In these conditions: –
Affiliate means in relation to a party to this Agreement, any corporation or other entity that controls, is controlled by, or is under common control with, a party. A corporation or other entity shall be regarded as in control of another corporation or entity if it owns or directly or indirectly controls 50% or more of the voting securities or other ownership interest of the other corporation or entity, or if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the corporation or other entity.
Agreement means an executed Proposal governed by these Terms.
Background IP means the DT Behavioural Data and any Intellectual Property Rights other than the Foreground IP that arises or is obtained or developed by Supplier and/or third parties and which may be developed independently of the Services and includes, any of the following, whether created before, during or after the Agreement: methods and systems Supplier uses to provide the Services, including without limitation, sampling, research, and methods of process or questioning, research products, sample or panel database(s), systems of analysis, observation, questions or questionnaire forms , and completed questionnaires, as well as all computer software or programs, models or systems, and analysis, used in Supplier’s performance of the Services, whether or not such methodologies or software are patentable or copyrightable.
Change means a change to the scope of the Services set out in the Proposal.
Change Request means a request by a Party for a Change.
Client means any person or organisation receiving the Services pursuant to and named in an applicable Proposal.
Client Data means all data supplied by Client under the Proposal.
Completes means a completed Survey (and associated Survey responses) finished by a Survey Respondent who has successfully answered the entire questionnaire, regardless of the answers given, and where the Respondent has not been Screened Out.
Control means the ownership of an entity, or the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and the expression change of control shall be construed accordingly;
Confidential Information means information which is disclosed or provided (whether orally, in writing, graphically, electronically or by any means) by Disclosing Party its Representatives to the other Receiving Party or its Representatives which is of a confidential or proprietary nature or which a reasonable person would believe should be treated as such, including but not limited to research methodologies, technical information, designs, recipes, plans, programs, methods, systems, formulae, processes, technology, object code, source code, executable code, metadata, flow charts, devices, designs, machines, inventions, research or development projects, plans for future project development, financial information, sales practices, business plans, marketing and pricing plans and strategies, customers, suppliers, Personal Data and all other confidential information of every kind and character, together with any analyses, compilations, studies or other documents prepared by the Receiving Party and/or its Representatives that contain or otherwise reflect such information.
Concept Products means Client’s new concepts, products, services or designs, where such products form part of the subject matter of the Survey.
Cookie means online data collection technology.
Cookie Tracking means a service involving Client’s online data collection through the deployment of Cookies on Respondent’s browsers.
Data Protection Legislation means the following as amended, extended or re-enacted from time to time: (i) EC Directive 2002/58/EC on Privacy and Electronic Communications; (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426); (iii) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”); (iv) the Data Protection Act 2018; and (v) all applicable local laws or regulations relating to the processing of Personal Data as contemplated under this Agreement.
Data Controller has the meaning given to it under the Data Protection Legislation.
Data Processor has the meaning given to it under the Data Protection Legislation.
Deliverable(s) means all data, materials, reports, products and deliverables developed by Supplier, its Affiliates or its agents, contractors and employees exclusively for Client as part of or in relation to the Services in any form as specified in a Proposal and where Digital Tracking is part of the Services provided, and if agreed in the Proposal, the Deliverables shall include the Results.
Disclosing Party means the Party disclosing Confidential Information to the Receiving Party or its Representatives.
Drop Out means a Respondent who has not been Screened Out but fails to complete the Survey.
DT Behavioural Data means reports, products and results produced by Supplier or its agents, contractors and employees as part of or in relation to the Services in the form as specified in a Proposal that are in a non-aggregated form (i.e. at an individual level (with directly identifiable personal data removed))
Effective Date means the earlier of the start date which Supplier actually commences the provision of the Services and the date of execution of a Proposal. ESOMAR 28 means the twenty-eight questions posed by ESOMAR to help buyers of online sample, which Supplier has answered to assist its clients in buying its services, a copy of which can be found at the following url: https://tolunacorporate.com/wp-content/uploads/2020/07/esomar-28.pdf
Fees means the fees as set out in the applicable Proposal and in the currency specified therein.
Force Majeure Event means any acts, events, omissions or accidents beyond either of the Parties’ reasonable control including but not limited to any of the following: disease, epidemic or pandemic, flood, earthquake, windstorm or other natural disaster; war; terrorist attack, civil war, civil commotion or riots; fire, explosion or accidental damage; adverse weather conditions; interruption or failure of utility service, including but not limited to electric power, gas or water; any labour dispute, including but not limited to strikes, industrial action or lockouts leading to non-performance by either of Supplier or its subcontractors.
Foreground IP means any Information created exclusively for Client, during the course of the performance of the Services, including the Deliverables and where agreed in the Proposal, the Results, but excluding the Background IP.
Full Service means where Supplier provides Client access to Sample Sources, programs Client’s Survey, distributes invitations to the appropriate Sample Source, hosts the Survey on its network of computer servers and gathers the quantitative marketing research data and delivers the results to Client in un-tabulated form. Guidelines shall include: the Public Release Policy, together with any Industry Standards.
Group Compan(y)(ies) for Supplier means any corporation or entity where at least 50% of the ultimate ownership interest is owned by Toluna Holdings Limited (as may be renamed), including but not limited to entities containing the names Toluna and Harris Interactive.
Incidence Rate means the ratio between the total number of Completes divided by the sum of total Completes and total number of Respondents who have been Screened Out.
Industry Standards means generally accepted professional industry standards and practices for survey research including any guidelines or codes of conduct published by the UK Market Research Society and ESOMAR.
In-House Usage Testing (I-Hut) or Concept Testing means a Survey whereby a Concept Product is sent to Respondents at their home address, or other mutually agreeable location for product testing and the subsequent Survey responses are based on such testing.
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, 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 rights, topography rights, rights in Confidential Information (including know-how, tools 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.
IP Claim has the meaning given to it in clause 12.4.
LOI refers to the average length of the Survey to be completed by the Respondents.
Losses means all losses, damages, liabilities, costs, expenses, fines and penalties (including, without limitation, reasonable legal fees and costs).
Personal Data has the meaning set out in the Data Protection Legislation.
Processing has the meaning given to it in the Data Protection Legislation, and „Process“ will be construed accordingly.
Program and Host means where Supplier programs Client’s Survey, invites potential Respondents from a list provided by Client or such other third parties at Client’s direction, hosts the Survey on its network of computer servers and gathers the quantitative marketing research data and delivers it to Client in un-tabulated form.
Proposal means the document (including but not limited to an order form, work order, statement of work) or online order page provided by Supplier which sets out the specification of the Services and the Fees payable by the Client to Supplier.
Public Release Policy means Supplier’s Policy regarding Public Release of Study Results as set out in Appendix 2 attached hereto;
Receiving Party means the Party receiving Confidential Information from the Disclosing Party and/or its Representatives.
Representatives means with respect to any Party, any Group Company of that Party and its and their respective directors, officers, employees, independent contractors, workers and professional advisors (including, without limitation, legal advisers and accountants).
Respondent means a participant who responds to a Survey.
Results means the results of the Digital Tracking, being: data, reports, materials, products and deliverables produced by Supplier, its Affiliates or its agents, contractors and employees, exclusively for Client as part of or in relation to the Services in any form as specified in a Proposal.
Sample Only Services means where Supplier provides Client access to the Sample Sources, directs appropriate potential Respondents to Surveys programmed and hosted on Client’s computer systems and servers or on the computer systems and servers maintained by others but under Client’s direction and/or control. Supplier’s obligation to direct Sample to Client’s Surveys is subject to its determination that it has sufficient Respondents and that it can meet the delivery and other terms established by Client, as well as Client’s compliance with this Agreement.
Sample Sources means the Supplier Panels and, where applicable, Third Party Panels and/or Client’s Respondents.
Screen-Out(s) means those Respondent(s) that are invited to partake in the Survey but who do not meet the qualifying criteria to participate in the Survey.
Soft Launch means where Supplier commences the field work by sending the Survey to 10%-20% of the total Respondents and then undertakes an analysis of the data in order to check if there is a perfect match with Client expectations.
Services means the services to be performed by Supplier as described in the Proposal. If Client elects under a Proposal to procure Toluna QuickSurveys, then it shall comply with the terms found at: https://www.quicksurveys.com/Content/Policies/Terms-and-Conditions.aspx (“TQS Terms”). If there is any conflict between the TQS Terms and the terms of this Agreement, the terms of this Agreement shall prevail.
Supplier means the entity that will provide Services to Client, as stated in an applicable Proposal
Supplier Panels means all panels managed, owned and branded by Supplier or Supplier’ Affiliate.
Survey means survey research and analysis of the market for a particular product or service which includes getting feedback from Respondents and completion by respondents of market research questionnaires.
Third Party Panel(s) mean survey panels that are recruited, maintained and administered by a third party with whom Supplier has a separate agreement.
Terms means these terms and conditions contained herein and as contained in a Proposal.
