DeHavilland - Research Terms of Business
These Digital Services Terms of Business (“Terms”) provide the terms and conditions which will apply to everything we supply to you.
1. Contract Formation
1.1 When the parties agree terms for us to provide Services and/or Deliverables to you, we will capture those terms in writing (an “Order Form”).
Whichever is earlier of you signing an Order Form, completing an online registration form and clicking “accept” or similar assent where applicable, is your offer to purchase the Services and/or Deliverables from us on these Terms (an “Offer”).
1.2 Our signing of an Order Form, sending of a confirmation email or supplying Services and/or Deliverables, (which includes any necessary preparatory work), to you in accordance with the Order Form is acceptance of your Offer (“Acceptance”) and creates a binding contract consisting of the Order Form, these Terms and any relevant Module Terms (a “Contract”).
1.3 No other terms and conditions, (including, without limitation, your own terms, the pre-printed terms on the back of any PO, or those implied), will apply to a Contract unless we have agreed in writing.
1.4 You and we may in future agree terms on which we will provide additional Services and/or Deliverables to you. We will capture any such terms in an additional order form. We may agree that the General Provisions of these Terms will apply to the contract created pursuant to such additional order form.
2. Term and Termination
2.1 A Contract starts on the Start Date specified in the Order Form (the “Start Date”) and will continue until the earlier of:
2.1.1 the specific end date included in the Order Form (if any);
2.1.2 termination by notice in accordance with any specific provisions of the Order Form (if any); or
2.1.3 termination in accordance with these Terms.
2.2 Neither party is entitled to terminate, delay, suspend or vary a Contract other than in accordance with these Terms.
2.3 A party may immediately terminate a Contract by giving the other party written notice if the other party materially or repeatedly breaches the terms of that Contract, and, (where the breach(es) are capable of remedy), fails to remedy such breach(es) within 30 days of receiving written notice requesting remedy of the breach(es).
2.4 A party may immediately terminate a Contract if the other party is subject to an Insolvency Event.
3. Our Provision of Services and warranties
3.1 We will provide the Services and Deliverables to you in accordance with this Contract. Additional terms applicable to our provision and your receipt of the Services and Deliverables are set out in the Service-Specific Provisions section of this Contract.
3.2 We warrant that:
3.2.1 we will use reasonable skill and care in providing the Services and Deliverables;
3.2.2 the Services and Deliverables will conform to any applicable industry standard;
3.2.3 the Services and Deliverables will comply with any applicable law;
3.2.4 we will meet or exceed any service levels in the Order Form; and
3.2.5 the Services and Deliverables will conform with any specification in the Order Form (a “Specification”).
4. Fees and Payment
4.1 Unless otherwise agreed in writing as part of a Contract, we may invoice you for Services and Deliverables in full and in advance.
4.2 You must pay each undisputed invoice:
4.2.1 by the date agreed in the Contract; or
4.2.2 if no such date has been agreed, within 30 days of the date of the invoice.
4.3 You are not entitled to set-off any amount we owe you against any amount you owe us.
4.4 A party may charge the other interest on any late payments. Interest accrues each day from the original due date for payment until the actual date the overdue amount is paid at a rate equal to the lesser of 1.0% per month and maximum rate permitted by applicable law.
4.5 You must reimburse us for any reasonable costs and expenses we incur in recovering any late payments from you. On your written request we will provide evidence of such costs and/or expenses.
4.6 We may suspend the provision of any Services or access to any Deliverables if you owe us anything, from 14 days of the date the debt became overdue.
4.7 On termination of a Contract anything you owe us in relation to the Contract will become due immediately. We may recover from you any costs we incur in collecting overdue monies from you.
4.8 Amounts payable by you in relation to a Contract are exclusive of VAT, sales, use and any similar taxes unless expressly agreed in writing as part of the Contract. If you do not pay such taxes you will be responsible for their payment to relevant authorities. We reserve the right to collect taxes and our reasonable costs of collection from you at any time, except with respect to any taxes based on our net income. In certain jurisdictions, we may be required to collect and remit sales tax in connection with your purchase of Services and Deliverables. Any such taxes will be added to the fees and reflected on your invoice.
4.9 Following the first anniversary of the Start Date, but not more than once in each year of a Contract, we may automatically increase any fees by an amount not exceeding the lower of (i) the percentage increase in the Applicable Price Index in the preceding year plus 5% and (ii) the maximum amount permitted by law.
5. Incorporation of Website Terms
6. Intellectual property
6.1 All Intellectual Property Rights in anything we supply are our property or the property of our third party licensors, and will not transfer to you by Contract.
6.2 We grant you a non-transferable, non-exclusive, non-assignable, revocable, world-wide, royalty free limited license, without the right of sub-license, to access and use the Services and Deliverables for your own internal purposes during the term of the Contract.
6.3 Any rights not expressly granted herein are reserved by us. To the extent that you acquire any right, title, or interest in or to any Ascential Property (other than with respect to such limited license), you hereby assign and convey all such right, title and interest therein to us.
6.4 We acknowledge that the Customer Materials are your property and that you own all Intellectual Property Rights in and to the same.
6.5 You agree that we (including our Affiliates) may freely use any data (including the Customer Materials) which we learn, acquire or obtain in connection with the performance of a Contract to improve the quality of our services and deliverables.
6.6 We indemnify you against any loss, damages or reasonable costs you incur in connection with claims, demands, suits, or proceedings made or brought against you by a third party claiming that the Deliverables infringe the Intellectual Property Rights of a third party (a "Claim"); provided, however, that we will not have any liability to indemnify you for a Claim to the extent the alleged infringement arises from: (i) changes to the Deliverables made at your specific written direction; (ii) your failure to use new or corrected versions of the Deliverables provided by us where you are notified that use of such new or corrected version is necessary to avoid infringement; (iii) the modification of the Deliverables by you or any third-party on your behalf other than as expressly contemplated by the Contract without our written consent; or, (iv) combination of the Deliverables with systems, materials or software other than as contemplated by the Contract.
6.7 You must:
6.7.1 immediately give us written notice of a Claim (provided that your failure to so notify will not relieve us of our indemnification obligations hereunder except, and only to the extent, that we are prejudiced thereby);
6.7.2 give us full control of the defense and settlement of the Claim (provided that (a) you may participate in the defense at your own expense and (b) we may not settle or defend any Claim unless we unconditionally release you from all liability in relation to that Claim); and
6.7.3 provide us with all reasonable assistance in relation to the Claim at our expense.
6.8 If we believe that a Claim could prevent you from receiving or using all or any part of the relevant Services or Deliverables, we may:
6.8.1 procure the right for you to make continued use of the relevant Services and Deliverables;
6.8.2 replace or modify the Deliverables so that they become non-infringing, as the case may be; or
6.8.3 terminate the relevant Deliverables immediately on written notice to you, and refund to you any pre-payment in relation to such cancelled Deliverables.
6.9 You indemnify us against any loss, damage or reasonable costs we incur in connection with claims made or brought against us by a third party alleging that any Customer Materials infringe the Intellectual Property Rights of the third party. We must:
6.9.1 promptly give you written notice of the claim (provided, that our failure to so notify will not relieve you of your indemnification obligations hereunder except, and only to the extent, that you are prejudiced thereby);
6.9.2 give you full control of the defense and settlement of the claim (provided that (a) we may participate in the defense at our own expense and (b) you may not settle or defend the claim unless you unconditionally release us from all liability in relation to the claim); and
6.9.3 provide you with all reasonable assistance in relation to the claim at your expense.
7. Delivery and your obligation to enable our performance
7.1 You must provide us with such:
7.1.1 access to premises and facilities; and
7.1.2 information, instructions and materials
as we require from time to time to enable us to perform a Contract.
7.2 You agree that to the extent that you cause failure or delay to our performance of any obligation under a Contract, we will not be in breach, nor liable to you for any related loss.
Each party must hold sufficient insurance to cover its potential liabilities under the Contract. This includes (without limitation) any insurance required by applicable law or specified on the Order Form.
9. Compliance with applicable laws including those relating to data privacy
Both parties must comply with all applicable laws in connection with the provision and use of the Services and Deliverables, including but not limited to those related to data privacy and personal data.
10. Anti-Bribery and Sanctions
10.1 Each party warrants that it will:
10.1.1 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption;
10.1.2 put in place, comply with and maintain codes of conduct and anti-bribery and anti-corruption policies as are appropriate to meet its statutory responsibilities in this regard; and
10.1.3 promptly notify the other party of any request or demand for any undue financial or other advantage of any kind received by or on behalf of you in connection with a Contract.
10.2 We are part of an enlarged corporate group which pledges to trade legally and respect all laws including the Trade Sanctions imposed by EU and US Governments. We operate a Group Sanctions Policy which means that we cannot receive consideration from individuals or organizations based or residing in, or connected with, a country or organization which is subject to EU or US Government sanctions. We may refuse to accept an Offer from or provide Services and Deliverables to any such person or organization for any reason.
10.3 Breach by either party of these Anti-Bribery and Sanctions provisions will be a material breach of a Contract.
11. Consequences of Termination
11.1 Termination of a Contract by either party will not affect the operation of any other Contract between the parties.
11.2 Termination or expiration of a Contract, or any part thereof, will not affect the continuance in force of any provision of the Contract or the relevant constituent part which is expressly or by implication intended to survive termination.
12.1 Nothing in a Contract will operate to exclude or limit a party’s liability for death or personal bodily injury caused by its or its employees or subcontractors’ negligence, or for any fraudulent misrepresentation by any of the foregoing or for any other liability which cannot be excluded or restricted by law or for any breach by you of the usage restrictions in any Module.
12.2 Subject to the foregoing:
12.2.1 neither party will be liable to the other arising out of or in connection with a Contract for any of the following types of losses, damages, or expenses of any kind arising out of or in connection with that Contract;
(d) lost profits; *
(e) lost revenue*;
(f) lost sales*;
(g) anticipated savings; and
(h) losses, damages, or expenses arising from loss of data;
*Excludes the fees for Services agreed upon in an Order Form
12.2.2 except for any liability under any indemnity in clause 6 in relation to intellectual property, each party’s total aggregate liability to the other arising out of or in connection with a Contract will be limited to two times the amount paid and payable pursuant to the Contract; and
12.2.3 neither party will have any liability to the other party for any failure or delay in performing an obligation under a Contract because of any event beyond that party’s or its subcontractors’ reasonable control.
12.3 You are not entitled to rely on the exclusions of liability in this clause to relieve you from liability to pay monies payable to us.
12.4 Each party acknowledges that in entering into a Contract it has not relied on, and will have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in the Contract.
13. Confidentiality and Data Protection
13.1 Each party will ensure that it:
13.1.1 keeps the Confidential Information confidential and does not disclose it to any third party; and
13.1.2 only uses Confidential Information in relation to the Contract,
unless otherwise permitted by these Terms.
13.2 The commitments in clause 13.1 above do not apply to any Confidential Information which was:
13.2.1 publicly available before the Start Date or subsequently becomes publicly available through no failure to comply with the Contract;
13.2.2 already known to a party or is subsequently legitimately disclosed to a party by a third party without legal restriction; or
13.2.3 developed independently by a party without use of or reliance on the Confidential Information received under the Contract.
13.3 A party may disclose the Confidential Information:
13.3.1 to its Affiliates, agents, contractors and suppliers, provided that: (a) those third parties have entered into non-disclosure agreements no less onerous than as set out in these Terms; and (b) the party disclosing Confidential Information to those third parties ensures and is liable for their compliance with these Terms; and
13.3.2 where and to the extent required by applicable law, provided prompt written notice of that requirement is given to the original discloser (where such notice is lawful).
13.4 All Confidential Information disclosed by a party or its Affiliates remains the property of the discloser. Each party must return or, if clearly instructed by the other party, destroy that received Confidential Information remaining in its or its Affiliates' possession or control, within thirty (30) days of written request from the other party. Confidential Information may be retained to the limited extent required as part of securely-held confidential records to be used only to determine and/or comply with legal obligations (including secure electronic backups of these records, which may only be used to replace the permitted records if lost or corrupted).
13.5 Both parties will comply with all the obligations imposed on independent Data Controllers under the UK Data Protection Legislation, including prompt notification of any potential or actual breach of these obligations. Both parties will always use appropriate technical and organisational measures to protect any of the other party’s Personal Data that is held as part of the Services against loss or unauthorised use or access. Capitalised terms used in this clause 13.5 have the meanings given in the UK Data Protection Legislation in force at the time.
14.1 The terms and provisions of this Contract are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.
14.2 The documents comprising the Contract (together with any documents referred to therein or required to be entered into thereunder) contain the entire agreement and understanding between the parties relating to the subject matter of the Contract and supersede all prior agreements, understandings or arrangements (both written and oral) relating to the subject matter of the Contract.
14.3 In the event of conflict or inconsistency between the Order Form, the Module Terms and these Terms, and between any of the foregoing and a document referred to in the Contract, documents will take precedence in the order listed above.
14.4 You represent and warrant that the person executing this Contract has the authority to bind you to the terms hereof. You will require any employee, contractor or agent who accesses the Services or Deliverables to adhere to the relevant terms of the Contract.
14.5 Notices required under Contract will be sent by email to the relevant party’s address on the Order Form or as otherwise agreed in writing for such purpose. Notice by email is deemed effective three hours from transmission.
14.6 The parties acknowledge and agree that our communication may be electronic, and that any communications sent electronically comply with any legal or contractual requirement that such communication be made in writing.
14.7 We may assign, sub-license or otherwise transfer to any Affiliate the benefit of any of our rights under the Contract if we give you reasonable prior written notice. We may sub-contract our performance of any obligation under a Contract to any of our Affiliates without notice. This will not affect our performance obligations, nor liability to you in relation to the Contract. We will be responsible for any violation of our obligations hereunder by any such sub-contractor. Otherwise, neither party may assign, sub-license, subcontract or otherwise transfer to any third party any of its rights or obligations under the Contract without the other party’s prior written consent.
14.8 If any provision of the Contract is held to be invalid or unenforceable, that portion will be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remainder of the Contract will remain valid and enforceable.
14.9 Any translations of the Contract from English are provided merely for convenience and will not be legally binding. In the event of any conflict between the English language version and any translations, the English version will prevail.
14.10 Where these Terms use the words ‘include’ and ‘including’, these are illustrative and not limiting.
14.11 The Contract will not create, nor will it be construed as creating, any partnership or agency relationship between the parties.
14.12 Each party will comply with all applicable laws and government regulations which apply to a Contract.
14.13 Nothing in a Contract will require either party to do or omit to do anything which would contravene any applicable laws or government regulations.
15. Law and Jurisdiction; Waiver of Jury Trial
15.1 Where the Ascential contracting entity (as identified on the relevant Order Form) is a member of Ascential Europe – APAC, unless otherwise set out in clause 15.3 of these Terms below;
15.1.1 the Contract will be governed by and construed with the laws of England and Wales; and
15.1.2 the courts of England and Wales will be the exclusive venue for all disputes between the parties arising out of or in connection with this Contract and the parties hereby submit to the personal jurisdiction of, and waive any objections to venue in, such courts.
15.2 Where the Ascential contracting entity (as identified on the relevant Order Form) is a member of Ascential Americas;
15.2.1 the Contract will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules;
15.2.2 the state and federal courts located in the City of New York, Borough of Manhattan, New York, will be the exclusive venue for any and all disputes between the parties arising out of or in connection with the Contract and the parties hereby submit to the personal jurisdiction of, and waive any objections to venue in, such courts; and
15.2.3 EACH PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY DISPUTE, ACTION, OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15.3 Where the Ascential contracting entity (as identified on the relevant Order Form) is registered in the People’s Republic of China and you are registered in the People’s Republic of China;
15.3.1 the Contract will be governed by the laws of the People’s Republic of China; and
15.3.2 any dispute arising out of or relating the Contract shall be referred to, and finally settled by, arbitration in Shanghai International Economic and Trade Arbitration Commission.
15.4 This choice of law and jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of Intellectual Property Rights.
This part of the Contract sets out terms which apply specifically to our provision and your receipt of research services.
16. Research Services
16.1 The Order Form will specify whether the fees are fixed or are calculated on a time and materials basis. If fees are stated as a fixed total amount, that is not a guarantee that the Services will be completed and Deliverables will be delivered for that amount.
16.2 Where fees are calculated on a time and materials basis, the Order Form will show our daily rate for each individual person. Daily rates are calculated based on an eight-hour day worked between the hours of 8am to 6pm in the jurisdiction in which the Services are performed.
16.3 The fees exclude hotel, subsistence, travel and other ancillary expenses reasonably incurred by us in our provision of the Services.
16.4 We are entitled to charge an overtime rate of 25% of the standard daily fee rate on a pro-rata basis for any time worked outside the hours specified in the Order Form.
16.5 We will invoice you for the fees at the intervals specified on the Order Form. If no intervals are specified, we will invoice you at the end of each month for Services performed and Deliverables delivered during that month.
16.6 You are responsible for inspecting the Deliverables and any defect must be reported to us in writing within 30 days of our provision of the relevant Deliverable(s). We will not be in breach of a Contract nor liable to you for any defect in Deliverables which are reported after 30 days after they have been provided to you.
16.7 If we deliver Deliverables which do not comply with a Specification, you may refuse to take delivery of those Deliverables only, but you must accept any other Deliverables delivered pursuant to the same Contract which do comply with the relevant Specification.
17. Data Protection
17.1 The parties agree that you are the Data Controller and we are the Data Processor in respect of all Personal Data in relation to the Contract. The parties agree that they will comply with all applicable requirements of the UK Data Protection Legislation in relation to the Contract. The subject matter of the processing, the nature and purpose of the processing and the types of Personal Data are detailed in the Order Form.
17.2 Our obligations
17.2.1 We agree to:
(a) process the Personal Data only for the purposes of performing the Contract and only in accordance with the instructions received from the you in writing, unless we are required to do so by law;
(b) comply with all reasonable instructions given to us in writing by you in relation to the processing of the Personal Data;
(c) ensure that all members of staff who have access to the Personal Data are obliged to keep the Personal Data confidential, and that the Personal Data is only accessible to those members of staff who need access to it in order properly to perform our obligations under the Contract; and
(d) implement appropriate technical and organisations measures to protect the security of the Personal Data. These measures must ensure a level of security appropriate to the risk, taking into account the state of the technological developments, the costs of implementation of any such measures and the nature, scope, context and purposes of the processing, as well as the harm that might result from any unauthorised or unlawful processing of the Personal Data and from its accidental or unlawful destruction, loss, damage, alteration or unauthorised disclosure.
17.3 Data breach and compliance with your obligations under the Data Protection Legislation
17.3.1 We will:
(a) notify you without undue delay if we become aware of any Personal Data Breach relating to the Personal Data;
(b) notify you promptly, and in any case within five (5) days, of any communication from a Data Subject relating to the processing of his/her Personal Data, or any other communications that we receive regarding either party’s obligations under the Data Protection Legislation in respect of the Personal Data; and
(c) assist you with your obligations under the Data Protection Legislation.
17.4 Data transfer
17.4.1 We will not transfer any Personal Data outside the European Economic Area unless:
(a) we have obtained prior written consent from you;
(b) we ensure an adequate level of protection of the Personal Data that it is transferring; and
(c) we comply with any written instructions from you relating to the transfer or to the relevant requirements above.
17.5 Both parties will keep accurate records to demonstrate their compliance with this Data Protection Module and the Data Protection Legislation.
17.6 Compliance Verification
17.6.1 Forthwith following our receipt of your written request, we will certify to you our compliance with the provisions of this Data Protection Module and will provide such supporting evidence as you may reasonably require to verify the same.
18.1 In these Terms the following definitions apply:
Affiliates means any entity controlled by a party or under a party’s common control, where “control” means: direct or indirect ownership, in an entity of 50% or more of the voting rights conferred by all the issued shares or equity interests in the capital of that entity; or the power to determine directly or indirectly the composition of the majority of the board of directors, similar management body or direct the management of such entity;
Ascential, we, us, our means the member of the Ascential group of companies identified on the Order Form;
Ascential Americas means any current or future entity which is part of the Ascential Group of companies that is domiciled in the United States;
Ascential Europe - APAC means any current or future entity which is part of the Ascential Group companies that is domiciled in a country other than the United States, (with the exception of any entity registered in the People’s Republic of China);
Ascential Property means the Services, the Deliverables (including, without limitation, all derivatives or improvements), any patents, processes, software, code, files, technology, templates, forms, scripting, trade secrets, products, reports, ideas, concepts, operations, plans or intentions, know-how, market opportunities, customers, business affairs, development plans and financial information, any suggestions, information, enhancements, requests, feedback, recommendations or other input provided by any party relating to the Services or Deliverables, and any other items we create in relation to our performance of our obligations pursuant to a Contract;
Applicable Price Index means: i) where the contracting Ascential entity as identified on the Order Form is a member of Ascential Americas, the Consumer Price Index, all Urban Customers, United States, All Items rate; and ii) where the Ascential entity as identified on the Order Form is a member of Ascential Europe – APAC, the UK Retail Price Index (RPI) All Items rate;
Confidential Information means any information, disclosed by a party to the other party, in relation to a Contract, which is designated as confidential, commercially sensitive, or confidential in nature
Customer Materials means anything you provide to us to enable us to perform our obligations pursuant to a Contract;
Deliverables means the deliverables described in an Order Form;
Event means the event organized and provided by us as set out in the Order Form or Registration form.
Insolvency Event means a situation where a party cannot pay its debts as they fall due, has a petition for winding up or an administration order presented against it or passes a resolution for winding up or calls any meeting of its creditors or proposes to make any arrangement with its creditors, has a receiver (administrative or otherwise) or an administrator appointed over all or any part of its business or assets, or goes into liquidation or any event having a similar effect to any of the foregoing applies to a party under the laws of any jurisdiction;
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database 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 (or rights to apply) for, and renewals or extensions of, 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;
Module Terms means terms specific to the Services and/or Deliverables you have ordered from us, which are set out below;
Services means the services described in the Order Form; and
UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
DeHavilland Information Services Limited
7 Savoy Court
London WC2R 0EX
T: +44 (0)20 7728 4929
F: +44 (0)20 7960 6100
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