The following terms of business apply to all contracts between Firefish, The Numbers Lab and The Pineapple Lounge (each the “Company”, as applicable). Acceptance of the research proposal and commissioning of the project will be taken as acceptance of these terms of business, unless otherwise agreed in writing before commencing the project. If there is a discrepancy between the terms of business and the research proposal, then the research proposal will take precedence.
Fees & Invoicing
1. The full (100%) amount will be invoiced on commissioning the project. Outstanding costs (including, without limitation, under terms 4, 10, 11, 13, 14, and 23) will be invoiced on completion of the project.
2. The fees exclude VAT, which will be charged as applicable.
3. The Company reserves the right to charge for supplementary expenses such as hotel, travel and subsistence costs that are not covered in the initial cost.
4. Payment of each invoice is due from you within 30 days of the invoice date and the Company will be entitled to charge interest on all sums outstanding thereafter at a rate of 2% per month calculated on a daily basis payable from the invoice date until the date of payment of the outstanding amount in full.
5. The Company reserves the right to adjust costs as a result of extreme currency volatility. Our costs are based on the prevailing exchange rate which is included in our research proposal to you. If the rate moves more than +/- 3% between project commission and payment date we will adjust our invoices accordingly. Fees must be paid in sterling unless otherwise agreed at the time the project is commissioned. For payments made in a currency other than sterling, US dollar or Euro an administrative charge may be made.
6. Any quotation for a project made by the Company will remain valid for two months, subject to clause 5.
7. The Company reserves the right to adjust the fees and the date of completion of the project in the event that the project proposal is altered after the project is commissioned.
Confirmation, cancellation, postponement & termination
8. The Company requires written confirmation to commence a project. Once the project has been confirmed, cancellation or postponement charges will apply.
9. For cancellation of qualitative projects, charges will be 100% of all costs incurred by the Company, plus a portion of the consultancy fees, the portion chargeable being dependent on when notice of the cancellation is received, as follows:
Received more than 7 working days before fieldwork is scheduled to commence – 25% of the consultancy fee
Received between 4 and 7 working days before fieldwork is scheduled to commence – 50% of the consultancy fee
Received between 1 and 3 working days before fieldwork is scheduled to commence – 75% of the consultancy fee
Received the day fieldwork is scheduled to commence or thereafter – 100% of the consultancy fee
10. For qualitative projects postponement will be charged as follows:
If the project is rescheduled and takes place within four weeks of the date fieldwork was originally scheduled to commence, this will be treated as a postponement. In this instance, any costs incurred where the work cannot be repurposed will be charged, but a credit will be applied against the project cost for a quarter of the consultancy fee cancellation charge levied.
Any postponement more than four weeks from the original start date will be treated as a cancellation.
11. For quantitative projects, cancellation charges will be calculated on a case by case basis and will be dependent on the volume of work already completed. Any postponement more than four weeks from the original start date will be treated as a cancellation.
12. Either of us may terminate this agreement at any time by written notice to the other if the other goes into liquidation, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed over all or part of its business.
13. The fees quoted are estimated according to specific project requirements, the agreed timescale and any assumptions detailed in the proposal. If the timescale, project objectives or requirements or research approach or the assumptions on which the quote is based change in any way, the Company reserves the right to review the agreed fee and charge for any additional work that has resulted from changes.
14. The Company accepts no responsibility or liability for delays or disruptions to the performance of any of its obligations under this agreement that may be caused by, or arise, or become materially more difficult or more expensive to perform, as a result of, weather, transport difficulties, industrial action or labour dispute, Acts of God, terror attacks, war, changes of law or actions taken by any government or public authority, the decision by the UK to leave the EU, or any other circumstances beyond the Company’s reasonable control.
15. The fees include one verbal presentation and an electronic copy of documentation. We reserve the right to charge for additional presentations and the production of additional documents.
16. The cost of stimulus material or colour copies of stimulus material will be charged plus a handling fee of 10% at our discretion.
17. The Company observes the Code of Conduct of the Market Research Society and qualitative recruitment best practice outlined by the Association of Qualitative Research. Copies of both can be found on the websites of these bodies (www.mrs.org.uk and www.aqr.org.uk ).
18. The identity of personal records of people who take part in projects are confidential information and are not to be revealed to you or any third party. Attempts to directly contact or market to research participants is not permitted.
19. We gain research participants’ permission to use recordings, footage or material that contains Personal Data for research purposes and internal business uses only, not for use by you in external promotions or in the public domain unless has been expressly agreed with us and consented to by participants.
20. Except in respect of death or personal injury, the Company shall not be liable to you by reason of any representation (unless fraudulent), or any term (express or implied) of our agreement for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims which arise out of or in connection with the project or the use of the results of the project by you, and the entire liability of the Company under or in connection with the agreement shall not exceed £5,000,000 in respect of any claim or series of connected claims.
21. You will supply at your expense, all agreed documents or other materials, and all necessary data or other information relating to the project (and ensure the accuracy of the same), within sufficient time to enable us to carry out the project in accordance with the proposal.
22. Any changes or additions to the project must be agreed in writing by us.
23. Upon commencement of the project, you will be responsible for the insurance of any product samples or stimulus material used in the research against accidental loss or damage, until the date of their disposal or return to you in accordance with this term. The Company may dispose of all materials supplied by you after six months following completion of a project, unless you request their return, at your expense, in writing.
Copyright and confidentiality
24. The copyright and all other intellectual property rights whatsoever in any work produced by us for you during the project including (without limitation) our proposal, debrief documentation and any other materials whether (without limitation) vested, contingent or future shall belong to you. The Company shall not be obliged to transfer or assign any Intellectual Property Rights in our methods of work, working papers, computer programmes, methodologies, skills, experience, expertise and any associated or related information maintained by the Company in any form, all Intellectual Property Rights therein remaining vested in the Company.
25. You warrant that any material or information supplied by you and its use by us, will not infringe the copyright or other intellectual property rights of any third party, and you will indemnify us against any loss, damages, costs, expenses or other claims arising from any such infringement.
26. We undertake to keep confidential and not disclose to any other person (except in the proper performance of duties) either during or after the termination of this contract any information whatsoever relating to your business or any trade secrets or make use of the same in any manner which might be prejudicial to your interests.
27. You undertake to keep confidential and not disclose to any other person either during or after the termination of this contract any information whatsoever relating to our business, any proposals, methodologies and debrief documentation or other information supplied by us during or before the project, or make use of the same in any manner which might be prejudicial to our interests.
28. The findings from the Company’s research may only be published, used or quoted elsewhere, with our prior written approval and provided that the findings and work are attributed to the Company.
29. You also agree to the terms of the Data Processing Addendum Agreement which is appended to the Terms and Conditions, and forms part of them.
30. English law governs the agreement between us and you agree to submit to the non-exclusive jurisdiction of the English courts.
31. These terms, together with the Data Processing Addendum Agreement, the proposal and proposal confirmation, constitute the entire agreement between us, supersede any previous agreements or understandings and all other terms, express or implied by statute or otherwise are excluded to the fullest extent permitted by law.
32. A notice required to be served on either of us under this agreement shall be in writing addressed to the other at its registered office or principal place of business or such other address as may have been notified to the party giving notice pursuant to this term.
33. No failure or delay by us to exercise any of our rights under the agreement shall be deemed to be a waiver of that right, and no waiver of any breach of the agreement shall be considered as a waiver of any subsequent breach of the same or any other provision.
34. If any provision of these terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of these terms and the remainder of the provision in question shall not be affected.
DATA PROCESSING ADDENDUM AGREEMENT BETWEEN COMPANY AND CLIENT
This Data Processing Addendum Agreement forms part of the Terms and Conditions between Firefish, The Numbers Lab and The Pineapple Lounge (each the “Company”, as applicable), and each of their clients (the “Client” for the purpose of this Addendum Agreement) and shall be deemed accepted upon acceptance of the research proposal and commissioning of the project and shall be deemed incorporated into those Terms and Conditions.
The following definitions apply in this Addendum Agreement:
“Client Personal Data” means Personal Data provided by the Client to the Company for the purpose of receiving the services set out in the applicable Proposal.
“Company Personnel” means all or any of: (i) directors, officers, employees and/or agents of the Company; (ii) the directors, officers, employees and/or agents of the Company’s sub-contractors; and (iii) any other individuals engaged by or on behalf of the Company or any of its sub-contractors in the performance of any part of the Company’s obligations under this Agreement.
“Data Protection Legislation” means:
(i) the European Data Protection Directive (95/46/EC) and any national implementing laws, regulation and secondary legislation, including, for the avoidance of doubt, the UK Data Protection Act 2018, as amended from time to time; and (ii) the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) and any national implementing laws, regulation(s) and secondary legislation, in each case as such law(s) may be replaced, supplemented, substituted or amended from time to time; and
(ii) the European Privacy and Electronic Communications Directive (Directive 2002/58/EC).
“Personal Data” has the meaning provided in the GDPR.
“Proposal” means the proposal document provided by the Company to the Client setting out details of the Services, as agreed to by the Client.
“Regulator” means any regulatory, administrative, supervisory or governmental agency, body or authority (whether regional, national or supranational) to whose rules, regulations or guidance any Party (or any assets, resources or business of such Party) is, from time to time, subject or submits, or which otherwise relate to the Services.
“Reportable Breach” means any unauthorised or unlawful processing, disclosure of, or access to, Client Personal Data provided by the Client and/or any accidental or unlawful destruction of, loss of, alteration to, or corruption of such Client Personal Data which is likely to result in a risk to the rights and freedoms of any identified or identifiable individuals to whom the Client Personal Data relates.
“Services” means the services provided or to be provided by the Company to the Client pursuant to the relevant Proposal.
1. DATA PROTECTION
1.1 Terms and expressions used but that are not defined in this Addendum Agreement have the meanings assigned to them in Data Protection Legislation.
1.2 Appendix 1 at the back of this Addendum Agreement sets out the scope, nature and purpose of processing by the Company, in performing its obligations under this Addendum Agreement, and the duration of that processing, the applicable types of Personal Data and categories of data subject.
1.3 To the extent it acts as a Data Processor in the provision of the Services, the Company will:
(a) process the Client Personal Data in compliance with its obligations under the Data Protection Legislation;
Security & Compliance with Instructions
(b) take and maintain the appropriate technical and organisational measures to ensure the security of the Client Personal Data and against the unauthorised or unlawful processing of, and accidental loss or destruction of, or damage to, such Client Personal Data;
(c) ensure that the Company Personnel who access the Client Personal Data are under an obligation to handle the Client Personal Data in accordance with the obligations regarding confidentiality of information in accordance with the Terms and Conditions;
(d) process the Client Personal Data only: (i) as reasonably necessary for the performance of the Company’s obligations, and exercise of its rights, in accordance with Terms and Conditions and the relevant Proposal, which the Client agrees sets out the Client’s complete, documented instructions regarding the processing of Personal Data; or (ii) as required by any Data Protection Law to which the Company is subject. Further, the Company shall notify Client in case the Company is of the opinion that an instruction of Client is not in compliance with Data Protection Legislation (in which case the Parties shall discuss the situation, the Company shall not be required to follow the relevant instruction);
(e) provide to Client, at Client’s cost, such information, co-operation and assistance as Client may, from time to time, require to enable Client to comply with its obligations under the Data Protection Legislation in respect of any Client Personal Data, but only to the extent the Company is reasonably able to do so taking into account the nature of the processing of the Client Personal Data undertaken in providing the Services and the information the Company has in its possession and control;
(f) assist Client, by appropriate technical and organisational measures, for the fulfilment of Client’s obligation to respond to requests for the exercise of data subject rights (including access requests) set out in the Data Protection Legislation, to the extent possible for the Company to do so, taking into account the nature of the processing of the Client Personal Data undertaken in providing the Services and without requiring the Company to incur any additional costs in providing such measures;
(g) notify Client in writing, as soon as reasonably practicable, if it:
(i) receives from a data subject a communication relating to, request for, or notice of, the exercise of that person’s rights under, the Data Protection Legislation in relation to the Data, where Company is not a Data Controller in respect of that Personal Data; or
(ii) receives any complaint, request, notice or communication which relates directly or indirectly to the processing of the Personal Data by the Company on behalf of Client or to either Party’s compliance with the Data Protection Legislation (save to the extent that such notification is prohibited by the relevant Data Protection Legislation),
and, in each case, provide a copy of any such request or notice and reasonable details of the circumstances giving rise to that request or notice to the extent known to the Company;
Data Breach & Deletion or Return of Data
(h) notify Client, without undue delay upon becoming aware, of a Reportable Breach and provide, together with such notification, such details of the nature of Client Personal Data affected, the categories and number of data subjects concerned and approximate volume of Client Personal Data records affected, to the extent known to the Company at such time;
(i) promptly, and at the option of Client, return (if feasible) to Client or delete or destroy all of the Client Personal Data and all materials containing any copies of the Client Personal Data held by the Company on behalf of Client following the termination or expiry of the Company’s applicable Services with the Client, other than to the extent that its retention is required by Data Protection Law to which the Company is subject.
Sub-contracting & Cross-border Transfers
1.4 Client agrees the Company may disclose Client Personal Data to any third party to which the Company is permitted to sub-contract any element of the Services (a Sub-processor) to the extent such disclosure is necessary for such third party’s provision of that element of the Services and provided that:
(a) the Company will have an agreement in place with that Sub-processor which imposes obligations on the Sub-processor no less onerous than those set out in this Addendum Agreement;
(b) the Company will remain liable for the performance of such obligations by such third party with regards to the processing of Client Personal Data.
1.5 The Company will not transfer any Client Personal Data to a country or international organisation located outside the country of origin unless it ensures that it complies with the obligations set out in Data Protection Legislation regarding the transfer of Personal Data to third countries or international organisations, including, for example, the use of Standard Contractual Clauses.
1.6 Joint Data Controllers
In the event that the Company and the Client are acting as Joint Data Controllers in respect of Client Personal Data or other Personal Data processed by either party in the provision of the Services, both parties acknowledge that they must comply, and must procure that their agents and/or sub-contractors shall comply, with applicable Data Protection Legislation.
1.7 Client’s Obligations.
(a) ensure that Client will comply with its obligations under applicable Data Protection Legislation in relation to its collection, processing and provision of Client Personal Data to the Company in connection with this Agreement, including that its processing of Client Personal Data using the Services is lawful and is undertaken in accordance with the principles relating to the processing of Client Personal Data set out in Data Protection Legislation;
(b) ensure there is no prohibition or restriction in place which would prevent or restrict Client from disclosing or transferring the Client Personal Data to the Company, or that would prevent or restrict the Company disclosing or transferring the Client Personal Data to the Sub-processors;
(c) not process any Client Personal Data using the Services, or permit the Company to process any Client Personal Data, in breach or contravention of any order issued to, or limitation of processing imposed on, Client by any Regulator;
(d) provide the Company with such co-operation and information as the Company may reasonably request from time to time to permit the Company and/or any Sub-processor to comply with its obligations under Data Protection Legislation; and
(e) not name the Company (or any Sub-processor) or otherwise refer to the Company (or any Sub-processor) in any communication to any Regulator or any data subject relating to any Reportable Breach or any other (alleged) breach of security leading to the accidental or unlawful processing without the Company’s prior written approval of the content of such communication (other than such content that does not relate or impact on the Company).
(a) In the event of any conflict between the terms of this Data Processing Addendum Agreement and the Terms and Conditions or any other agreement between the parties, the terms of this Data Processing Addendum Agreement shall prevail.
(b) The parties agree this Data Processing Addendum Agreement supersedes any other agreements or provisions in place between the parties in relation to personal data protection and security.
(c) This Data Processing Addendum Agreement shall be governed by and constructed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts in the event of any conflict in relation to this Data Processing Addendum Agreement or its subject matter.
Appendix 1 – PROCESSING, PERSONAL DATA AND DATA SUBJECTS
1. Processing by the Company: To undertake research recruitment, fieldwork and analysis. To create research findings and associated deliverables as set out in each Proposal
2. Scope & Nature: See description of Services in applicable Proposal
3. Purpose of processing: Market research services as per the Service description
4. Duration of the processing: Until termination of Company’s engagement with the Client and such reasonable time following such termination to allow for data deletion from systems where applicable
5. Data subjects: Market research participants
6. Types and/or categories of personal data:
• Name and contact details (phone and email)
• Age, gender and location
• Address, if any research is to be conducted in a home
• Bank details for incentives paid via BACS
• Audio recordings, video footage and films
• Other types of personal data will be agreed on commission of each Proposal. Sensitive personal data will not be directly requested unless necessary to provide the Services