1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Bespoke Services: any services other than those ordered by the Customer in the Registration Form which the Supplier provides, or agrees to provide, to the Customer.
Customer: the person, firm or company who purchases Services from the Supplier.
Contract Year: the period of 12 months from the Commencement Date and, if the Customer orders the Services for more than one year, each consecutive period of 12 months thereafter during the period of the agreement.
Data: the non-anonymised replies and personal data of individual students received by the Supplier in response to survey questionnaires sent out by the Customer as part of the Services.
Deliverables: all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including the deliverables specified in the Proposal or otherwise specified in writing by the Supplier, except the Data.
Document: includes, without limitation, in addition to any document in writing, any drawing map, plan, diagram, design, picture or other image, tape, disc, digital device, or other device to record embodying information in any form.
Input Material: all Documents, information and materials provided by the Customer relating to the Services including any information to be provided as specified in the Proposal, the Registration Form or otherwise specified as required by the Supplier.
Intellectual Property Rights: all patents, rights to inventions, utility models and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, competition rights, rights in designs, rights in computer software, database rights, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the agreement including computer programs, data, databases, reports, promotional materials, handbooks and/or guides.
Proposal: a proposal setting out the Bespoke Services to be provided, estimated costs, the timetable and Deliverables.
Services: the services to be provided by the Supplier as described in the Supplier’s promotional materials, guides or the Proposal and ordered by the Customer, including the Bespoke Services.
Supplier: International Graduate Insight Group Limited, a company registered in England under number 05368460, whose place of business is at Redhill Chambers, 2D High Street, Redhill, Surrey, RH1 1RJ.
Trade Marks: the unregistered trade marks consisting of the “i-graduate” logo, “International Student Barometer”, “Student Barometer” and the phrases “the experience counts” and “keeping your finger on the pulse” and any further trade marks that the Supplier may permit, or procure permission for, the Customer to use in respect of the Services by express notice in writing.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Website: the website with URL http://www.i-graduate.org.
1.2 Condition and paragraph headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to writing or written includes faxes and e-mail.
1.6 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.7 Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. APPLICATION OF CONDITIONS
2.1 The Customer's signed Registration Form or purchase order or acceptance of a Proposal for Bespoke Services by the Supplier constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
(a) by the Supplier’s countersignature on the Registration Form or purchase order or accepted Proposal; or
(b) (if earlier) by the Supplier starting to provide the Services,
when a contract for the supply and purchase of those Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern this agreement. These conditions and the Registration Form, or the Supplier’s Proposal, as the case may be, shall together form the agreement.
2.2 Proposals are given by the Supplier on the basis that no agreement shall come into existence except in accordance with condition 2.1. Any Proposal is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3. COMMENCEMENT AND DURATION
3.1 For all Barometers and other continuous survey services, the Services supplied under this agreement shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer's offer in accordance with condition 2.1 (the “Commencement Date”) and:
(a) if the Customer’s order is for Services for one Contract Year, shall expire automatically at the end of the Contract Year; or
(b) if the Customer’s order is for Services for 2 or more Contract Years, shall renew automatically at the end of the first Contract Year and any subsequent Contract Year, as appropriate, and shall expire at the end of the last Contract Year ordered;
unless this agreement is terminated earlier in accordance with condition 12.
3.2 For Bespoke Services, the Services supplied under this agreement shall be provided by the Supplier to the Customer from the Commencement Date until the Services have been provided in full in accordance with the Proposal, unless this agreement is terminated earlier in accordance with condition 12.
4. SUPPLIER'S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to provide the Services and deliver the Deliverables, in accordance in all material respects with the description of the Services provided in writing by the Supplier to the Customer and the Proposal, as applicable. Any target timescales set out in the Proposal or any other correspondence from the Supplier are estimates only and time shall not be of the essence for performance of the Services or delivery of the Deliverables.
5. CUSTOMER'S OBLIGATIONS
5.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services, including complying with the Supplier’s expectations as set out in writing by the Supplier to the Customer or the Proposal, as applicable;
(b) provide to the Supplier, in a timely manner, such Input Material and other information as the Supplier may require and ensure that it is accurate in all material respects;
(c) treat as confidential any user identification code, password or any other piece of information forming part of the Supplier’s security procedures or for use of the Website, and not disclose it to any third party;
(d) comply with the provisions of any terms and conditions for the use of the Website; and
(e) ensure that all persons who access the Website through the Customer’s internet connection are aware of these Conditions and that they comply with them.
5.2 If the Supplier's performance of its obligations under this agreement is prevented or delayed or the quality of the Deliverables degraded by any act or omission of the Customer, its agents, sub-contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay. The Supplier reserves the right to alter target timescales where the Customer obligations have not been met or where a delay arises from causes beyond either the Customer or the Supplier’s control. The delaying party should inform the other when a delay arises.
5.3 Subject to condition 9, the Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct losses, , loss or damage to property and those arising from injury to or death of any person) arising from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this agreement, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
6. CHARGES AND PAYMENT
6.1 The total price for the Services shall be the amount set out in the Registration Form or the Proposal. The total price shall be paid to the Supplier (without deduction or set-off). The Supplier shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate. [Where the Customer orders the Services for 2 or more Contract Years, the Supplier shall invoice the Customer at the beginning of each Contract Year for the charges for the relevant Contract Year as indicated on the Registration Form.] The Supplier shall not accept any cancellations nor make any refunds.
6.2 Any fixed price contained in the Registration Form or the Proposal, as applicable, excludes VAT, which the Supplier shall add to its invoices at the appropriate rate, if applicable.
6.3 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of the date of the invoice, unless otherwise agreed in writing.
6.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of NatWest Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
6.5 Time for payment shall be of the essence of this agreement.
6.6 All sums payable to the Supplier under this agreement shall become due immediately on its termination, despite any other provision. This condition 6.6 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
6.7 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Data, Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition 7.2, the Supplier licenses all such rights (except rights in the Data) to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Supplier terminates the agreement under condition 12, this licence shall automatically terminate. Otherwise, the licence shall survive expiry of the agreement, subject to the provisions of these Conditions which survive termination and subject to the Supplier’s right to terminate the licence upon the occurrence of any of the grounds set out in condition 12.1. More complete access to the Data, the presentation of the Data, the Deliverables and the Pre-existing Materials will be subject to a separate agreement.
7.2 The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer's use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
7.3 The Customer acknowledges and agrees that the Supplier may re-contact respondents of the surveys carried out during the performance of the Services who have given their express consent for the Supplier to do so and the Supplier shall not be required to notify or seek the consent of the Customer.
7.4 The Customer shall not, and shall procure that its employees, agents, sub-contractors and affiliates shall not, at any time use the Data, Deliverables, Pre-Existing Materials or the Services except as permitted under these conditions nor, during the term of this agreement, acquire any interest (in any capacity and whether directly or indirectly, on that person's own behalf, on behalf of any other person or jointly with any other person) in any business which would be in competition with the business of the Supplier or supply, offer to supply or agree to supply any service in competition with the Services. The Customer shall, and shall procure that its employees, agents, sub-contractors and affiliates shall, notify the Supplier in writing of such interest. Breach of this condition 7.4 or breach of the Supplier's Intellectual Property Rights in the Data, Deliverables and the Pre-Existing Materials shall entitle the Supplier to terminate the agreement with immediate effect and conditions 12.2 and 12.3 shall apply.
8. CONFIDENTIALITY AND THE SUPPLIER'S PROPERTY
8.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or sub-contractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
8.2 The Customer shall not use any such information for any purpose other than to perform its obligations under the agreement.
8.3 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
8.4 The Supplier has assured respondents of the surveys carried out during the performance of the Services of the confidentiality of their responses and will endeavour to ensure that no identifying information will be passed to the Customer. In the unfortunate event that the Customer identifies the respondent from the Deliverables, the Customer shall treat such information as confidential and shall comply with the provisions of this condition 8 and condition 10 in respect of such information.
8.5 This condition 8 shall survive termination of this agreement, however arising.
9. LIMITATION OF LIABILITY - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
9.1 This condition 9 set out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party in respect of:
(a) any breach of this agreement;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
9.3 Nothing in these Conditions limits or excludes the liability of either party:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the other party as a result of fraud or fraudulent misrepresentation.
9.4 Subject to condition 9.2 and condition 9.3:
(a) neither party shall be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the parties’ total 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 not exceed £1 million.
10. DATA PROTECTION
10.1 Subject to condition 9, each party shall comply with its obligations under all applicable data protection legislation and regulations. Neither party shall process personal data (a) to support measures or decisions with respect to particular individuals nor (b) in such a way that damage or distress is, or is likely to be, caused to any data subject. Each party shall, at all times during and after the term of this agreement indemnify the other party and keep the other party indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the other party arising from any breach of the indemnifying party’s obligations under this condition.
11.1 Subject to conditions 11.2 and 11.3, the Customer shall not make, nor permit any person to make, any media release, public announcement or public disclosure relating to this agreement or its subject matter or in respect of the Deliverables or comparing the Deliverables of the Customer with results for any other customer of the Supplier, including promotional or marketing material, without the approval of the Supplier in writing prior to release. Breach of this condition shall entitle the Supplier to terminate the agreement with immediate effect as if the breach is not remediable.
11.2 The Customer may make a media release, public announcement or public disclosure announcing results of the Deliverables, without prior consent of the Supplier, provided that no comparison is made with any other organisation, that the date of the result and the appropriate Trade Marks are included in the announcement and that the Supplier is identified as the owner of the data and provided that the Customer includes the words “under licence from International Graduate Insight Group Limited” in close proximity to the Trade Marks.
11.3 The Supplier hereby grants to the Customer the non-exclusive right to use the Trade Marks for the purposes of any media release, public announcement or public disclosure made in full compliance with this condition.
11.4 This condition shall survive termination however arising.
12.1 Without prejudice to any other rights or remedies which the parties may have:
(a) either party may terminate this agreement without liability to the other immediately on giving notice to the other if:
(i) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(ii) the other party has a receiver appointed or passes a resolution for winding up (other than bona fide schemes of solvent restructuring) or a competent court makes an order to the effect that the party shall become subject to an administration order or enters into a voluntary arrangement with its creditors or ceases or threatens to cease to carry on business.
(b) The Supplier may terminate this agreement without liability to the Customer immediately on giving notice to the Customer if the Customer fails to pay any amount due under the agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
12.2 On termination of this agreement for any reason except expiry of the agreement, the Customer shall return all of the Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping.
12.3 On termination or expiry of this agreement:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
(b) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13. FORCE MAJEURE
The Supplier shall have no liability to the Customer 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 strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport 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, epidemic or default of suppliers or sub-contractors.
14.1 The Supplier may, from time to time change the Services, provided that such changes do not materially adversely affect the nature or quality of the Services and, where practicable, it will give the Customer at least 30 days notice of any change.
14.2 The Supplier shall give one months’ notice of any changes or amendments and if the Customer uses the Services after the date of entry into force of the new Conditions (“Revision Date”), then the Customer shall be deemed to have accepted the revised Conditions from the Revision Date.
14.3 For Bespoke Services, the Customer may request a change to the Bespoke Services in writing. The Supplier shall, within 10 days from the date of receipt of such written request for a change, either inform the Customer that the Supplier is not able to comply with such written request, or submit in writing to the Customer:
(a) the price, if any, associated with the change;
(b) a timetable for implementation; and
(c) the impact, if any, of the change on other aspects of this agreement, including the Deliverables;
and the Customer shall, within 10 days from the date of receipt of the Supplier’s submission, approve or reject the change in writing.
14.4 Subject to conditions 14.1 to 14.3, no variation of the agreement or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15.1 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16.1 If any term or provision in this agreement shall in whole or in part be held to any extent to be invalid, illegal or unenforceable by any court or administrative body of competent jurisdiction that term or provision or part-provision shall to that extent be deemed not to form part of this agreement and the legality and enforceability of the remainder of this agreement shall not be affected.
17. ENTIRE AGREEMENT
The Registration Form or the Supplier’s Proposal, as the case may be, and these Conditions constitute the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each of the parties acknowledges and agrees that, in entering into this agreement, it does not rely on, and shall have no right or remedy in respect of, any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement. Nothing in this condition shall limit or exclude any liability for fraud.
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
19. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall operate to, create a partnership or joint venture of any kind between the parties, nor to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. RIGHTS OF THIRD PARTIES
This agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under this agreement shall be in writing, sent for the attention of the person, and to the address or fax number, given in this agreement (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery or by courier service. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery or courier service, 48 hours from the date of posting and, if deemed receipt under this condition 21 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery.
22. GOVERNING LAW AND JURISDICTION
22.1 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.
22.2 The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).