Terms and Conditions for the Supply of Services
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
Cancellation Notice: has the meaning given in clause 9.3.
Charges: the charges payable by the Customer for the supply of the Services as set out in the
SOW.
Commencement Date: means the date specified as such in the SOW.
Conditions: these terms and conditions set out in clauses 1 to 11 inclusive, as amended from time to time in accordance with clause 11.5.
Confidential Information: all information (however recorded or preserved) that one party, or any of its Affiliates, discloses or makes available to the other party, or any of its Affiliates, (recipient) in connection with the Contract and which would be regarded as confidential by a reasonable business person. It includes any personal information referred to in clause 7.3 and any information relating to the Charges or the operations, products, or customers of either party. It does not include information that is or becomes generally available to the public through no fault of the recipient; is independently developed by or for the recipient; or was, is, or becomes available to the recipient on a non-confidential basis from a person who, to the recipient's knowledge, is under no confidentiality obligation with respect to that information.
Contract: the contract between Kadence and the Customer for the supply of Services comprising the SOW, these Conditions, and any Schedules or Annexes specified in the SOW.
Customer: the person or entity who purchases Services from Kadence.
Customer Materials: all documents, information, and materials (whether owned by the Customer or a third party), which are provided by the Customer to Kadence in connection with the Services.
Deliverables: the deliverables specified in the SOW, including the Final Report.
Excusing Cause: has the meaning given in clause 4.2.
Final Report: the report issued by Kadence to the Customer in finalized form at the end of the analysis and reporting stage of the Services.
Force Majeure Event: any event, circumstance, or cause beyond a party’s reasonable control, including: acts of God, flood, drought, earthquake, or other natural disaster; epidemic or pandemic; poor respondent recruitment and cooperation rates; terrorist attack, riots, war, threat of war, imposition of sanctions, or breaking off of diplomatic relations; any law or action taken by a government or public authority; nuclear, chemical, or biological contamination; any labor or trade dispute, strikes, industrial action, or lockouts (other than in each case by the staff of the party seeking to rely on this clause or those of its subcontractors); or interruption or failure of a utility service.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist now or will subsist in the future in any jurisdiction.
Kadence: Kadence International Limited, registered in England and Wales with company number 02646756.
Pre-Existing IP: all Intellectual Property Rights that are owned or controlled by Kadence before the Commencement Date or that are developed or acquired by Kadence independently of the Contract.
Services: the services, including the Deliverables, supplied by Kadence to the Customer as set out in the SOW.
SOW: the written Services specification in relation to a specific project, including details of the Services to be provided, relevant timelines, fees, and Customer dependencies, and titled “Statement of Work” or “SOW”.
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
(c) A reference to writing or written includes email.
2. Term and Basis of Contract
2.1 The Contract starts on the Commencement Date and shall continue, unless terminated earlier in accordance with its terms, until the completion of the Services in accordance with the requirements of the Contract.
2.2 These Conditions are incorporated into every SOW and apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
2.3 Any descriptive matter or marketing materials issued by Kadence are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 Any quotation given by Kadence shall not constitute an offer, and is only valid for a period of 60 days from its date of issue.
3. Supply of Services
3.1 In supplying the Services, Kadence shall:
(a) perform the Services with reasonable care and skill, in accordance with good industry practice;
(b) ensure that the Services will conform with the SOW in all material respects;
(c) use commercially reasonable endeavors to meet any performance dates specified in the SOW, but any such dates shall be estimates only, and time shall not be of the essence for performance of the Services;
(d) comply with all applicable laws; and
(e) co-operate with the Customer in all matters relating to the Services.
3.2 Kadence reserves the right to amend the SOW if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Kadence shall notify the Customer in any such event.
4. Customer's obligations
4.1 The Customer shall:
(a) co-operate with Kadence in all matters relating to the Services;
(b) provide Kadence, in a timely manner, with all such information and materials as Kadence may reasonably require to provide the Services;
(e) comply with all applicable laws; and
(f) comply with any additional obligations as set out in the SOW.
4.2 (c) ensure that all information and materials provided to Kadence by or on behalf of the Customer are complete and accurate;
(d) obtain and maintain all necessary licenses, permissions, and consents which may be required for the Services before the date on which the Services are to start (and disclose the same to Kadence if reasonably requested to do so);
To the extent that Kadence’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or any of its agents, consultants, or other suppliers (Excusing Cause), Kadence shall not be in breach of the Contract nor liable for any losses incurred by the Customer as a result of its performance being prevented or delayed. Without prejudice to any other right or remedy it may have, Kadence shall:
(a) be entitled to suspend performance of the Services until the Customer remedies its default;
(b) be allowed an extension of time to perform its obligations equal to the delay caused by the Excusing Cause;
(c) not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Kadence's failure or delay to perform the Services;
(d) be entitled to payment of the Charges despite its performance being prevented or delayed; and
(e) be entitled to recover any losses, including additional costs, incurred as a result of the Excusing Cause.
5. Charges and payment
5.1 In consideration for the provision of the Services, the Customer shall pay Kadence the Charges in accordance with this clause 5.
5.2 5.3 Unless otherwise stated in the SOW, the Charges shall exclude any expenses incurred by Kadence on behalf of the Customer, including the cost of hotel, subsistence, and traveling expenses reasonably incurred by the individuals whom Kadence engages in connection with the Services, provided always that Kadence shall obtain the Customer's approval before incurring any such expense. Such expenses shall be payable by the Customer, subject to submission by Kadence of a corresponding invoice. Unless otherwise stated in the SOW, Kadence may invoice the Customer for the Charges as follows: 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11
(a) 60% on or at any time following the Commencement Date; and
(b) 40% on or at any time following delivery of the Final Report to the Customer.
The Customer shall pay each invoice submitted by Kadence under the Contract:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Kadence.
All sums payable by the Customer exclude amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Kadence, pay to Kadence any additional amounts in respect of VAT as are chargeable on those sums. If the Customer fails to make a payment due to Kadence under the Contract by the due date, then, without limiting Kadence's remedies under clauses 5.7 and 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England base rate from time to time, but at 4% a year for any period when that base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from the due date until payment
If Kadence takes any legal or other steps for the recovery of any overdue sums, then the reasonable costs of all such steps shall be payable by the Customer on demand.
In the event that a query or dispute is raised in good faith on an invoice, the Customer shall only be entitled to withhold such part of the payment as relates to the amount which is in dispute. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law or any withholding of payment in accordance with clause 5.8).
Where the Customer is acting as agent for a third party end client, it enters into the Contract as principal and will be primarily liable for all payments due under the Contract. Kadence reserves the right to review, and if reasonably necessary, increase the Charges payable for the Services in the event of:
(a) any changes to the Services agreed by the parties;
(b) delays resulting from Kadence withholding Services due to the Customer’s failure to
make payments when due; or
(c) the Customer’s failure to carry out its responsibilities or obligations under the Contract or to provide assistance or facilities as required under the Contract; or
(d) the Customer requesting that Kadence delay work for any reason.
6. Intellectual property rights
6.1 The Customer owns all Intellectual Property Rights in the Customer Materials. The Customer grants Kadence a limited, non-exclusive, revocable, royalty-free licence to use, copy and modify the Customer Materials during the term of the Contract solely as necessary for the purpose of providing the Services to the Customer. Kadence may grant sub-licenses of the Customer Materials to its subcontractors and other suppliers where necessary for the performance of the Services.
6.2 Kadence owns all Intellectual Property Rights in and to the Pre-Existing IP. The Customer is granted no rights to the Pre-Existing IP other than a limited, non-exclusive, perpetual, irrevocable, transferable, non-transferable, non-assignable, royalty-free licence to use it solely to the extent it is incorporated into a Deliverable provided to the Customer (provided that nothing shall permit the Customer to use the Pre-Existing IP, or any element of it, independently of the Deliverable(s)).
6.3 Upon the Customer’s full and final payment of all undisputed Charges, Kadence hereby assigns to the Customer all of Kadence's Intellectual Property Rights, in and to the Deliverables. To the extent any such rights cannot be assigned, Kadence hereby grants to the Customer an exclusive, perpetual, irrevocable, transferable, sub-licensable, worldwide, royalty-free, fully paid-up license to use, reproduce, distribute, modify, and create derivative works of such Deliverables. Kadence shall, upon the Customer's request and at the Customer's expense, execute any documents necessary to perfect the Customer's ownership of the Deliverables.
6.4 Kadence shall not use, reproduce, sell, or otherwise exploit any data, results, or outputs generated in connection with the Services for any third party or for its own purposes without the Customer’s prior written consent.
7. Data protection
7.1 Each party shall comply with all applicable data protection legislation in relation to the Services.
7.2 In the event that a party requires the other party to process its personal data, the parties shall enter into a separate written agreement, setting out all required details (including the nature and duration of the processing, the type(s) of data, and the data subjects involved) as well as each party’s obligations in respect of such data.
7.3 The Deliverables may include files containing personally identifiable information (PII) of respondents, including audio and/or video recordings (the Files). By accessing the Files, the Customer acknowledges and agrees that, without limiting the provisions of clause 11.3, it will:
(a) Use Limitation: use the PII only for the specific project purposes for which it has been provided, and not for any other purpose without Kadence’s prior written approval;
(b) Access Control: ensure that access to the Files is restricted to authorized personnel directly involved in the project;
(c) Retention & Disposal: retain the PII only for as long as necessary to fulfill the agreed project purposes, and securely delete or destroy all copies: once no longer required, or if requested by a respondent, or a period of two years has elapsed from receipt of the Files, whichever is sooner; and
(d) Non-Disclosure: not share the PII with any third party without Kadence’s prior written approval, unless required by law.
8. Limitation of liability
8.1 Nothing in the Contract shall limit or exclude either party’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) deliberate default; or
(d) any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, Kadence's total liability to the Customer shall not exceed an amount equal to 100% of the Charges (net of VAT) paid or payable by the Customer pursuant to the SOW. Kadence's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8.3 Subject to clause 8.1, neither party shall have any liability for:
(a) loss of profits (including loss of anticipated savings);
(b) loss of business or business opportunity;
(c) loss of use or corruption of software, data, or information;
(d) loss of or damage to goodwill; and
(e) indirect or consequential loss.
8.4 Kadence has given commitments as to compliance of the Services with relevant specifications, including clause 3. In view of these commitments, all other terms, warranties, guarantees, and representations relating to the Services (whether express, implied, oral, or written) are, to the fullest extent permitted by law, excluded from the Contract.
8.5 8.6 8.7 Kadence does not make any warranty or guarantee (express or implied) as to the predicted or actual results of any research or questionnaires carried out as part of the Services.
Kadence accepts no liability for any loss suffered by the Customer or by any third party:
(a) as a direct or indirect result of its use of any data provided as part of the Services;
(b) as a direct or indirect result of making any business decision, or refraining from making any such decision, based wholly or partly on the reports, data, or other information provided to the Customer as part of the Services; or
(c) arising from the interpretation by the Customer or any third party of reports, data, or other information provided as part of the Services.
The Customer shall indemnify Kadence against any loss, damage, or other liability (including costs and expenses) suffered as a result of any third-party claim arising out of or in connection with the Services.
9. Termination
9.1 9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if: (a) (b) (c) (d) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing to do so; the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 9.1(b); the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to fulfil its obligations under the Contract is in jeopardy.
Without affecting any other right or remedy available to it, Kadence may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
(b) in Kadence’s reasonable opinion, association with the Customer is likely to bring Kadence into disrepute; or 9.3 (c) the Customer is acquired by, or itself acquires, a competitor of Kadence. The Customer may terminate the Contract for convenience at any time by giving written notice to Kadence (a Cancellation Notice). 9.4 10. 10.1 10.2 10.3 Without affecting any other right or remedy available to it, Kadence may suspend the supply of Services under the Contract or any other contract between the Customer and Kadence if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 9.1(b) to clause
9.1(d), or Kadence reasonably believes that the Customer is about to become subject to any of them.
Consequences of suspension and termination
If the Customer terminates the Contract pursuant to clause 9.3, the Customer shall, upon receipt of a corresponding invoice (a Cancellation Invoice), pay to Kadence the greater of:
(a) all costs that Kadence has incurred or committed to incur prior to receipt of the Cancellation Notice; and
(b) the following:
(i) where the Cancellation Notice is served at any time prior to completion of the Set-Up Phase, 20% of the total project Charges;
(ii) where the Cancellation Notice is served at any time between completion of the Set-Up Phase and prior to completion of the Fieldwork Phase, 60% of the total project Charges; or
(iii) where the Cancellation Notice is served at any time between completion of the
Fieldwork Phase and prior to completion of the Analysis and Reporting Phase, 85% of total project Charges. To the extent that the Customer has already paid any Charges prior to serving the Cancellation Notice, Kadence shall deduct such amount before issuing the Cancellation Invoice.
Any Cancellation Invoice issued under this clause 10 shall be payable by the Customer in accordance with clause 5.4.10.4 For the purposes of clause 10.1, the Set-Up, Fieldwork and Analysis and Reporting Phases are the phases described as such in the SOW.
10.5 On suspension of the Services or termination of the Contract for any reason other than pursuant to clause 9.3, the Customer shall immediately pay to Kadence all of Kadence's outstanding unpaid invoices and interest. In respect of Services supplied but for which no invoice has been submitted, Kadence shall submit an invoice in respect of all Services provided, any expenses incurred in accordance with clause 5.2, and any applicable VAT to the point that the Services were suspended or terminated.
10.6 10.7 10.8 On suspension of the Services or termination of the Contract for any reason, the Customer shall have no right to use any Deliverable until it has made all payments in accordance with clauses 10.1 and 10.5 (as applicable). Termination of the Contract shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11. General
11.1 Force majeure. Neither party shall be in breach of the Contract nor otherwise liable for delay in performing, or failure to perform, any of its obligations under the Contract (other than the Customer’s obligation to pay fees due) if such delay or failure result from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly.
11.2 Assignment and other dealings.
(a) Subject to clause 11.2
(b), neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over, or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party.
(b) Kadence may subcontract any of its obligations under the Contract to any Affiliates or other third party, provided it shall at all times remain liable to the Customer for the performance of the Contract and liable for all acts and omissions of third parties to which it subcontracts or delegates obligations as if they were its own.
11.3 Confidentiality.
(a) Information of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party's Confidential Information:
Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any Confidential (i) (ii) (c) to those of its, and its Affiliates’, employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party's Confidential Information comply with confidentiality obligations which are substantially equivalent to those set out in this clause 11.3; and, as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority. Neither party may use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under the Contract.
11.4 Entire agreement.
11.5 11.6 11.7
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorized representatives). Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy. Severance. If any provision or part-provision of the Contract 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. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.8 Notices.
11.9 11.10
(a) Any notice given by either party shall be in writing, in English, signed by or on behalf of the party giving it and sent to the receiving party at the email address stated in the SOW, or such other email address as may be notified from time to time in accordance with this clause. Any such notice shall be sent as a pdf (or equivalent file format) attachment and the email subject shall include the words “legal notice attached”.
(b) Provided that the requirements of clause 11.8(a) have been met, a notice shall be deemed to have been received at the time of transmission, provided that, if deemed receipt would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. For the purposes of this clause, business hours means 9:00am to 5:00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution. Third party rights. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Dispute resolution and governing law.
(a) Any dispute between the parties arising out of or in connection with the Contract shall be referred in the first instance to a senior representative of each party for resolution. The nominated representative of each party must have the authority to settle the dispute referred to it. The nominated representatives of each party shall meet within 5 Business Days of the dispute being referred to them and shall work together in good faith to resolve such dispute.
(b) Any dispute or claim arising out of or in connection with the Contract, 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. The parties submit to the exclusive jurisdiction of the courts of England and Wales to settle any such dispute or claim.