Terms and Conditions of BlueYonder Research Ltd
1.1 “Client" (and “you”, “yours”, “your”) means the person, firm or company that purchases Services from Blue Yonder Research.
1.2 "Codes" means the ESOMAR Code of Conduct and the UK Market Research Society Code of Conduct.
1.3 "Blue Yonder Research" (and “we”, “us”, “our”, “ours”) means Blue Yonder Research Ltd, registered in England and Wales under company number 05124108,whose registered address is at 4325 Park Approach, Thorpe Park, Leeds, West Yorkshire, LS15 8GB.
1.4 “Participant” means a member of the public selected by Blue Yonder Research to participate in the Services provided to the Client;
1.5 "Proposal" means the proposal or “Fieldwork Schedule” provided by Blue Yonder Research to the Client setting out proposed delivery of the Services and including a quotation, as may be amended from time to time in accordance with these terms.
1.6 "Services" means the market research or analysis or consultancy or project management services to be provided by Blue Yonder Research to the Client as set out in the Proposal.
2.1 Contracts for research projects are made between the Client and Blue Yonder Research. The basis of the contract will be a Proposal, which will include a quotation.
2.2 The Client’s acceptance of the Proposal will constitute an offer to purchase the Services in accordance with these terms. Acceptance may be provided in writing, by email or by telephone. Such offer will only be deemed to be accepted when Blue Yonder Research notifies the Client in writing(including by email), at which point (the “Commencement Date”) a contract between the Client and Blue Yonder Research for the supply of the Services in accordance with these terms (the “Contract”) will come into existence.
2.3 Acceptance of the proposal is deemed to include acceptance by the client of these terms of business, which shall not be altered except by written agreement duly signed by an authorised representative of Blue Yonder Research.
2.4 If at any time the client requests that the Proposal is changed (e.g.method, sample size and structure, questionnaire length or content, project timing, etc.), Blue Yonder Research reserves the right to revise the estimation of costs.
2.5 Proposals will be dated and are valid for 30 days from that date. After that time, Blue Yonder Research reserves the right to revise the Proposal.
2.6 All quotations within the Proposal are exclusive of VAT.
2.7 These terms, together with the written Proposal or specification, shall constitute the entire contract between Blue Yonder Research and the Client.
2.8 Any alteration to these terms or the Proposal must be agreed by Blue Yonder Research in writing.
3.1 Blue Yonder Research will supply the Services to the Client in accordance with the Proposal in all material respects. Blue Yonder Research will use all reasonable endeavours to meet any performance dates specified in the Proposal,but any such dates will be estimates only and time will not be of the essence for performance of the Services.
3.2 Blue Yonder Research reserves the right to amend the Proposal or these terms 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 Blue Yonder Research will notify the Client in any such event.
3.3 Blue Yonder Research warrants to the Client that the Services will be provided using reasonable care and skill.
4.1 The Client will:
(a) co-operate with Blue Yonder Research in all matters relating to the Services; and
(b) provide Blue Yonder Research with such information and materials as Blue Yonder Research may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.
4.2 Where the Services require products to be tested through means including(but not limited to) taste, touch or smell the Client will be responsible for taking out suitable product liability insurance (having regard to Blue Yonder Research’s obligations under the Codes) and will indemnify Blue Yonder Research against any liability it incurs in connection with such testing, including (but not limited to) any liability relating to breach of the Codes.
PRICE AND PAYMENTS
5.1 The price for the Services is as set out in the Proposal, as may be amended from time to time in accordance with clause 5.2.
5.2 Blue Yonder Research reserves the right to revise the quotation set out in the Proposal if at any time after the Commencement Date a variation to the Proposal (including but not limited to any change to method, sample size and structure, questionnaire length or content, or project timing) is requested by the Client or is otherwise agreed between Blue Yonder Research and the Client.Where a quotation is revised by Blue Yonder Research as a result of a variation request by the Client, Blue Yonder Research will provide the Client with a written copy of the revised quotation and the variation will be implemented once the Client has confirmed its agreement to the revised quotation in writing.
5.3 Unless otherwise agreed in writing, the costs of production/reproduction and/or delivery/collection of any stimulus materials and/or samples required by Blue Yonder Research to deliver the Services are not included in the quotation set out in the Proposal. Any such costs that are incurred by Blue Yonder Research through delivery of the Services will be charged to the Client at cost, plus a handling fee (typically 15-20%). These costs will appear on the final invoice or on a separate invoice as an additional cost.
5.4 Unless otherwise set out in the Proposal, Blue Yonder Research will invoice the Client in full on completion of the Services OR:
(a) in full on completion of the Services where the price for the Services is less than £5,000; or
(b) for 50% of the price for the Services in advance of the Services being delivered and for the remaining 50% on completion of the Services where the price for the Services is £5,000 or more.]
5.5 The Client will pay (each) invoice:
(a) within 30 days of the date of the invoice; and
(b) in the currency stated on the invoice (unless otherwise agreed in writing),whilst also covering all bank charges pertaining to the transaction,
(c) and time for payment will be of the essence of the Contract.
5.6 Blue Yonder Research reserves the right to charge interest on overdue accounts. This will be on a cumulative daily basis equivalent to 2% per month.
CANCELLATION AND TERMINATION
6.1 Without affecting any other right or remedy available to it, the parties may terminate the Contract at any time by agreement between them.
6.2 If the Services are cancelled or otherwise terminated as described above by the Client and/or Blue Yonder Research, the final payment will be payable immediately and, unless otherwise agreed, will be the costs incurred up until termination. This includes management time and expenses plus any losses incurred by Blue Yonder Research by reason of cancellation or termination.
(a) If the Client decides to cancel a Participant with less than 24 hours notice, prior to the appointment, Blue Yonder Research reserves the right to pay the full incentive, at the Client’s cost.
(b) If the Client decides to cancel a group/IDI/TDI or any other type of recruitment with less than 48 hours notice, full recruitment costs will apply.
6.3 Termination of the Contract will not affect 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 Contract which existed at or before the date of termination.
7.1 Blue Yonder Research reserves the right, where necessary, to sub-contract any part of the specified services to recognised suppliers and subject to the appropriate quality controls.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
8.1 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 Client), including recruiters’ and Participants’ details, are confidential and are owned by Blue Yonder Research. These details shall not be passed on to a third party without prior consent from Blue Yonder Research. The client must agree not to contact any recruiters or Participants not known to them after fieldwork has been completed.
8.2 Notwithstanding clause 8.2, to the extent that personal details relating to any Participants or any other confidential information comes into the possession of the Client or any of its employees and/or representatives, the Client will, and will procure that its employees and/or representatives will,keep such information strictly confidential and not disclose it to any third party without Blue Yonder Research’s prior written consent.
8.3 Unless a Participant was known to the Client prior to the Commencement Date, the Client will not attempt to contact any Participant except where this is necessary for delivery of the Services and has been agreed to in writing by Blue Yonder Research and the relevant Participant.
8.4 Blue Yonder Research reserves the right to destroy all Participant Materials one year after the Services have been completed without the Client’s consent. Participant Materials may be destroyed earlier by written agreement of the parties.
8.5 The Client acknowledges that Blue Yonder Research is bound by the Codes(copies of which can be made available by Blue Yonder Research on request), and agrees not to do anything that may place Blue Yonder Research in breach of these Codes.
8.6 Blue Yonder Research grants to the Client a fully paid-up, worldwide,non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify any deliverables produced by Blue Yonder Research for the Client(excluding materials provided by the Client) in accordance with all relevant restrictions and obligations in the Codes by which Blue Yonder Research is bound in respect of those deliverables for the purpose of receiving and using the Services and such deliverables in its business.
8.7 The Client may sub-license, assign or otherwise transfer the rights granted in clause 8.2, provided always that any sub-licensee, assignee or transferee of those rights is bound by the same restrictions as set out in clause 8.2.
8.8 The Client grants Blue Yonder Research a fully paid-up, non-exclusive,royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Blue Yonder Research for the term of the Contract for the purpose of providing the Services to the Client.
8.9 Clause 8 shall survive the termination or expiry of this Contract.
USE OF PERSONAL DATA
9.1 When acting on a Proposal, Blue Yonder Research is a data controller in respect of any personal data the Client provides to us or to which we have access. There may be circumstances where the Client and Blue Yonder Research are both data controllers. In these cases, we may be joint controllers,independent sole controllers or controllers in common. In particular, if Blue Yonder Research is supplied with personal data relating to other persons by the Client or on its behalf, the Client and Blue Yonder Research may both be data controllers in respect of that data. Where you and we are both data controllers the Client shall be liable for its processing of personal data and Blue Yonder Research shall only be liable for our processing of personal data.
9.2 In respect of personal data for which the Client and Blue Yonder Research are both data controllers, Blue Yonder Research will:
(a) at our own cost and expense, implement appropriate technical, security and organisational measures to protect personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage,alteration or disclosure;
(b) maintain up to date records of our processing activities in relation to that personal data which shall include the categories of processing activities performed, information on cross border data transfers and a general description of security measures implemented in respect of processed data and provide a copy of such records to you upon request;
(c) keep personal data for which the Client and Blue Yonder Research are data controllers separately identifiable from any other personal data;
(d) ensure that only those personnel who need to have access to the personal data are granted access to such personal data and that all of the personnel required to access the personal data:
(i) are reliable, trustworthy, and have been trained in how to handle and process personal data; and
(ii) have been informed of the confidential nature of the personal data and are subject to a duty of confidentiality; and
(iii) comply with the obligations set out in this paragraph 9.2;
(e) co-operate with the Client, having regard to our own obligations, when responding to requests from data subjects to exercise data subject rights under data protection law (including data subject’s rights to access, rectify, erase or object to the processing of personal data) and shall notify you in good time if we receive:
(i) a request from a data subject to access that data subject’s personal data;
(ii) a request from a data subject to exercise any of their other rights under the data protection laws (for example the exercise of the right to rectification, or the right to erasure);
(iii) any communication from the Information Commissioner's Office("ICO") in relation to the processing of personal data; or
(iiii) a complaint from a data subject;
(f) notify the Client without undue delay (having regard to our respective obligations under data protection law) in the event that Blue Yonder Research becomes aware of any breach of the data protection laws and provide the Client without undue delay with such details as it reasonably requires in respect of the same;
(g) notify the Client without undue delay if we become aware of a data breach affecting personal data and, if we are responsible for that data breach, shall(at no additional cost):
(i) promptly provide sufficient information, co-operation, support and analysis to the Client, having regard to its notification and breach reporting obligations to the ICO and/or inform data subject under the data protection laws;
(ii) provide the Client with a detailed description of the nature of the data breach, the identity of the data subjects and affected person(s) and the risk of harm to data subjects;
(iii) provide full cooperation and assistance to the Client in respect of its efforts to investigate, remediate, and mitigate the effects of any data breach;and
(iiii) comply with Blue Yonder Research’s own notification obligations to individuals or the ICO and inform the Client in the event that we notify either the ICO or a data subject of a data breach;
(h) provide reasonable assistance to the Client, on an annual basis, if you wish to assess our compliance with data protection law;
(i) provide reasonable assistance to the Client with any data privacy impact assessments, and prior consultations with the ICO, in relation to the processing of personal data by Blue Yonder Research, taking into account the nature of the processing and information available to us; and
(j) co-operate with the ICO in the performance of its obligations.
9.3 In very limited circumstances Blue Yonder Research may act solely as a data processor, where we are not making any decisions about the data we process, who to collect it form or what purpose to use it for. In those very limited circumstances (where we are not a controller) we will:
(a) comply with the obligations in paragraph 9.2;
(b) process personal data only:
(i) in accordance with the Client’s written instructions;
(ii) in accordance with data protection law;
(iii) for the purpose of performing our obligations to the Client;
(c) not otherwise modify, amend, remove or alter the contents of the personal data or disclose or permit the disclosure of any of the personal data to any third party without the Client’s prior written authorisation;
(d) unless otherwise required by data protection law, return or delete, at the Client’s sole discretion, all personal data upon the termination of the processing activities, and promptly provide the Client with confirmation in writing that we have done so; and
(e) permit without charge, on an annual basis, and / or where the Client becomes aware of a data breach or alleged breach of the data protection law,reasonable access by it to all records and any other information howsoever held by Blue Yonder Research in respect of our relevant services to the Client for the purposes of reviewing compliance with data protection law.
9.4 In whichever capacity Blue Yonder Research are acting (controller or processor) we will inform the Client if we believe that the performance of the Client’s instructions would cause us to breach data protection law. Where Blue Yonder Research and the Client are joint data controllers the Client agrees to comply with the provisions of paragraph 9.2 above in its own right.
9.5 Clause 9 will survive termination or expiry of this Contract
10.1 In circumstances where the specified services require products to be tested (e.g. taste, touch, smell, etc.) the Client would be responsible for taking out suitable product liability, insurance and indemnify Blue Yonder Research against any claim from adverse effects.
11.1 Blue Yonder Research will endeavour to complete any project in accordance with the estimated timings set out in the Proposal, but the Client agrees that Blue Yonder Research shall not be liable for any damage, loss or expense whatsoever arising out of any failure by the Client to provide information or materials when requested or from any delay caused by factors outside the direct control of Blue Yonder Research (such as, without limitation, postal or other communication delays, industrial disputes, fire or accident or natural catastrophe).
LIMITATION OF LIABILITY
12.1 Nothing in the Contract will limit or exclude Blue Yonder Research's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
12.2 Subject to clause 12.1, Blue Yonder Research will not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
12.3 Subject to clause 12.1, Blue Yonder Research's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract will be limited to 50% of the total sum payable by the Client under the Contract.
12.4 Clause 12 will survive termination or expiry of this Contract.
13.1 Neither party will be in breach of the Contract nor 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.
ASSIGNMENT AND OTHER DEALINGS
14.1 The Supplier may at any time assign, subcontract, delegate, or deal in any other manner with any or all of its rights and obligations under the Contract.
14.2 The Client will not assign, subcontract, delegate, or deal in any other manner with any of its rights and obligations under the Contract.
15.1 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.
16.1 Except as set out in these terms, no variation of the Contract will be effective unless it is in writing and signed by the parties.
THIRD PARTY RIGHTS
17.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
GOVERNING LAW AND JURISDICTION
18.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by, and construed in accordance with the law of England and Wales, and each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle the same.
These terms and conditions were last reviewed in November 2019.