USUAL TERMS AND CONDITIONS OF BUSINESS
Version number 1.2 Brand Influence
These Conditions set out Brand Influence's standard terms and conditions of business
The headings in these Conditions are for convenience only and shall not affect their interpretation.
DEFINITION OF TERMS
In these terms and conditions the following words or phrases have the meaning set out alongside them save to the extent that the context clearly indicates otherwise:
Aggregated Materials - means any Materials whether printed or provided on any
other medium (including, but not limited to, USB sticks, DVDs, videos, CD-ROMs, online web applications, apps or other software programs) that have been provided to, translated by or adapted by the Certified Practitioner or the Purchaser;
Agreement - means any contract between Brand Influence and You for the purchase of the Services, incorporating these Conditions;
Assessment Methods - means any method of assessing a Participant, including but not limited to: competency-based interviews; use of appraisal reports; use of an assessment centre or development centre; analysis of a letter of application and/or curriculum vitae; measures of ability; reviewing a portfolio of the Participant's past work; undertaking sample work exercises; group exercises with other Participants; review of personnel records; considering peer review data on the Participant and performance management data on the Participant;
Assessment Process - means the use of any Brand Influence questionnaire, and any ensuing assessment of the Participant;
Consultants - means Brand Influence's employees, agents and/or sub-contractors;
Conditions - means these terms and conditions as amended from time to time;
Confidential Information - means any information which is disclosed to You by Brand Influence pursuant to, or in connection with, these Conditions and the Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential), or which otherwise comes into Your hands, the Website, the Services or the Products other than information which You can demonstrate is already in the public domain (otherwise than as a result of a breach of any obligation of confidentiality);
Data Controller - means an individual or an entity who defines the purposes for which and how any Personal Data are, or are to be, processed (including, but not limited to, collation of the data, use of the data, amendments to the data, processes for retaining and/or deleting the data);
Data Processor - means an individual (other than a member of staff of the Data
Controller) or an entity that processes Personal Data for the Data Controller; Ethical Standards - means the terms and conditions any Purchaser who uses Brand Influence's Restricted services must abide by,
Fees - means any and all fees to be paid to Brand Influence by a Purchaser for the provision of the Services;
Force Majeure - means any event that impacts Brand Influence’s ability to meet its obligations specified in these Conditions arising from acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labour disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials, or any cause beyond the reasonable control of Brand Influence;
Intellectual Property Rights - means, all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks (including without limitation any trade names), business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, 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 (or rights to apply for) and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection which may, now or in the future, subsist in any part of the world relating to the Products, Services, Materials, Aggregated Materials, the System and the Website, owned by Brand Influence and acquired by Brand Influence from time to time;
Brand Influence - means the Brand Influence group of companies including Brand Influence Ltd (a registered Limited Company) whose registered office is 1st Floor, New Zealand House, 80 Haymarket, London SW1y 4TE and any other companies bought or set up by Brand Influence LLP in the future;
Materials - means any Brand Influence materials, whether printed or provided on any other medium (including, but not limited to, USB sticks, DVDs, videos, CDROMs, online web applications, apps or other software programs) that are provided to You for use in the course of providing the Services;
Order - means an order placed by You with Brand Influence for the provision of Services;
Participant - means any user who completes a questionnaire;
Participant Data - means any data concerning the Participant (including but not limited to Personal Data) that is gathered from the Participant
Personal Data - means data which relates to a living individual who can be identified from that data and includes but is not limited to Sensitive Personal Data.
Purchaser - means any organisation or person which engages the services of Brand Influence;
Sensitive Personal Data - means Personal Data concerning political/religious views or beliefs, membership of a trade union or political party, ethnicity or racial background, mental health, physical health, sexual orientation or information on sexual practices, commission (or alleged commission) of any offence and/or the proceedings of any offence alleged or actually committed;
Services - means any services that Brand Influence has agreed to provide You with, including, but not limited to, Consultancy; Practitioner Services; Online services; Inhouse courses; Public courses and Bureau services;
You, Your - means a Purchaser or Client.
The headings in these terms and conditions are for convenience only and shall not
affect their interpretation.
These Conditions and the Agreement shall form the agreement between You and Brand Influence to the exclusion of all other terms and/or conditions (including any terms and/or conditions which You purport to apply as specified in any PO, purchase order, written instructions, letter of engagement, order confirmation, brief or other specification) and supersede any earlier agreement or agreements between You and Brand Influence.
Brand Influence will provide You with the Services subject to these Conditions and the Agreement.
Each of Your Orders placed with Brand Influence shall be deemed to be an offer by You to purchase Services subject to these Conditions.
No Agreement will come into existence until Brand Influence provides You with confirmation Brand Influence has accepted the Order or issued an invoice.
Brand Influence will:
Provide the Services after Brand Influence has notified You that the Services are available;
Provide the Services to, or in, the location specified in the Order.
Brand Influence's sales/advertising literature in print and on the Website, and any quotation provided by Brand Influence, are provided in order to indicate the nature of Brand Influence's Services, but do not form part of this Agreement, unless agreed in writing in the Agreement.
Brand Influence shall not be liable for any failure to deliver the Products and Services caused by any event of Force Majeure. Any delivery dates quoted are guidelines and time of delivery is not of the essence.
Brand Influence must be informed by You in writing within 10 days in the event that the Services have not been delivered according to the quoted delivery dates.
If you are dissatisfied with Brand Influence's delivery of its Services, You must inform Brand Influence in writing within 30 days of the delivery.
You and Your staff shall keep confidential all Confidential Information and this clause shall survive termination of this Agreement for ten years.
You agree that Brand Influence may publish Your organisational name, any associated logos and any feedback You or Your staff have provided on our Products and Services in Brand Influence's marketing materials and on Brand Influence's client lists.
5. EXCLUSION OF LIABILITY
To the fullest extent permitted by law, Brand Influence excludes any and all liability arising as a result of the use of any Services provided by it to You and You acknowledge that this exclusion forms part of the basis of pricing under which the said Services are provided to You.
Notwithstanding the provisions of Clause 5.1 above, Brand Influence does not exclude or limit liability in respect of death or personal injury arising out of its negligence or that of its servants or agents.
To the extent that liability cannot be excluded and without prejudice to Clause 5.1 above, Brand Influence limits its liability to an amount not exceeding the amount of any Fees paid by you to Brand Influence in the 12 months immediately preceding the event from which the liability arises.
You shall not rely on the abilities and/or discernment of Brand Influence, its Consultants or any of its agents to establish the suitability of the Services for any particular purpose and You must use your own abilities and/or discernment to satisfy Yourself that the Services are suitable for Your intended purposes, even if a Consultant or agent of Brand Influence has given written or verbal opinions concerning the suitability of the Services for a particular purpose. This clause shall survive termination of this Agreement.
Brand Influence shall not be liable and gives no warranties to You or any third party as to the suitability of the Services for any particular purpose, including but not limited to the accuracy of its reports. This clause shall survive termination of this Agreement.
You agree that the reports Brand Influence create for You represent Brand Influence's professional opinions based on analysis of questionnaires and must not be relied upon as statements of fact.
Brand Influence is committed to helping organisations value diversity in the workplace and care has been taken to ensure Brand Influence's Services do not unlawfully discriminate or label/stereotype individuals. Brand Influence shall not be liable if Your or Your staff/agents through Your acts or omissions, make decisions based on, or interpretations of, Brand Influence's questionnaire results, reports that result in claims of unlawful discrimination or labelling/stereotyping of individuals.
6. PAYMENT TERMS
All sums payable under the Agreement shall be paid in full without deduction, with holding or set off and are exclusive of VAT and any other duty or tax which shall be payable to the client.
Overdue interest payments shall attract interest at the annual rate of 2% above the prevailing base rate of 2% above the prevailing base rate. Interest shall accrue on a daily basis from the date payment becomes due until Brand Influence has received payment of the overdue amount together with the accrued interest.
Brand Influence and/or persons or companies acting on its behalf or as its agents reserve the right to charge and recover all costs incurred in connection with the pursuance / and / or recovery of outstanding sums.
Without prejudice to any other rights or remedies to which the parties may be entitled, Brand Influence may defer delivery of its Products and Services if You do not pay Brand Influence any monies by the due date. Brand Influence will not incur any liability in the event of it deferring delivery.
Where Brand Influence provides Services to a Purchaser, Brand Influence may extend such credit facilities as it may in its absolute discretion decide which facilities may be varied or extinguished at any time without notice.
7. TAXES (INCLUDING VALUE ADDED TAX LEVIED BY HM
REVENUE AND CUSTOMS IN THE UK)
The price of Services quoted shall be exclusive of value-added tax, other local sales taxes, import duty, export duty and taxes on royalties, and all invoices shall be increased by any such amounts with the tax component highlighted, unless we agree otherwise and You warrant to pay such amounts to the tax authorities Yourself.
Below is Brand Influence's current interpretation of HM Revenue and Customs rules governing the application of VAT. This interpretation will be applied to all Orders unless this interpretation proves to not be lawful or the laws governing VAT change:
All Orders for Products and Services delivered outside of the European Union will not have VAT applied;
All Orders for Products and Services delivered inside the UK will have VAT applied, provided they are not VAT zero-rated;
All Orders for Products and Services delivered outside of the UK, but inside the European Union, will be VAT zero-rated provided that You are VAT registered in the European Union and provide Brand Influence with Your VAT number at the time of making the Order;
All Orders for Products and Services delivered outside of the UK, but inside the European Union, will have VAT charged at the UK rate if You are unable to provide a VAT number at the time of making Your Order.
8. PROTECTION AND PROCESSING OF PERSONAL DATA
You acknowledge that You are responsible for ensuring that all Personal Data collected and used in the performance of the Services, including but not limited to Personal Data input into the System, has been lawfully obtained and used in accordance with the laws governing both the individual whose Personal Data is used and in accordance with the laws of Your jurisdiction
You acknowledge that you are the Data Controller of the Personal Data and that Brand Influence is merely the Data Processor of that Personal Data. You warrant that in the event that You input any Personal Data that You have the consent of the individual where Personal Data you input, including consent to that Personal Data being exported or processed outside the European Economic Area.
With the express permission of the Participant, Brand Influence will also act as a Data Controller in order to gather and retain copies of Participant Data for research and other purposes. Unless agreed otherwise in writing, all Personal Data that You provide Brand Influence with is, and shall remain, your property, save for copies of any data retained by us as a Data Controller.
You shall indemnify and keep indemnified Brand Influence from and against any and all costs, claims, damages, losses, expenses and liabilities arising as a result of or in connection with any notice, action, claim, demand, or allegation that any processing of Personal Data undertaken by You which infringes the rights of any individual, third party and/or is in any way other than in compliance with any applicable data protection laws party up to the limits provided by Your insurances covering these risks.
Brand Influence may use the Purchaser, or Participant's Personal Data for the following purposes:
To register an individual or organisation to our Services;
To fulfil any orders for our Services;
To provide customised questionnaires and applications;
To process questionnaires and create reports;
To provide Assessment Services to our clients, through research/analysis of workplace performance, opinions and interpretations of issues, psychological preferences, skills, qualities, underlying motivations, competencies, capabilities, interests and responses to pressure and/or stress;
To research and improve our Assessment Services;
To support our security, administration, testing our systems, billing processes, accounting, credit card checks, maintaining our systems, providing customer service, enforcing and/or defending our legal rights and developing our products;
To enable us and our clients (typically their human resources function, through the use of our Assessment Services) to engage in one of three purposes: the development of individuals; the recruitment/selection/ promotion of individuals; general research in the field of Human Resources;
To carry out our obligations arising from any contracts entered into between us and a third party;
To allow users to participate in interactive features of our Website;
To administer the Website which may involve sharing information with our network provider;
To carry out customer and market research;
To provide any marketing materials (where consent is provided), including news, updates and offers, (unless we are subsequently informed that such information is no longer required).
To provide existing clients with information about our Products and Services where these are similar to previous purchases by the client or the client has previously been contacted about;
To deal with requests and enquiries;
To track activity on the Website;
To improve the quality of our Products and Services;
To comply with legal, statutory and/or regulatory obligations.
9. INTELLECTUAL PROPERTY RIGHTS
You shall not remove or obscure any Brand Influence copyright statement or trademarks included in the Materials.
You acknowledge that the Intellectual Property Rights in the Materials and any Aggregated Material belongs to Brand Influence and You shall not dispute ownership of the Materials and/or the Aggregated Materials.
You will own any reports provided to You as part of our Consultancy for You, provided that You have fully paid all associated Fees, and save that You agree that all intellectual property rights in the reports provided to You are owned by Brand Influence.
Once You have paid any Fees associated with the reports provided to You, Brand Influence grants you a non-transferrable and non-exclusive licence to use the intellectual property within the reports provided to You.
You will not seek to copy, decompile or reverse-engineer any Materials provided to you by Brand Influence.
You shall fully and effectively indemnify Brand Influence from and against all losses, damages, costs, liabilities and expenses (including legal expenses) arising out of or in connection with any third-party demand, claim or action alleging that any content incorporated by You or Your servants or agents into the Materials or the Aggregated Materials infringes any intellectual property right belonging to a third party.
10. TERM AND TERMINATION
Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other:
If the other party commits any material breach of this Agreement and (if such breach is remediable) fails to remedy that breach within 60 days after the service of written notice requiring the same;
If the other party is unable to pay its debts, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party.
Without prejudice to any other rights or remedies to which Brand Influence may be entitled, Brand Influence may terminate this Agreement without liability to You if:
You are in breach of any of Your obligations under this Agreement;
You dispute the validity or ownership of any of Brand Influence's Intellectual Property Rights.
11. EFFECTS OF TERMINATION
Upon termination of this Agreement for any reason all monies payable to Brand Influence shall be payable within seven days of the date of termination, and this clause supersedes any other provision.
Upon termination of this Agreement for any reason, upon request, Brand Influence will return to You all of Your confidential information in its possession, and upon request You will return to Brand Influence all Confidential Information.
Any notice under this Agreement must be in writing and must be delivered by hand or sent by pre-paid first-class post, air mail or recorded delivery post to the other party at its address set out in this Agreement or such other address as may have been notified by that party for such purposes, or sent by electronic mail (with a return receipt) to the other party's email address as set notified from time to time or other communication mechanisms established by Brand Influence as the case may be. A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in normal business hours, at 9 a.m. on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received three Business Days after the day of posting (in the case of inland first-class mail), or seven Business Days after the date of posting (in the case of air mail). A notice sent by electronic mail will be deemed to have been received on the next Business Day after the email was sent.
This Agreement shall be governed and construed in accordance with English law and any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules, which Rules are deemed to be incorporated by reference into this clause.
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.
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties.
You shall not, without the prior written consent of Brand Influence, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Save as expressly provided in this Agreement, no amendment to this Agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties.
Each right or remedy of Brand Influence under the Agreement is without prejudice to any other right or remedy of Brand Influence whether under this Agreement or not.
If any provision of the Agreement is adjudged by any court, tribunal or other body of competent jurisdiction to be wholly or partly illegal, unenforceable, invalid or unreasonable, it shall, to the extent of such illegality, unenforceability, invalidity or unreasonableness, be deemed deleted from the Agreement and the remaining provisions of the Agreement, and the remainder of such provision, shall continue in full force and effect.
A reference to a statute, statutory provision or law is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
These Conditions are the only Conditions upon which Brand Influence is prepared to deal with You and they shall govern the Agreement to the entire exclusion of any other conditions (either express or implied).
The language of these Conditions is English and even though there may be translations of these Conditions into languages other than English, English shall be the definitive and binding version and the only language used in the interpretation of the Conditions.
A waiver of any right under the Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. 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.
Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.