Forretningsbetingelser
STANDARD TERMS AND CONDITIONS
DEFINITIONS
“Acceptance” means written, oral or other acceptance by a Client of a Proposal or Statement of Work or JCF by the Company for the Services. If a Client operates a purchase order system then Acceptance will only apply on receipt by the Company of the Client purchase order number for the agreed fees as per the applicable Statement of Work or JCF.
“Ad-hoc Services” means one-off bespoke or custom market research and/or consultancy services provided by Company which are not Continuous Services.
“Affiliate” shall mean any entity which, directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control and in the case of Company is trading as Kantar Media from time to time, but excluding Europanel..
“Background Intellectual Property Rights” means all Intellectual Property Rights owned by the Company or Sub-Contractors prior to this Contract or developed separately from it.
“Client” means the party to whom the Company provides the Services as per the applicable Statement of Work or JCF.
“Company” means Kantar Media Denmark with registered address Raadhuspladsen 45, 1550, Copenhagen V and Company no 43 33 12 56.
“Confidential Information” means all information, data or material of whatsoever nature in any form, which either party, discloses to the other pursuant to this Contract (including the Proposal and anything the receiving party creates which is derived from or based upon the information, data or materials disclosed to it by the disclosing party).It shall not include any information or materials which: (a) is in or enters into the public domain (other than as a result of disclosure by the receiving party or any third party to whom the receiving party disclosed such information); (b) were already in the lawful possession of the receiving party prior to the disclosure by the disclosing party; (c) are subsequently obtained by the receiving party from a third party who is free to disclose them to the receiving party; or (d) are required to be disclosed by law or regulatory authority.
“Continuous Services” means bespoke continuous or tracking market research and/or consultancy services and which are not Ad-hoc or Syndicated Services provided by the Company.
“Contract” means these terms and conditions together with the detailed services as included in the applicable Statement of Work, JCF, ‘Kontrakt’ constitute the entire agreement between the parties. In the event of a conflict; these terms and conditions prevail over those in the Proposal.
“Control” shall mean (a) possession, direct or indirect, 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 (b) ownership, direct or indirect, of more than fifty percent (50%) of the outstanding voting securities or other ownership interest of such entity.
“Controller Personal Data” means any Personal Data Processed by a Processor or a Sub-processor on behalf of the Controller pursuant to this Contract.
“Data Protection Legislation” means all laws and regulations, including laws and regulations of the European Union (“EU”), the European Economic Area (“EEA”) and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Contract.
“Data Processing Agreement” or “DPA” means the data processing agreement entered into by the Client and the Company dated [DATO]
“Deliverables” means survey results, reports, data, summaries, comments, discussion, and/or analysis provided by the Company to Client as set out in the applicable Statement of Work.
“GDPR” means EU General Data Protection Regulation 2016/679 and the terms: “Controller”, “Data Subject”, “Personal Data”, “Processing” and “Processor” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
“Independent Auditor” means an auditor from PWC, Deloitte, KPMG, Ernst & Young or another mutually agreeable internationally recognized auditing firm that is not employed on a contingency basis;
“Initial Term” means the agreed minimum period of the Services as outlined in the applicable Statement of Work, JCF or ‘Kontrakt’.
“Intellectual Property Rights” means inventions, patents, moral rights, copyright, database rights, trademarks, designs, patents and/or know how or intellectual property rights or forms of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world.“Kantar Media Companies” means any Company Affiliates.
“Kantar Media Companies” means any Company Affiliates.
“Proposal” means the written proposal and/or quotation (exclusive of VAT unless otherwise stated) provided by the Company to the Client, which proposal shall be valid for acceptance for 3 months from the date of issue.
“Services” means the Ad-hoc Services and/or Continuous Services and/or Syndicated Services (as the case may be) as specified in the applicable Statement of Work, JCF, ‘Kontrakt’.
“Statement of Work”, “JCF”, or “Job Confirmation Form” means the document entered into by the parties which outlines their agreement in respect of the detailed Services and/or Deliverables and their related fees. In Danish, this document may be referred to as ‘Kontrakt’
“Sub-processor” means any third party appointed directly by Agency to Process Controller Personal Data on behalf of Client in connection with this Contract.
“Syndicated Services” means market research services which are either commissioned by the Company (or other Kantar Media Companies) or commissioned by and/or conducted for more than one Client and which includes subscription services.
IN THESE TERMS AND CONDITIONS, a reference to the singular includes plural and vice versa (unless the context otherwise requires).
1. THE CONTRACT
1.1 The Client appoints the Company and the Company accepts such appointment to provide the Services and Deliverables upon signing of these terms and conditions, which may only be changed by written agreement of the parties.
1.2 Any changes to the agreed Services or Deliverables may incur additional fees and/or expenses which will be agreed in writing between the Company and the Client prior to such changes being implemented.
2. PAYMENT OF FEES
2.1 Unless otherwise agreed in writing, for Continuous Services and Syndicated Services payment of the basic annual fees will be made in quarterly instalments in advance, commencing on the date of Acceptance and quarterly at the beginning of each quarter thereafter.
2.2 Unless otherwise agreed in writing, for Ad-hoc Services invoicing of the fees shall be as follows: 50% on Acceptance and 50% on completion.
2.3 All invoices shall be due on the invoice date and shall be subject to payment within 30 days from the end of the current month. Any payment after this 30 day period shall entitle Company to charge interest at the rate of 2% from the invoice date to the date when the Company receives full payment. Client shall pay the interest promptly on demand.
2.4 Unless the Proposal or Statement of Work, JCF, ‘Kontrakt’ details otherwise, all fees are quoted exclusive of Value Added Tax (VAT) (or any other equivalent sales tax or applicable withholding taxes). If any such taxes are due then the Company shall include such amounts on the invoice over and above the agreed fee.
2.5 Except where already included within the agreed fees; the Company shall be entitled to recover reasonable expenses incurred pursuant to the provision of the Services. Any such expense recharge invoices will include a breakdown. The Client reserves the right to request on an ad-hoc basis copy receipts for any individual items greater than €250/DKK 2.000.
2.6 For Services carried out wholly or in part outside Denmark, if through any currency fluctuation the Danish Kroner equivalent of the cost to the Company of any obligations incurred in respect of overseas work for the Client exceeds the cost shown in the Statement of Work, JCF, ‘Kontrakt’ the Company shall be entitled to charge for such obligations at the exchange rate which is in operation at the time the payment is made abroad.
2.7 Any prices quoted in a currency other than DKK or Euro in the Proposal are indicative only. At the time of Acceptance the Company may either enter into a forward contract (in Danish: Terminkontrakt) with its bank based upon the project specific invoicing schedule and contractual payment terms to finalise the non-DKK/Euro fees for the Statement of Work, JCF, ‘Kontrakt’ or they reserve the right to change the final price if the exchange rate moves by +/- 3% during the course of the Statement of Work, JCF or ‘Kontrakt’. The Company also reserves the right to recharge any foreign currency losses or bank charges incurred as a result of payment not being received in line with the contractual payment terms on any such forward contracts
3. TERM AND TERMINATION
3.1 The Contract duration will be specified in the applicable Statement of Work, JCF, ‘Kontrakt’.
3.2 Subject to clause 4.2; either party may terminate this Contract for convenience by giving the other party:
3.2.1 three (3) months’ prior written notice in respect of Ad-Hoc Services; and
3.2.2 6 (six) months’ prior written notice in respect of Continuous Services and Syndicated Services; provided no such termination may be effective earlier than upon the expiry of the Initial Term, if specified in the applicable Statement of Work, JCF or ‘Kontrakt’.
3.3 In addition, in respect of Syndicated Services, the Company shall be entitled to terminate such Services on 1 month’s prior written notice where, in the Company’s reasonable opinion, the continued provision of such Services to the Client is not commercially viable (for example, where the number of subscribers to such Services falls below an acceptable level).
3.4 Either party may terminate this Contract immediately for a material breach by the other which is incapable of remedy or, if capable of remedy, is not remedied within 45 days of notification being given to the defaulting party.
4. CHANGE, DELAY OR CANCELLATION
4.1 If, the Client requests changes to the Services the Company reserves the right to revise the fees and timelines accordingly.
4.2 If Services are shortened, delayed, cancelled or terminated early under clause 3.2 above by the Client, 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 the Company 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).
4.3 The Client is responsible for the prompt delivery to the Company of all material owned by or in possession of the Client reasonably required by Company to provide the Services and Deliverables. If the Client fails to comply with this clause the Client shall be liable for the consequential delays and reasonable additional costs and expenses incurred by the Company in providing the Services.
5. SUBCONTRACTING
5.1 To assist the Company in providing the Services the Company shall have the right to subcontract any part of the Services and Deliverables to other Kantar Media Companies or, after consultation, to appropriate third parties, agencies or fieldworkers. The Company is only responsible for the quality of the services provided by subcontractors if those subcontractors have been selected and paid for directly by the Company. If the Client designates a specific subcontractor, then the Company shall not be responsible for the accuracy, completeness or quality of the work of that subcontractor.
6. COMPANY’S OBLIGATIONS
6.1 The Company warrants that it shall use reasonable skill and care in providing the Services and Deliverables and will comply with Kantar Media’s corporate governance policies as per www.kantarmedia.com. However, the Client acknowl-edges and accepts that
6.1.1 the response rates to surveys/questionnaires cannot be predicted and are not guaranteed by the Company,
6.1.2 all figures contained in Deliverables will be estimates derived from sample surveys and subject to the limits of statistical errors/rounding up or down,
6.1.3 if conclusions and/or recommendations are required of the Company as part of the Services, such conclusions and/or recommendations are solely and exclusively an opinion of the Company and are based on variable assumptions used in the field of market research and forecasting and based on a controlled test environment. Whilst they are the result of careful analysis and thorough work procedures, they constitute a single factor among many to be taken into account by the Client;
6.1.4 Client shall be solely responsible for the consequences of any action taken by it based on the Deliverables or pursuant to its interpretation of the Deliverables; and
6.1.5 the Company shall use reasonable endeavours to meet the agreed timelines, however, the Client recognises that these dates are estimates only and Company shall not be responsible for any loss or damage as a result of a failure to meet such dates.
6.2 The Company disclaims all other warranties, either express or implied, including warranties for merchantability, and fitness for a particular purpose.
6.3 The Company agrees to use all reasonable endeavours to comply with the MICC/ESOMAR International Code of Market and Social Research; where applicable to the Services.
7. INTELLECTUAL PROPERTY RIGHTS AND PUBLIC STATEMENTS
7.1 The Company shall own all right, title and interest in the Proposal & ‘Kontrakt’ including all ideas, solutions and methodologies included in such, unless subsequently purchased by the Client in an applicable Statement of Work, JCF or ‘Kontrakt’, in which case clauses 7.2 through to 7.8 shall apply.
7.2 The Company shall remain the sole owner of the Intellectual Property Rights in Background Intellectual Property Rights.
7.3 For Syndicated Services the Intellectual Property Rights in the Deliverables vest in the Company at all times. The Client will be entitled on the completion of the Services and after payment of all fees due to the Company to use the Deliverables for the bona fide and proper internal purposes of its business but shall not grant licences to others.
7.4 For Ad-hoc and Continuous Services and to the extent such rights arise under applicable laws the Intellectual Property Rights in the Deliverables vest in the Client subject to payment of all fees due to the Company in respect of such Deliverables, and the Company and Kantar Media Group Companies shall have the right to use without charge, such Deliverables for their internal use and in connection with any relevant legal dispute. It is understood and agreed that Company retains all rights, title and interest in and to the Background Intellectual Property Rights. Company hereby grants to Client a non-exclusive, worldwide, perpetual (without regard to any termination or expiration of this Contract), irrevocable, fully paid, royalty-free license to use the Background Intellectual Property Rights to the extent they are included in, and as necessary to use and exploit internally, the Deliverable(s) and solely as incorporated in such Deliverable(s). Further, all materials and intellectual property owned by third parties (such as third party data, images and software) shall remain the sole and exclusive property of such third parties, except as may be otherwise provided in an applicable agreement with such party, and subject to their license terms.
7.5 The Client shall not disclose the Deliverable publicly in any manner that is likely to harm the Company’s or Kantar Media Companies’ reputation or business. In particular, the Client agrees not to use the Deliverable in any manner that could or does exaggerate, distort or misrepresent the findings of or data supplied by the Company.
7.6 The Client understands that it must inform the Company in writing prior to the commencement of any work if it intends to make any advertising, public statement, marketing material, press releases or the like (“public statement”) that contain the whole or any part of the Deliverables or any part of the Services.
7.7 Any public statement, marketing material, press releases or the like that contain the whole or any part of the Deliverables shall only be
7.7.1 disclosed upon prior written consent of the Company (which consent shall not be unreasonably withheld), and
7.7.2 accompanied by an acknowledgement, such as “Data/figures/information supplied by Kantar Media Danmark or Kantar Media Gallup xx/month xxx/year”.
7.8 The parties shall be entitled to list each other as its’ service provider or Client in marketing/promotional material, except for this right the Client shall have no right to use the Company’s name, trademarks, logos, or slogans without the prior written consent of the Company.
7.9 Notwithstanding anything else herein, the Company shall retain the right to use the Deliverables and any related information in its databases. Such databases are an essential tool in the interpretation of data for clients, providing normative data on standard questions and adding value for clients by providing greater understanding of how brands and advertisements generally perform. Information used pursuant to this Clause 7.9 shall only be used on an aggregated basis and shall not be used for any other purpose without the Client’s prior written consent.
8. CONFIDENTIALITY
8.1 The receiving party agrees that it shall:
8.1.1 use the Confidential Information only to fulfil its obligations pursuant to this Contract;
8.1.2 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 to the receiving party’s directors, employees, parent company, subsidiaries or agreed subcontractors, who need access to such Confidential Information for use in connection with the Services and who are bound by appropriate confidentiality and non-use obligations; and
8.1.3 comply promptly with any written request from the disclosing party to destroy or return any of the disclosing party’s Confidential Information except that the receiving party may retain a copy for legal purposes along with any copies retained within their computer system’s back-up media taken as part of their standard disaster recovery procedures and so long as this clause 8 continues to apply to any such copies.
9. DATA PROTECTION
9.1 Both parties shall comply with their respective obligations under Data Protection Legislation in connection with the performance of their obligations under this Contract.
9.2 If GDPR applies to the Processing of Personal Data, the DPA shall apply, and shall prevail in the event of a conflict between the terms of the DPA and those set out in clauses 9.3 – 9.7 below.
9.3 The duration of the Processing, the nature and purpose of the Processing, the types of Controller Personal Data and categories of Data Subjects Processed under this Contract are further specified in the Statement of Work or JCF.
9.4 In the event that the Services and/or Deliverables involve the Processing of Personal Data for the purpose of the Services the Controller shall ensure the necessary consent from the relevant Data Subjects has been obtained or ensure that it otherwise has the right under the Data Protection Legislation to Process such Personal Data.
9.5 In connection with Personal Data supplied by the Client to the Company, the Company shall:
9.5.1 Process such Personal Data only for the purposes of providing the Services;
9.5.2 take such technical and organisational security measures against unauthorised and unlawful processing of, accidental loss of, destruction of or damage to Controller Personal Data as may be required, having regard to the state of technological development and the cost of any measures, to ensure a level of security appropriate to the harm that might result from such processing, loss, destruction or damage and the nature of the Controller Personal Data to be protected; and
9.5.3 answer the Controller’s reasonable enquires to enable the Controller to monitor the Processor’s compliance with this clause.
9.6 The Controller warrants and undertakes that where it provides Controller Personal Data to the Processor it has lawfully obtained such Personal Data and has, without limitation to the generality of the foregoing obtained all necessary consents from Data Subject or that it has another appropriate legal basis to be able to Process such Controller Personal Data in accordance with this Contract.
9.7 The Processor shall reasonably cooperate with the Controller in meeting the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR) in relation to Personal Data provided by the Controller to the Processor. Controller accepts that certain sensitive information in relation to IT and security will be redacted before being audited and may only be audited at the Processor’s premises. With the Processor’s agreement, this audit may cover documents only or may include a supervised and controlled onsite audit, subject to Customer notifying Processor of the identity of the Independent Auditor and that such Independent Auditors have entered into an appropriate confidentiality agreement with the Processor. Audits shall take place no more than once in any calendar year. Costs of the audit, including appointment of the Independent Auditor, will be borne by Controller. Processor shall be entitled to review and retain any audit report, prepared by Independent Auditor and to consult the Independent Auditor on the content, prior to the report being submitted to the Controller. For the avoidance of doubt, all confidential information of Processor obtained pursuant to any audit shall be maintained in confidence and may not be disclosed to any third party. Neither the Independent Auditor or Controller shall be permitted to perform penetration tests, vulnerability scans, or otherwise interrogate the Processor’s network or information technology systems. In no circumstances shall Controller or Independent Auditor have access to
9.7.1 individual payroll and personnel files;
9.7.2 individual expenditure or records relating to the Processor’s other clients;
9.7.3 any of the Processor’s overhead costs; or
9.7.4 the Processor’s server rooms or IT systems.
10. LIMITS AND EXCLUSIONS OF LIABILITY
10.1 Neither party shall be liable for the other’s loss of profits, loss of turnover, loss of data, loss of business opportunities, or indirect or consequential loss including fines. Liability is not excluded for
10.1.1 fraudulent misrepresentations, and/or
10.1.2 death or personal injury caused by the negligence of either party; and/or
10.1.3 any loss which may not be limited by law.
10.2 The Company shall not be liable for any loss howsoever arising from or in connection with the Client’s use or interpretation of the Deliverables.
10.3 Save in relation to the indemnity liability pursuant to clause 11 and subject to clause 10.1, each party’s maximum aggregate liability however so arising under or in connection with this Contract whether in contract, tort, (including negligence), breach of statutory duty or otherwise shall not exceed the higher of €100,000 or the amount of the fees in the applicable Statement of Work or JCF giving rise to the claim.
11. PRODUCT TESTING
11.1 Notwithstanding anything to the contrary in this Contract where the Services involve testing or using the Client’s products (including prototypes) and/or third party products supplied by Client, the Client shall indemnify the Company and other Kantar Media Companies from and against any losses, third party claims, demands, damages, costs, charges, expenses or liabilities (or actions, investigations or other proceedings in respect thereof) which the Company and other Kantar Media Companies may suffer or incur relating to or arising directly or indirectly out of or in connection with testing or using such products.
12. MISCELLANEOUS
12.1 The obligations set out in clauses 2, 3.2, 7, 8, 9, 10, 11, 12.2, 12.7 and 12.8 shall survive termination for a period of 1 year.
12.2 Any notice given hereunder shall be in writing. In the case of the notice to the Company, notice sent by email shall be sent to the project responsible and copied to at least one other contact at the Company or designated CEO or FD.
12.3 The Company shall not be liable for failure to perform its obligations hereunder due to, fires, storms, riots, strikes, disease, shortages of materials, lock-outs, wars, key employees not being available to perform the Services through death, illness or departure from the Company, floods, civil disturbances, terrorism, Governmental control, restriction or prohibition whether local or national.
12.4 The invalidity or unenforceability of any part of this Contract shall not affect the other provisions of this Contract.
12.5 The Company shall be entitled to assign its rights and obligations under this Contract either to any member of the Kantar Media Group or in the event of a change of control and will notify Client in writing of such assignment. The Company shall also be entitled to assign receivables due from Client
12.6 No term of this Contract shall be enforceable by a third party.
12.7 This Contract shall be governed by and construed in accordance with the laws of Denmark and the courts of Denmark shall have exclusive jurisdiction save in respect of enforcement where their jurisdiction shall be non-exclusive.