Terms and Conditions of Sale

Definitions

In this Contract:

‘Client’ means the person, firm or company for whom the Service is provided.

‘Commencement Date’ means the date the contract shall come into existence.

‘Company’ means Create Clarity Ltd (t/a Create Clarity Consulting), registered office: Ferneberga House, Alexandra Rd, Farnborough GU14 6DQ.

‘Conditions’ means these terms and conditions, as amended from time to time in accordance with our Variation clause.

‘Contract’ means the contract between the parties constituted by the Proposal, the Client’s Order, the written acceptance and these Terms and Conditions.

‘Data Protection Legislation’ means all applicable data protection and privacy legislation in force from time to time in the UK, including the retained EU law version of the Data Protection Regulation ((EU) 2016/679).

‘Delivery Date’ means the date specified as such in the Proposal or as otherwise agreed between the Company and Client for the delivery of Information as may be extended from time to time pursuant to the provisions hereunder.

‘Duration’ means the period of time specified in the Proposal during which the work entailed in the Service prior to the final delivery of Information is carried out and completed.

‘Information’ means the information obtained pursuant to the provision of Service as set out in the Proposal and includes reports, presentations, data in tables or on disk, progress reports, minutes and any other written or computer material.

‘Know-how’ means all drawings, specifications, models, formulae, concepts, techniques, processes, methods, proprietary information, know-how and other data developed, owned or controlled by the Company and used by it to obtain the Information, including, without limitation any such data set out in the Proposal.

‘Limit of Liability’ means the approved maximum cost for the Service as specified in the Proposal.

‘Order’ means the Client’s order for Services as set out in the Client’s written purchase order or booking.

‘Proposal’ means the document submitted to the which sets out the services to be provided, the price of billing rates, duration of work entailed in the Service, professional staff who conduct the work entailed in the Service, arrangements for management of the Service, the Information to be provided and the Delivery Date as may be amended from time to time by agreement in writing between the parties.

‘Service’ means the provision by the Company to the Client of research, consultancy and Information as set out in the Proposal.

‘Price’ means the price for the Service as set out in the Proposal.

Basis of Contract

The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.

The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 28 business days from its date of issue.

Price

The Price applies only to the Service to be provided as set out in the Proposal.

The Price is exclusive of VAT, which will be added to all invoices at the appropriate prevailing rate.

The Price is fixed for the Duration. If commencement of the Service is delayed or completion of the Service during the Duration is prevented by reason of any act or omission of the Client (including the Company withholding provision of any part of the Service due to a default of the Client) or for any other reason beyond the reasonable control of the Company, the Company reserves the right to change the Price and/or the billing schedule.

The Company shall be entitled to increase the Price for any additional work requested by the Client, including any additional reports or presentations.

The provision by the Client of inaccurate information may result in an increase in the fees being payable.

If work is undertaken for overseas Clients, our normal practice is that they will be invoiced in sterling and the remittance will be made in sterling.

Where no fixed price is agreed, the Client will be charged for professional time, direct costs and expenses as set out in the Proposal.

Terms of Payment & Billing Schedule

Unless otherwise agreed and set out in the Proposal or Order, the Company shall invoice the Client 70% of the charges on the Commencement Date and 30% on the Delivery Date.

Invoices in respect of the Service are payable by the Client within 30 days of the date of invoice.

The Company reserves the right to charge interest at a rate (after as well as before judgment) of 3% per annum above the base rate of the Bank of England, on all monies overdue from and including the due date until settlement in full. Such interest shall accrue daily until payment in full.

If the Client fails to make punctual payments of any monies due under any agreement between the Company and the Client, the Company may without prejudice to any other rights to which it may be entitled withhold the provision of Service and/or Information until the total indebtedness to the Company including all accrued interest has been discharged, or terminate the Contract.

Assignment

The Client shall not assign, transfer, delegate or otherwise deal with all or any of its rights and obligations under the Contract without the Company’s prior written consent.

The Company shall be entitled to assign all or any of its rights and obligations under the contract to any person.

Sub-Contracting

The Company reserves the right to sub-contract all or any part of the Service with the prior agreement of the Client.

Third Parties

If the Client requires the Company to liaise with a named third party or parties on any part or all of the Service no warranty can be given by the Company as to the quality or accuracy of such parts of the Service, and the Client shall procure that any such third party gives to the Company an undertaking to keep all Know-how, which comes into its possession confidential, in terms reasonably acceptable to the Company. 

Carrying out the Service & Quality of Service

Supply of Services

The Company shall supply the Services to the Client in accordance with the Proposal in all material respects.

The Company shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.

Client’s Products

In the event that the Company shall be commissioned to conduct a survey requiring interviewees to examine or use any material or products (collectively ‘Products’), the Client shall indemnify and keep indemnified the Company against any claims or actions brought against it by any interviewee or other third party in connection with the Products, including but not limited to claims relating to the description, presentation or use of the Products.

Professional Staff

The Company reserves the right to change professional staff nominated in the Proposal to provide the Service to the Client but staff will be substituted at the appropriate level and calibre.

Quality of Information

The Company shall use all reasonable endeavours to ensure the accuracy of the Information, but no warranty is given as to the accuracy of any data provided by interviewees or informants or of any Information based on such data.

Copyright & Other Rights

Copyright

The copyright and intellectual property rights in the Information shall be and shall remain owned by the Client.

Ownership of Information

The Information, in whatever form, shall at all times remain the property of the Client.

Know-how

Rights in the Know-how shall be and remain vested in the Company.

Use of Third-Party Copyright Material

The Company shall be responsible for obtaining any and all authorities from the copyright holder for any material to be included in the Information for which the Company or the Client are not beneficial owners of the copyright.

In the event that fees and royalties for such copyrighted material are payable, such fees and royalties shall be payable by the Client whose prior agreement will be obtained before the relevant material is used.

The Client shall indemnify and keep indemnified the Company against any claims or demands made in respect of any alleged infringement of any copyright, patent or other intellectual property right of any third party in respect of any material supplied by the Client to the Company in relation to the Contract.

Publication

In the event that the Client wishes to publish all or any part of the Information, the Client must notify the Company of its intention to publish and must acknowledge the Company as the source of the published material. The Company reserves the right to approve the final draft before publication.

Confidentiality

All of the Know-how is confidential to the Company. To the extent that the Know-how is given to the Client, the Client undertakes to take all reasonable precautions to maintain the confidentiality of such Know-how and not to allow access to the Know-how for clients of theirs other than to:

  • those of the Client’s employees who have reasonable need to access

  • professional advisers to the Client, but only on the understanding that such professional advisers do not pass on or use any of the Know-how for clients of theirs other than the Client

  • third parties named by the Client with whom the Company is to liaise pursuant to the Contract and in the event of disclosure to such persons, the Client shall procure that such persons maintain the confidentiality of such Know-how.

Each party shall hold in strict confidence all confidential information and material relating to the other, including Know-how, Information and the fact that the Client has commissioned the Service, unless the information or material can be shown to be in the public domain or the other party has approved any announcement or disclosure.

The Client warrants that no breach of confidentiality shall occur through any supply by the Client of the Client’s data to the Company and shall indemnify the Company from any such claims.

The names of individual informants are strictly confidential and will not be revealed to the Client or any third party unless the prior agreement of informants has been obtained.

Data Protection

Where personal data (defined under Data Protection Legislation) is provided by the Client, the parties acknowledge that for the purposes of Data Protection Legislation, the client is the controller and the Company is the processor.

 

In relation to any personal data processed in connection with the performance of its obligations under the contract, the Company will:

  • ensure that it has in place appropriate technical and organisational measures to ensure the security of the personal data;

  • guard against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data, as required under the Seventh Data Protection Principle in Schedule 1 to the DPA;

  • provide the Client with such information as it may reasonably require to satisfy it that the Company is complying with its obligations under the Data Protection Legislation;

  • promptly notify the Client of any breach of the security measures referred to;

  • ensure that it does not knowingly or negligently do anything which places or is likely to place the Client in breach of its obligations under the Data Protection Legislation; and

  • comply with all reasonable directions or requests from the Client regarding any data that it processes on the Client’s behalf.

Diversity and Equality

The Parties shall not unlawfully discriminate within the meaning and scope of the provisions of the Equality Act 2010 or any statutory modification or re-enactment of that Act or analogous legislation which has been, or may be, enacted from time to time relating to discrimination in employment or discrimination in the delivery of public services.

Sustainability

The Company has an established strategic commitment to sustainability in all its operations.

Modern Slavery and Human Trafficking

The Company complies with the provisions of the Modern Slavery Act 2015 and requires all of its suppliers to ensure that they comply.

Force Majeure

Notwithstanding anything contained in this Contract if total or partial performance hereof is delayed or rendered impossible for the Company by virtue of any reason whatsoever beyond its reasonable control (including but not limited to industrial disputes, civil commotion, fire, flood, earthquake, explosion, decision of any court or other judicial body of competent jurisdiction, unavailability of materials, equipment, transportation, power or other commodity, actions of governments or other prevailing authorities or defaults of third parties) then such non-performance will not be deemed to constitute a breach by the Company of this Contract and it shall not be liable for any loss or damage which the Client may suffer as a result.

Non-Solicitation

The Company and the Client undertake with each other that during the period commencing on the date of the Proposal and ending six months after the Delivery Date, neither party shall canvass or solicit for direct or indirect employment, agency or consultancy any personnel of the other party who is such at or was during the immediately preceding six months prior to the relevant time, or proceed with any approach made by or on behalf of such personnel, unless the prior consent of the employing or engaging party is obtained.

Limitation of Liability

The Company accepts liability as expressly provided in this Contract, but shall have no other obligation, duty or liability whatsoever in contract, tort or otherwise to the Client. The Company shall not be liable to the Client under this Contract in contract, tort or otherwise for any loss of revenue, business contract anticipated saving, or profits or for any other indirect or consequential loss whatsoever.

Nothing in this Contract shall exclude or restrict the Company’s liability for death or personal injury resulting from its negligence or of its employees while acting in the course of their employment.

The Company’s total liability in contract, tort or otherwise arising out of or in connection with the performance of its obligation under this Contract shall be limited to the Price.

Variation

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Waivers

The rights of each party shall not be prejudiced or restricted by the indulgence or forbearance extended to the other party and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.

Notices

Any notice under this Contract shall be in writing and shall be deemed to have been duly served if left at or sent by first-class post to the address of the party to be served at its address stated herein or to such other address or number of which notice has previously been given by the party to be served and will deemed to have been served when left or at the expiration of two business days (if sent by first-class post) after the same was despatched to the proper address.

Termination/Cancellation

In the event that the Client terminates the Contract (or the Company terminates the Contract pursuant to the terms hereof) prior to the completion of Service as set out in the Proposal, the Company reserves the right without prejudice to any other rights to which it may be entitled to charge the Client a proportion of the total Contract price to reflect the work done, together with all reasonable losses and expenses suffered by the Company by reason of such termination. A fee of up to 10% of the outstanding Price for the Service may also be charged.

The consent of the Company to cancellation in no way prejudices the Company’s right to recover from the Client full compensation.

Either party may terminate the Contract immediately by written notice to the other in the event that:

(a)   the other party shall be in material breach of the Contract (howsoever caused) and (if the breach is capable of remedy) after the party not in breach has served notice upon the other party requiring remedy of the breach and the other party shall have failed to remedy such breach within 30 days; or

(b)   the other party shall be the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or any of its assets are subject to any form of seizure, or (being a company) goes into voluntary or compulsory liquidation or a receiver or administrative receiver is appointed in respect of any of its assets.

Termination or expiration of the Contract will not affect the rights or obligations of either party which have accrued prior to such termination or expiration.

Governing Law

This Contract shall be governed and construed in accordance with English Law. The parties to the Contract shall submit to the jurisdiction of the English courts.

 

December 2022