THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
1. Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
2. Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
3. Commencement Date: has the meaning given in clause 2.2.
4. Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
5. Contract: the contract between Sapio and the Customer for the supply of Services in accordance with these Conditions.
6. Customer: the person or entity who purchases Services from Sapio.
7. Customer Default: has the meaning set out in clause 4.2.
8. Deliverables: the deliverables set out in the Specification.
9. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
10. Order: the Customer’s written acceptance of Sapio’s quotation or proposal for Services (whether by email, statement of work or other document).
11. Sapio: Sapio Research Limited registered in England and Wales with company number 10378863.
12. Services: the services, including the Deliverables, supplied by Sapio to the Customer as set out in the Specification.
13. Specification: the description or specification of the Services provided in writing by Sapio to the Customer (whether by email, in the form of a proposal document or statement of work, or some other form of documentation).
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Sapio issues written acceptance of the Order at which point, and on which date, the Contract shall come into existence or as otherwise agreed with Sapio (Commencement Date).
2.3 Any descriptive matter or marketing materials issued by Sapio are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by Sapio shall not constitute an offer, and is only valid for a period of 90 days from its date of issue.
3. Supply of Services
3.1 Sapio shall use commercially reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.2 Sapio warrants to the Customer that the Services will be provided using reasonable care and skill.
3.3 In providing the Services, Sapio shall:
(a) perform the Services in accordance with good industry practice;
(b) ensure that the Services will conform with the Specification in all material respects;
(c) comply with all applicable laws; and
(d) co-operate with the Customer in all matters relating to the Services.
3.4 Sapio reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Sapio shall notify the Customer in any such event.
4. Customer’s obligations
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with Sapio in all matters relating to the Services;
(c) treat Sapio, its employees, agents, consultants and subcontractors, in a polite and respectful manner at all times;
(d) provide Sapio, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Sapio;
(e) promptly provide Sapio with such information and materials as Sapio may reasonably request in order to supply the Services;
(f) ensure that all information and materials provided to Sapio by or on behalf of the Customer are complete and accurate in all material respects;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start (and disclose the same to Sapio if reasonably requested to do so);
(h) comply with all applicable laws, including health and safety laws; and
(i) comply with any additional obligations as set out in the Specification.
4.2 If the Customer fails to comply with clause 4.1 or if Sapio’s performance of any of its obligations under the Contract is otherwise prevented or delayed by any act or omission of the Customer (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Sapio shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Sapio’s performance of any of its obligations;
(b) Sapio shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Sapio’s failure or delay to perform the Services; and
(c) the Customer shall reimburse Sapio on demand for all reasonable costs or losses sustained or incurred by Sapio arising directly or indirectly from the Customer Default, subject to Sapio confirming such costs and losses to the Customer in writing.
5. Charges and payment
5.1 The Charges for the Services shall be calculated on a fixed price basis, as set out in the Order.
5.2 The Charges shall exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Sapio engages in connection with the Services, provided always that Sapio shall obtain the Customer’s approval before incurring any such expense. Such costs shall be payable by the Customer monthly in arrears, subject to submission of an appropriate invoice.
5.3 Unless otherwise stated in the Specification, Sapio may invoice the Customer for the Charges as follows:
(a) 50% on or at any time following the Commencement Date; and
(b) 50% on or at any time following delivery of the Deliverables to the Customer.
5.4 The Customer shall pay each invoice submitted by Sapio:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Sapio.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Sapio to the Customer, the Customer shall, on receipt of a valid VAT invoice from Sapio, pay to Sapio such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Customer fails to make a payment due to Sapio under the Contract by the due date, then, without limiting Sapio’s remedies under clauses 5.7 and 9:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6(a) will accrue each day at 4% a year above the Bank of England base rate from time to time, but at 4% a year for any period when that base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from the due date until payment; and
(b) Sapio reserves the right to charge a £50 administration fee.
5.7 If Sapio takes any legal or other steps for the recovery of any overdue sums, then the reasonable costs of all such steps shall be payable by the Customer on demand.
5.8 In the event that a query or dispute is raised in good faith on an invoice, the Customer shall only be entitled to withhold such part of the payment as relates to the amount which is in dispute.
5.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law or any withholding of payment in accordance with clause 5.8).
5.10 Where the Customer is acting as agent for a third party end client, it enters into the Contract as principal and will be primarily liable for all payment due under the Contract.
5.11 Sapio reserves the right to review, and if reasonably necessary, increase the Charges payable for the Services in the event of:
(a) any changes to the Services agreed by the parties;
(b) delays resulting from Sapio withholding Services due to the Customer’s failure to make payments when due; or
(c) the Customer’s failure to carry out its responsibilities or obligations under the Contract or to provide assistance or facilities as required under the Contract; or
(d) the Customer requesting that Sapio delay work for any reason.
5.12 Unless Sapio agrees in writing that a different currency will apply, all invoices shall be in pounds sterling.
5.13 If Sapio agrees that the Customer can pay the invoices in another currency, the Customer shall ensure that payment covers the invoice amount in full after the exchange rate conversion. The exchange rate to be applied shall be the exchange rate quoted by the foreign exchange department of Revolut Bank (or such other bank as Sapio may notify to the Customer from time to time) on the day that the Customer pays the invoice. If Sapio agrees to issue its invoices in another currency, the exchange rate to be applied shall be the exchange rate quoted by the foreign exchange department of Revolut Bank (or such other bank as Sapio may notify to the Customer from time to time) on the day that Sapio issues the foreign currency invoice.
5.14 The Customer shall pay all bank charges which Sapio incurs in relation to any currency conversion.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Sapio.
6.2 Sapio grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual licence to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4 The Customer grants Sapio a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Sapio for the term of the Contract for the purpose of providing the Services to the Customer.
7. Data protection
7.1 Each party shall comply with all applicable data protection legislation in relation to the Services.
7.2 In the event that a party requires the other party to process its personal data the parties shall enter into a separate written agreement, setting out all required details (including the nature and duration of the processing, the type(s) of data and the data subjects involved) as well as each party’s obligations in respect of such data.
7.3 Unless otherwise specified in the Specification, the Deliverables shall not contain any personal data. The Customer (either directly or indirectly via a third party) shall not, and shall not attempt to, identify any individual using information contained in the Deliverables or in any other information or materials provided to it by Sapio.
8. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 Nothing in the Contract shall limit or exclude either party’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) wilful default; or
(d) any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, Sapio’s total liability to the Customer shall not exceed an amount equal to 100% of the Charges (net of VAT) paid or payable by the Customer under the Contract in the preceding 12-month period. Sapio’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8.3 This clause 8.3 sets out specific heads of excluded loss and exceptions from them:
(a) Subject to clause 8.1, the types of loss listed in clause 8.3(c) are wholly excluded by the parties, but the specific losses listed in clause 8.3(d) are not excluded.
(b) If any loss falls into one or more of the categories in clause 8.3(c) and is also specified in clause 8.3(d), then it is not excluded.
(c) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
(d) The following specific losses are not excluded:
(i) sums paid by the Customer to Sapio pursuant to the Contract, in respect of any Services not provided in accordance with the Contract; and
(ii) reasonable additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract.
8.4 Sapio has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, all other terms, warranties, guarantees and representations relating to the Services (whether express, implied, oral or written) are, to the fullest extent permitted by law, excluded from the Contract.
8.5 For the avoidance of doubt, Sapio does not make any warranty or guarantee (express or implied) as to the predicted or actual results of any research or questionnaires carried out as part of the Services.
8.6 Unless the Customer notifies Sapio that it intends to make a claim in respect of an event within the notice period, Sapio shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9. Termination
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without affecting any other right or remedy available to it, Sapio may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
(b) in Sapio’s reasonable opinion, association with the Customer is likely to bring Sapio into disrepute; or
(c) the Customer is acquired by, or itself acquires, a competitor of Sapio.
9.3 Without affecting any other right or remedy available to it, either party may terminate the Contract for convenience at any time by giving the other party 14 days’ written notice.
9.4 Without affecting any other right or remedy available to it, Sapio may suspend the supply of Services under the Contract or any other contract between the Customer and Sapio if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or Sapio reasonably believes that the Customer is about to become subject to any of them.
10. Consequences of suspension and termination
10.1 On suspension of the Services or termination of the Contract for any reason:
(a) the Customer shall immediately pay to Sapio all of Sapio’s outstanding unpaid invoices and interest. In respect of Services supplied but for which no invoice has been submitted, Sapio shall submit an invoice in respect of all Services provided, expenses incurred in accordance with clause 5.2 and any applicable VAT to the point that the Services were suspended or terminated, which shall be payable by the Customer immediately on receipt; and
(b) the Customer shall have no right to use any Deliverables until it has made all payments in accordance with clause 10.1(a).
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11. General
11.1 Force majeure. Neither party shall be in breach of the Contract nor otherwise liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.
11.2 Assignment and other dealings.
(a) Subject to clause 11.2(b), neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party.
(b) Sapio may subcontract any but not all of the Services to any one or more third parties. Sapio shall at all times remain liable to the Customer for the performance of any such subcontractors.
11.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, 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 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out the party’s obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) 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 Contract.
11.4 Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.8 Notices.
(a) Any notice given by either party shall be in writing, in English, addressed to the other party at its registered office (if a company) or its principal place of business (in any other case) and shall be delivered personally; or sent by pre-paid first class post; or pre-paid next working day tracked delivery service; or if sent abroad, by an internationally recognised courier service with fees pre-paid.
(b) Provided that the requirements of clause 11.8(a) have been met, a notice shall be deemed to have been received:
(i) if delivered personally, when left at the address referred to in clause 11.8(a);
(ii) if sent by pre-paid first-class post, at 9.00 am on the second Business Day after posting; or
(iii) if sent by next working day tracked delivery service or internationally recognised courier service, at the delivery time recorded by the courier.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.10 Dispute resolution and governing law.
(a) Any dispute between the parties arising out of or in connection with the Contract shall be referred in the first instance to a senior representative of each party for resolution. The nominated representative of each party must have authority to settle the dispute referred to it. The nominated representatives of each party shall meet within 5 Business Days of the dispute being referred to them and shall work together in good faith to resolve such dispute.
(b) Any dispute or claim arising out of or in connection with the Contract, 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. The parties submit to the exclusive jurisdiction of the courts of England and Wales to settle any such dispute or claim.
