Consultancy terms of service

These Terms of Service, together with the terms of any written engagement letter or other proposal in any form incorporating or referring to these Terms of Service (a “Proposal”) set out the terms on which Flying Fish Research will provide services to the person to whom the Proposal is addressed (“you”). Please ensure that you have read and understand these Terms of Service.
1. Interpretation
1.1 Definitions. In these Terms of Service, the following definitions apply:
Agreement: the agreement between us and you for the supply of Services in accordance with these Terms of Service, comprising the Proposal, these Terms of Service and any Proposal and any Statement of Work agreed between the parties from time to time;
Data: means, when we conduct a research study for you in the course of the Services, the participant response data in relation to that study;
Deliverables: all documents, products and materials developed by us as part of or in relation to the Services in any form or media and provided to you;
Fees: the fees payable by you for the supply of the Services in accordance with clause 4;
Services: the services to be provided by us as set out in the Proposal; and
Statement of Work: any statement of work agreed between the parties in accordance with clause 2.2.
“We” or “us” means Flying Fish Research Ltd, a company registered in the United Kingdom under company number 09957647 with its registered office at C/O OXFORD INNOVATION LIMITED BUXTON COURT, 3 WEST WAY, OXFORD, UNITED KINGDOM, OX2 0JB.
1.2 In these Terms of Service:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.3 a reference to writing or written includes e-mails.
1.3 In the event of any conflict or inconsistency between these Terms of Service, the Proposal and/or any Statement of Work, the order of priority shall be:
1.3.1 the Statement of Work (highest priority);
1.3.2 the Proposal; and
1.3.3 these Terms of Service (lowest priority).
2. Appointment and Supply of Services
2.1 By accepting our Proposal, you agree to pay us for the Services in accordance with the Agreement. These Terms of Service apply to the Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Services are described in the Proposal and such Statements of Work as we may agree with you from time to time. Statements of Work will be agreed in writing but otherwise do not have any prescribed form and may be agreed in correspondence. The Proposal and any applicable Statements of Work will set out the details of the Services to be provided by us, including a description of those Services, times and places for performance and fees.
2.3 We shall use reasonable endeavours to manage and complete the Services in accordance, in all material respects, with the Agreement.
2.4 You acknowledge that where Deliverables have been approved by you, we shall be entitled to rely on the suitability of those Deliverables for the performance of the remainder of the Services and shall have no liability for any defects in subsequent Services or Deliverables to the extent that such Services or Deliverables are derived from Deliverables approved by you.
2.5 We shall use reasonable endeavours to meet the performance dates specified in the Agreement, but any such dates shall be estimates only and time for performance shall not be of the essence of the Agreement.
2.6 The Services may comprise the conduct of research studies online. You acknowledge and accept that we are 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 that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2.7 We alone will be liable to you for providing the Services, and accordingly we alone will be liable to you for any wrongful acts or omissions of any individual who is a member or employee of, or a consultant to, us ("Individual") in the course of their acting for us. No Individual assumes any personal responsibility to you and, accordingly, no Individual shall owe you any personal duty of care nor be under any liability to you whatsoever. You agree that you will not bring any claim, whether in contract, tort, under statute or otherwise, against any Individual.
3. Your Obligations
3.1 You shall:
3.1.1 co-operate with us in all matters relating to the Services;
3.1.2 ensure that the scope of work in any Proposal or Statement of Work is complete and accurately reflects your requirements; and
3.1.3 provide, in a timely manner, such, data, information and facilities as we may reasonable request in order to provide the Services.
3.2 You warrant that all information, data and materials provided by you to us will be, to the best of your knowledge, lawful, accurate and complete in all material respects. You warrant that you are entitled to provide the such information, data and materials to us without recourse to any third party and that our use of it for the purposes of the Agreement will not infringe the rights of any third party. You will indemnify us indemnify and hold us harmless at your own expense from and against any and all damages, losses, liabilities or costs suffered or incurred by us (including without limitation legal expenses) as a result of your breach of any warranty in this clause 3.2.
3.3 If our performance in relation to the Services is prevented or delayed by any act or omission of yours, or arises from a failure by you to perform any of your obligations as set out in the Agreement (‘Client Default’), then:
3.3.1 we shall without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy the Client Default, and to rely on the Client Default to relieve us from the performance of any of our obligations to the extent the Client Default prevents or delays such performance; and
3.3.2 you shall reimburse us on written demand for any costs or losses sustained or incurred by us, arising directly or indirectly from the Client Default.
4. Fees And Payment
4.1 The Fees for the Services shall be set out in the Proposal or Statement of Work. You shall pay the cost of all hotel, subsistence, travelling, data acquisition and any other ancillary expenses reasonably incurred by us in connection with the provision of the Services, and the cost of any materials or services reasonably and properly provided by third parties required by us for the supply of the Services.
4.2 We shall invoice you monthly in arrears for our charges or as otherwise agreed between the parties.
4.3 All invoices rendered are due and payable within 30 days of the date of invoice. You shall inform us in writing of any claim or dispute relating to an invoice within 14 days of receipt of the relevant invoice. You shall pay all amounts due under the Agreement in full without any deduction, set-off, counterclaim or withholding except as required by law.
4.4 Without prejudice to any other right or remedy, if you fail to pay us on the due date we reserve the right to:
4.4.1 charge you interest on the overdue amount at the rate provided by the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount; and
4.4.2 suspend all Services until payment has been made in full.
4.5 All amounts payable by you are exclusive of amounts in respect of VAT, which you will pay where applicable.
4.6 We may, without prejudice to any other rights we may have, set off any liability you have to us against any liability we have to you.
5. Intellectual Property Rights
5.1 As between the parties:
5.1.1 all intellectual property rights in the Data shall be owned by you. We hereby assign and agree to assign all such rights to you; and
5.1.2 all intellectual property rights in all other Deliverables shall be owned by us (except to the extent they are comprised in materials provide to us by you). Nothing in the Agreement shall operate to assign or grant to you any rights in any other Deliverables except as set out in this clause 5.
5.2 You hereby grant to us a worldwide, non-exclusive, royalty-free licence to use the Data:
5.2.1 for our internal research and development purposes; and
5.2.2 if you make the Data public, for any other purposes.
5.3 We hereby grant to you a worldwide, non-exclusive, royalty-free licence under our rights in the Deliverables solely to the extent necessary for you to use the Deliverables for your internal business purposes, provided that you shall comply with all applicable laws and regulations in respect of your use of the Deliverables.
5.4 You acknowledge and agree that any Deliverables provided by us to you as part of the Services are provided for your benefit and you shall not disclose, publish or disseminate such Deliverables to any third party without our prior written consent. In the event that such consent is given, you shall not disclose, publish or disseminate any report provided by us, or any related materials, without publishing the full reference of such report.
6. Liability
6.1 Nothing in the Agreement excludes our liability:
6.1.1 for death or personal injury caused by our negligence;
6.1.2 resulting from fraud or fraudulent misrepresentation made by us; or
6.1.3 for any other matter for which liability may not lawfully be limited or excluded.
6.2 Subject to clause 6.1:
6.2.1 we shall not be liable for:
a) any loss of profits, loss of business, loss of agreements or contracts, loss of anticipated savings or depletion of goodwill (in each case whether direct or indirect); or
b) any special, indirect or consequential loss, costs, damages, charges or expenses howsoever arising; and
6.2.2 our total aggregate liability in contract, tort (including negligence or breach of statutory duty), indemnity, misrepresentation, restitution or otherwise for any other damages arising in connection with the performance or contemplated performance of the Agreement shall be limited to the value of the Fees paid for the Services (excluding expenses, materials and disbursements) during the six months preceding the date on which the event or occurrence giving rise to liability occurred.
6.3 Except as specifically stated in the Agreement, all warranties, conditions and other terms implied by statute or common law, custom, trade usage, course of dealing or otherwise, in connection with our provision of the Services, are excluded to the fullest extent permitted by law.
6.4 The Services are provided solely for the benefit of you, as our client. No other person may use or rely on the Services. You will indemnify us indemnify and hold us harmless at your own expense from and against any and all damages, losses, liabilities or costs suffered or incurred by us (including without limitation legal expenses) as a result of any third party using or relying on the Services, unless we have entered into a separate letter of reliance with that third party on terms which are acceptable to us.
7. Confidentiality
7.1 Each party shall keep in strict confidence all information of a confidential or personal nature which has been disclosed by the other, or which may otherwise be obtained. Each party shall only disclose such confidential information of the other party to their employees who need to know it for the purpose of the Agreement.
7.2 You acknowledge and agree that any Deliverables provided by us to you as part of the Services are provided for your benefit and you shall not disclose, publish or disseminate such Deliverables to any third party without our prior written consent.
8. Termination
8.1 Without limiting our other rights or remedies, we may terminate the Agreement by giving you thirty (30) days’ written notice.
8.2 Without limiting our other rights or remedies, we may terminate the Agreement with immediate effect by giving written notice to you if:
8.2.1 you commit a material breach of any term of the Agreement and (if such a breach is remediable) fail to remedy that breach within fourteen (14) days of receipt of notice in writing to do so;
8.2.2 you repeatedly breach any of the terms of the Agreement; or
8.2.3 you become insolvent or bankrupt, cease to trade or appear to us to be likely to do any of these things.
8.3 Termination of the Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses 1, 5, 6, 7, 8.3 and 9 shall survive termination of the Agreement, however arising.
9. General
9.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure result from events, circumstances or causes beyond its reasonable control.
9.2 You may not assign, transfer, subcontract or deal in any other manner with any or all of your rights or obligations under the Agreement.
9.3 The Agreement constitutes a contract for the provision of services and not a contract of employment.
9.4 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and addressed to the receiving party at such address or contact details as may have been provided by that party from time to time for contact purposes.
9.5 If any provision or part-provision of the Agreement 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. Neither case shall affect the validity and enforceability of the rest of the Agreement.
9.6 A waiver of any right or remedy under the Agreement or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No single or partial exercise of any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
9.7 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other.
9.8 A person who is not a party to the Agreement shall not have any rights to enforce its terms.
9.9 Except as set out in these Terms of Service, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by us.
9.10 The 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 and subject to the exclusive jurisdiction of the courts of England and Wales.
9.11 These Terms of Service are drafted in the English language. If they are translated into any other language, the English language version shall prevail.