CLIENT TERMS AND CONDITIONS
(A) Rare has developed a digital platform known as The Nod (“the Service”, as further defined below) for the purpose of conducting market research with fast results which are made available to clients on a pay per Study basis. These terms and conditions govern the making available and use of the Service.
IT IS AGREED as follows:
The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement means these terms and conditions and the Study Order;
Authorised User means those employees, agents and independent contractors of the Client who are authorised by the Client to use the Service.
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client means the party placing the order for the Service via submission of the Study Order. For the avoidance of doubt, where a company or organisation name is included in the Study Order or during the Service sign-up process, the Client is that company or organisation.
Client Materials means any information and any other materials, works of any form (including digital form), prototypes, products, designs, data and other items supplied to Rare by the Client in the course of or in relation to the Service.
Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.
Data Protection Legislation means the Data Protection Act 2018 and the General Data Protection Regulation.
Effective Date means the date of submission of the Study Order by the Client.
Intellectual Property Rights means all patents, trade marks, trade names and domain names, service marks, rights to inventions, copyright and related rights, rights in get up, rights in goodwill, unfair competition rights, rights in designs, database rights, rights in confidential information (including know how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewal or extensions of, such rights and similar or equivalent rights or forms of protection in any part of the world.
Normal Business Hours means 9.00 am to 6.00 pm local UK time, each Business Day.
Personal Data means personal data (as defined in the Data Protection Legislation).
Rare means Rare Training and Consultancy Limited a company registered in England and Wales with company number 09365602 with its registered office at Haines Watts, Stirling House, 71 Francis Road, Edgbaston, Birmingham, B16 8SP, United Kingdom.
Respondent means an individual from whom feedback or information is sought by Rare as part of a Study, either sourced directly by Rare, or via a third party platform (information on the third party platforms Rare utilises as part of the Service is available on request).
Responses means the results and data produced by the Studies conducted via the Service.
Sample Size means the size of a Study, in terms of number of Respondents.
Service means the online service provided by Rare to the Client under this Agreement known as “The Nod”, more particularly described in the Study Order and the Service Description.
Service Description means the description of the Service and the user instructions for the Service as made available to the Client by Rare online via www.thenod.co or such other web address notified by Rare to the Client from time to time.
Software means the software applications to which access is provided as part of the Service.
Service Fees means the service fees payable by the Client to Rare for access and use of the Service, as set out in the Study Order.
Study means the collection of the Responses to the survey sent to Respondents as part of the Service.
Study Order means the summary of the Client's order as set out on the "Review Your Study" page of the order journey and including the Sample Size, expected completion time and Service Fees.
Term means the term of this Agreement, commencing on the Effective Date and terminating in accordance with clause 13.
Virus means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
Subject to the Client paying the Service Fees and complying with the terms and conditions of this Agreement, Rare grants to the Client:
a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Client and Authorised Users to use the Service during the Term; and
a non-transferable right, without the right to grant sub-licences, to permit the Client and Authorised Users to use the Responses and any outputs from the Service for the Client’s own business purposes.
The Client shall not:
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:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
access all or any part of the Service in order to build a product or service which competes with the Service;
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party (except as is expressly permitted under the terms of this Agreement), or
attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause 2.
The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify Rare.
The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client unless otherwise specified in the Study Order or subsequently agreed in writing.
Rare shall, during the Term, provide the Service and make available the Responses to the Client on and subject to the terms of this Agreement.
Rare shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:
planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
unscheduled maintenance performed outside Normal Business Hours, provided that Rare has used reasonable endeavours to give the Client at least 6 Normal Business Hours' notice in advance.
The Client can contact Rare for support services during Normal Business Hours by way of firstname.lastname@example.org.
The sharing of Client Materials with an agreed pool of Respondents will form part of the Service. The nature of the Service means that it is not appropriate for Rare to seek to impose obligations of confidentiality on Respondents. The Client acknowledges and agrees, therefore, that Rare shall be entitled to share Client Materials with Respondents on an open basis and that Rare shall not have any liability to the Client for any unauthorised use or disclose of such Client Materials by a Respondent or any third party.
The Client warrants that:
the Client Materials and their use, reproduction and dissemination as part of the Services does not and will not infringe the Intellectual Property Rights of any third party, breach the rights of privacy or confidentiality of any person or otherwise be obscene, defamatory or unlawful;
the Client has obtained all consents, licences and approvals required to enable the use, reproduction and sharing of the Client Materials by Rare as part of the Services.
Where Rare acts as a data controller in relation to the Personal Data of Authorised Users, it will do so in accordance with its Privacy Notice available at www.thenod.co/privacy.
If Rare processes any Personal Data on the Client's behalf when performing its obligations under this Agreement, the parties record their intention that the Client shall be the data controller and Rare shall be a data processor. as set out in Rare's Privacy Notice.
maintain at all times an appropriate notification under the Data Protection Legislation and / or pay the appropriate data protection fee (where required);
only carry out processing of Personal Data on the Client's reasonable documented instructions from time to time;
not engage any third party to carry out processing in connection with the Service on behalf of the Client without the Client's prior written consent;
only transfer such Personal Data to countries outside the UK and/or European Economic Area that ensure an adequate level of protection for the Personal Data and the rights of the data subject and in any event only with the express prior written authorisation of the Client;
pursuant to clause 13, on termination of this Agreement or any earlier termination of Rare's right or obligation to process Personal Data, and as otherwise directed by the Client, Rare shall either:
destroy the Personal Data and all copies thereof; or
transfer the Personal Data to the Client or such other third party as the Client may direct,
keep and provide to the Client on request a record of Rare's use of the Personal Data and processing activities and shall make available to the Client the information necessary (and allow for and contribute to audits or inspections) to demonstrate compliance with Rare's data processing obligations set out in this Agreement.
Both parties shall:
provide all reasonable assistance to each other, having regard to the nature of processing and the information in order to assist each other to comply with its obligations under the Data Protection Legislation (including the notification of a personal data breach to the Information Commissioner and to the data subject(s) affected, and the preparation of data protection impact assessments, where appropriate);
take and/or implement appropriate technical and organisational measures against unauthorised or unlawful processing of such Personal Data, and against accidental loss, alteration or destruction of, or damage to, such Personal Data, and ensure the security of such data at all times;
take reasonable steps to ensure the reliability of all its employees or other representatives who have access to the Personal Data and shall ensure that all such persons have committed themselves to confidentiality obligations or are under an appropriate statutory obligation of confidentiality and have undertaken training in the requirements of the Data Protection Legislation.
The Client shall ensure that the Client is entitled to transfer the relevant Personal Data to Rare so that Rare may lawfully use, process and transfer the Personal Data in accordance with this Agreement and Data Protection Legislation.
Rare undertakes that the Service will be performed substantially in accordance with the Service Description and with reasonable skill and care. This undertaking shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Rare's instructions, or modification or alteration of the Service by any party other than Rare or Rare's duly authorised contractors or agents.
Rare shall not be liable for any problems which may arise in relation to the Service which are caused by incorrect instructions or defective information provided by the Client.
Rare shall endeavour to provide the Client with Responses by way of recruiting Respondents through a combination of publishers, mobile apps and gaming networks, rather than the traditional method of recruiting from a panel list of individuals who often complete multiple panels in a day and do not answer questions properly. Rare shall not, however, be liable for the quality of the Responses.
Notwithstanding the foregoing, Rare:
does not warrant that the Client's use of the Service will be uninterrupted or error-free; or that the Service, Service Description and/or the information obtained by the Client through the Service will meet the Client's requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Service Description may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This Agreement shall not prevent Rare from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
Rare warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
The Client shall:
provide Rare with:
all necessary co-operation in relation to this Agreement; and
all necessary access to such information as may be required by Rare;
in order to provide the Services;
comply with all applicable laws and regulations with respect to its activities under this Agreement;
carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, Rare may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that its personnel use the Service in accordance with the terms and conditions of this Agreement;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Rare, its contractors and agents to perform their obligations under this Agreement, including without limitation the Service;
ensure that its network and systems comply with the relevant specifications provided by Rare from time to time; and
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Rare's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
The Client shall not access, store, upload, distribute or transmit any Viruses, or any material during the course of its use of the Service that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property.
Rare reserves the right, without liability or prejudice to its other rights, to disable the Client's access to any material that breaches the provisions of this clause.
Charges and payment
The Client shall pay the Service Fees to Rare for the Service in accordance with this clause 9 and the Study Order.
Payment of the Service Fees shall be made by the Client on the Effective Date and in advance of using the Service and receiving the Responses from the Study.
All amounts and fees stated or referred to in this Agreement are, subject to clause 13, non-cancellable and non-refundable;
The Client acknowledges and agrees that Rare and/or its licensors own all Intellectual Property Rights in the Service and the Responses. Except as expressly stated herein, this Agreement does not grant the Client any rights to, under or in, the Intellectual Property Rights or any other rights or licences in respect of the Services or the Responses.
Rare confirms that it has all the rights in relation to the Service and the Responses that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
Rare may use and reproduce part or all of the Responses for any purpose, subject to Rare's obligations of confidentiality to the Client under clause 11.
Rare hereby grants to the Client a perpetual, irrevocable, royalty-free licence to use and reproduce part or all of the Responses for any purpose, subject to the Client's obligations of confidentiality to Rare under clause 11 and full payment of the Service Fee.
Confidentiality and compliance with policies
A party's Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party's lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
is independently developed by the receiving party, which independent development can be shown by written evidence.
Subject to clause 11.3 and 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
The obligation set out in clause 11.2 shall not apply to information which the Client has requested Rare to share with any Respondent(s) or otherwise publish or reveal to third parties as part of the Service (please see Clause 4 around Rare's use of Client Materials)
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
The Client acknowledges that details of the Services, and the results of any performance tests of the Service, constitute Rare's Confidential Information.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
Limitation of liability
Except as expressly and specifically provided in this Agreement:
the Client assumes sole responsibility for results obtained from the use of the Service by the Client, and for actions arising from such use. Rare shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Rare by the Client in connection with the Services, or any acts or omissions of Authorised Users, other Client personnel, or any third parties;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Service is provided to the Client on an "as is" basis.
Nothing in this Agreement excludes the liability of Rare:
for death or personal injury caused by Rare's negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 12.1 and clause 12.2:
Rare shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
Rare's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Service Fees paid by the Client to Rare during the 12 months immediately preceding the date on which the claim arose.
Term and termination
This Agreement shall be deemed to commence on the Effective Date and continue in force until the completion of the parties' obligations under this Agreement relating to the Study unless terminated in accordance with the remaining provisions of this clause 13.
Either party may terminate this Agreement forthwith by notice in writing if the other:
commits a material or persistent breach of its obligations which if capable of remedy shall not have been remedied within thirty (30) days of written notice to do so; or
is unable to pay its debts as they fall due or is the subject of a bankruptcy petition or enters into compulsory or voluntary liquidation or compounds with or convenes a meeting of its creditors or has a receiver, manager, administrator or administrative receiver appointed of its assets (or is subject to a similar event or set of circumstances in the country where it principally carries on business) or ceases for any reason to carry on business.
Termination or expiry of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination. Any provision of this Agreement which expressly or by implication is intended to continue to apply on or after termination or expiry shall remain in force.
On termination or expiry of this Agreement for any reason (without prejudice to any other rights or remedies which may be available to the parties) any Service Fees outstanding at the point of termination or expiry shall be paid to Rare in full.
On termination of this Agreement for any reason:
all licences granted under this Agreement (with the exception of the licence granted by Rare to the Client under clause 10.4 provided that the Service Fees have been paid in full) shall immediately terminate and the Client shall immediately cease all use of the Service;
Rare may destroy or otherwise dispose of any of the Client Materials in its possession unless Rare receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Materials. Rare shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Rare in returning or disposing of Client Materials; and
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
Rare shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Rare or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous Agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
Assignment. The Client shall not, without the prior written consent of Rare, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Rare may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as agent for or bind the other.
Third party rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Notices. Any notice required to be given under this Agreement shall be in writing and shall be emailed, delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes. A notice sent by email shall be deemed duly received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).