Client shall be solely responsible for either providing any respondent disclaimer/waiver or approving any draft respondent disclaimer/waiver prepared by Kantar which may be required for the products, samples or test materials in question. If required by Kantar, Client shall produce evidence of sufficient product liability or other indemnity insurance as determined by Kantar. Kantar shall not be liable in any circumstances for the use of, loss of or damage to any such products, samples or test materials, once they have been supplied to respondents.
Client shall, at Client’s sole expense, indemnify, defend and hold Kantar, Kantar Group Companies and their respective officers, directors, employees and agents harmless from and against any loss, cost, damages, liability or expense arising out of or relating to or arising directly or indirectly out of or in connection with: (i) Client’s use of the Services, including its reliance on any information or materials (including survey results or responses) obtained through the use of the Service; (ii) Client’s breach of this Agreement; or (iii) testing or using such Client or third party products.
14.1 Neither party shall be in breach of this Agreement, nor liable for delay in performing, or failure to perform, any of its obligations under the same (except for Client’s obligations to pay fees and expenses), if such delay or failure result from Force Majeure. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
14.2 Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except assignment of the Agreement in its entirety or in part to an: (i) Group Company; (ii) a party’s successor pursuant to a merger, reorganization, consolidation or sale; or (iii) an entity that acquires all or substantially all of a party’s assets. If the assignment is made by either party to a competitor, then the parties agree that the non-assigning party may terminate this Agreement on not less than thirty (30) days written notice to the assignee and the assignor. The assigning party will provide reasonable assistance to the non-assigning party during the transition period.
14.3 The parties are independent contractors and nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between them, 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.
14.4 Except as specifically provided herein, all notices required hereunder shall be in writing and shall be given by: (i) personal delivery, in which case notice shall be deemed effective upon personal delivery; or (ii) national overnight courier service, in which case notice shall be deemed effective one (1) business day following deposit with the national overnight courier service. The addresses for giving notice shall be the parties respective addresses first set forth above, or any other address as shall be specified by a party in a written notice to the other party.
14.5 In the event that one party (“Filing Party”) seeks to pursue a grievance, claim, dispute or lawsuit against the other Party (Non-filing Party”) as a result of actions taken in furtherance of this Agreement or arising out of the terms or subject matter of this Agreement, the Agreement shall be interpreted and construed in accordance with and governed by the laws of the state where the Non-filing Party maintains its principal place of business, without regard to that state’s conflicts of laws rules. Further, the Parties hereby consent to the non-exclusive personal jurisdiction of any federal or state court located in the state where the Non-filing Party maintains its principal place of business, and the parties consent to venue in the same state and waive any claims of inconvenient forum with respect to same.
14.6 The rights and remedies provided for in this Agreement are cumulative and shall be in addition (not in lieu of) to any other rights and remedies provided by law or in equity.
14.7 No course of dealing, failure by either party to require the strict performance of any obligation assumed by the other hereunder, or failure by either party to exercise any right or remedy to which it is entitled, shall constitute a waiver or cause a diminution of the obligations or rights provided under this Agreement. No provision of this Agreement shall be deemed to have been waived by any act or knowledge of either party, but only by a written instrument signed by a duly authorized representative of the party to be bound thereby. Waiver by either party of any default shall not constitute a waiver of any other or subsequent default.
14.8 The terms, conditions, covenants and other provisions of this Agreement may be modified, amended, supplemented or otherwise changed only by a written instrument (excluding e-mail or similar electronic transmissions) that specifically purports to do so and is physically executed by a duly authorized representative of each party.
14.9 If any provision of this Contract is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from these Terms and the others shall remain in full force and effect.
14.10 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
14.11 The provisions of this Agreement that, by their nature and content, must survive the completion, rescission, termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive and continue to bind the parties.
14.12 In the event of any dispute arising out of this Agreement, the disputing party shall give written notice to the other party of the dispute. Following receipt of the notice the parties shall attempt to settle the dispute by negotiation. To this end, the parties shall use their respective reasonable endeavours to consult or negotiate with each other, in good faith and, recognizing their mutual interests attempt to reach a just and equitable settlement satisfactory to the disputing party. Negotiations shall be conducted between the parties’ respective most senior representatives with overall responsibility for the relationship between the parties. If a dispute is not settled by negotiation within a period of five (5) weeks from the date of notification of the dispute (unless the parties agree upon a longer time period), then either party may refer the dispute to the court.
14.13 This Agreement constitutes the complete understanding of the parties and supersedes all prior or contemporaneous agreements, discussions, negotiations, promises, proposals, representations and understandings (whether written or oral) between the parties, with regard to the subject matter of this Agreement. Client specifically acknowledges that it did not enter into this Agreement in reliance upon any agreement promise, representation or understanding made by or on behalf of Kantar that is not contained in this Agreement.
Updated: 24 August 2021