Terms of use
Terms of use
TERMS AND CONDITIONS
BACKGROUND (A) The Client wishes to receive and MTM London Limited wishes to provide professional, technical, strategy, research, insight and consultancy services as further described in the Front Sheet and any applicable Statement of Work ("SOW"). (B) The parties agree that such services shall be supplied in accordance with these Terms and Conditions. (C) The Front Sheet, these Terms and Conditions and any applicable SOW together constitute the agreement between the parties ("Agreement").
1. DEFINITIONS "Agreement" means the Front Sheet, these Terms and Conditions and any applicable Statement of Work entered into between the parties from time to time.
"Client" means the person or entity identified in the Front Sheet or applicable Statement of Work.
"Confidential Information" means any information disclosed to or obtained by either party in connection with the Services which relates to the business activities, including trade secrets, financial and statistical information and any other similar information, of the other party.
"Fees" means the fees payable by the Client as set out in the Front Sheet or applicable Statement of Work.
"Intellectual Property Rights" means any software, design rights, copyright, patents, trademarks, photographs, database rights and any other similar proprietary rights.
"MTM" means MTM London Limited (company number 05025878) whose registered office is at 2 Stephen Street, London, England, W1T 1AN
"Services" means the professional and technical services to be performed by MTM as set out in a Statement of Work.
"Statement of Work" or "SOW" means a formal signed document which defines the Services agreed between the parties and which shall be undertaken in accordance with this Agreement.
"Term" means the period commencing on the Effective Date and continuing until termination of this Agreement in accordance with its terms.
2. PERFORMANCE OF SERVICES 2.1 MTM will carry out the Services as set out in a SOW either at the Client’s offices or at any other site as may be agreed between the parties from time to time. Where work is undertaken at the Client’s offices the following facilities are required;
a physical location / desk space for MTM’s consultants to carry out their work and provision of access, security clearance and passes to all areas of the Client’s offices where MTM’s consultants will be expected to work
if work is carried out on Consultant laptops, Consultant will require access to the internet from the Client’s offices.
2.2 MTM agrees to provide the Client with the Services as set out in a SOW in accordance with the terms of this MSA.
2.3 MTM shall attempt to accommodate Client requests, but MTM shall have the final and sole responsibility for personnel placement. If specific MTM personnel cease to perform due to illness, resignation or any other reason, MTM shall use good faith efforts to a substantially equivalent replacement. If the Client requests in writing the replacement of any MTM personnel, then completion date(s) for milestones, if any, in the relevant SOW, may be extended by the amount of time required to (i) replace the consultant and (ii) to acclimate the replacement to the Services to be performed, as reasonably determined by MTM.
2.4 If the Client fails to provide, in a timely manner, information, support or assistance reasonably requested by MTM, the completion date(s) for milestones, if any, in the relevant SOW may be extended by a period equal to the delay in Client performance.
2.5 MTM’s pricing and scheduling are based upon the Client’s agreement that it shall (i) provide MTM personnel with timely access to appropriate facilities, space, documentation, networks, files, additional software (if needed), and skilled and knowledgeable Client personnel to assist in the performance of any joint efforts; and (ii) until MTM commences work, use the concepts contained in any proposal or SOW only to evaluate MTM’s suitability to perform and limit disclosure thereof to only those of its personnel that are involved in the evaluation thereof.
3. CONSULTANT WARRANTIES
3.1 MTM warrants that its staff are suitably qualified and experienced in performing the Services and will exercise professionalism and the level of care, skill and diligence in the performance of the Services reasonably expected from persons with similar experience performing Services of a similar nature.
4. SAFETY AND SECURITY
4.1 MTM will ensure that at all times whilst in the Client offices, its consultants shall comply with all safety and security procedures (and any other relevant procedures) of the Client provided that MTM has been notified of all such procedures by the Client.
5. TERMS OF PAYMENT
5.1 MTM will invoice the client on a schedule of 50% upon signing of the SOW by both parties and the balance of 50% upon completion. The first payment will be calculated against the total project estimate contained in this SOW. The final invoice will be for the balance of the project.
5.2 The Client agrees to settle any invoice(s) within 30 days of the date of invoice. In the event that payment in full is not received within 30 days of the date of invoice MTM shall charge interest (at its own discretion) at 4% per annum above the Bank of England base rate, accruing daily.
5.3 Any properly documented and legitimate business expenses incurred on behalf of the Client by MTM will be invoiced to the Client and will be payable within 30 days of receipt of the invoice.
5.4 Without prejudice to any other rights to which MTM may be entitled, in the event that the Client unlawfully terminates or cancels the services agreed to in the Service Specification, the Client shall be required to pay to MTM as agreed damages and not as a penalty the full amount of any third-party costs to which MTM has committed. In respect of cancellations on less than five working days’ written notice the full amount of the services contracted for as set out in the SOW is payable. The Client agrees this is a genuine pre-estimate of MTM’s losses in such a case. For the avoidance of doubt, the Client’s failure to comply with any obligations under Clause 2.5 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.
5.5 In the event that the Client or any third party, not being a sub-contractor of MTM, shall omit or commit anything which prevents or delays MTM from undertaking or complying with any of its obligations under this Agreement, then MTM shall notify the Client as soon as possible and;
5.5.1 MTM shall have no liability in respect of any delay to the completion of any project;
5.5.2 If applicable, the timetable for the project will be modified accordingly;
5.5.3 MTM shall notify the Client at the same time if it intends to make any claim for additional costs.
5.6 MTM may set off any sums owed to it by the Client against any amounts payable by MTM. Third party costs shall be paid directly by the Client or, where paid by MTM, shall be invoiced and payable immediately notwithstanding any other payment terms.
6. LIMITATION OF LIABILITY
6.1 The total liability of MTM whether in contract or tort (including negligence) or arising in any other way will not exceed the total fees paid by the Client under the SOW giving rise to the claim in the 12 months preceding the event giving rise to the claim.
6.2 Subject to 6.3 below neither party will be liable for any loss of profits, loss of data, loss of revenue or savings whether direct or indirect nor will either party be liable for any indirect, incidental or consequential losses of any kind in connection with the terms of this Agreement.
6.3 Nothing in this Agreement shall limit or exclude either party’s liability for fraud or for death or personal injury caused by that party’s negligence.
6.4 If MTM is liable to the Client (or to any others for whom Services are provided) under this MSA or otherwise in connection with the Services, for loss or damage to which any other persons have also contributed, its liability to the Client shall be several, and not joint, with such others, and shall be limited to its fair share of that total loss or damage, based on its contribution to the loss and damage relative to the others’ contributions. No exclusion or limitation on the liability of other responsible persons imposed or agreed at any time shall affect any assessment of MTM’s proportionate liability hereunder, nor shall settlement of or difficulty enforcing any claim, or the death, dissolution or insolvency of any such other responsible persons or their ceasing to be liable for the loss or damage or any portion thereof, affect any such assessment.
6.5 Each party shall take reasonable steps to mitigate its losses.
7. CONFIDENTIAL INFORMATION AND DATA PROTECTION
7.1 Both parties agree that neither it, nor any of its servants or agents, shall divulge or communicate to any person, firm or company (other than professional advisers) any Confidential Information acquired as a result of carrying out the Services without the prior written consent of the other party. MTM undertakes to ensure that upon termination of this Agreement or any extension of it, or at any time when requested by the Client, that it shall return all copies of Client materials, including although not limited to documentation and security passes.
7.2 Clause 7.1 shall not apply to any information that:
7.2.1 Is in the public domain other than through a breach of this Agreement;
7.2.2 Is required to be disclosed by law;
7.2.3 Is obtained by the recipient party from a bona fide third party having the right to dispose of such information;
7.2.4 Has already been independently generated by the recipient party.
7.3 Unless prohibited by applicable law, MTM may disclose Confidential Information to third parties providing services on its behalf who may collect, use, transfer, store or otherwise process it (collectively “Process”) in the various jurisdictions in which they operate for purposes related to this Agreement, to comply with regulatory requirements, to check conflicts, for quality, risk management, or financial accounting purposes and/or for the provision of other administrative support services (collectively “Process Purposes”). MTM shall be responsible for maintaining the confidentiality of such Information.
7.4 For the Process Purposes referred to above, MTM and third parties providing services on MTM’s behalf may Process Personal Data in various jurisdictions in which they operate. MTM will process Personal Data in accordance with applicable law and professional regulations including (without limitation) the UK GDPR and the Data Protection Act 2018 and will require any service provider that processes Personal Data on its behalf to adhere to such requirements.
8. USE OF DELIVERABLES
8.1 Any information, advice, recommendations or other content of any reports, presentations or other communications MTM provides under this Agreement (“Deliverables”) are for the Clients internal business purposes only (consistent with the purpose of the particular Services).
8.2 All usage rights are conditional upon payment in full of all fees and expenses.
8.3 Client may not disclose a Deliverable (or any portion or summary of a Deliverable), or refer to MTM in connection with the Services, except:
8.3.1 to Client’s lawyers (subject to these disclosure restrictions), who may review it only in connection with advice relating to the Services,
8.3.2 to the extent, and for the purposes, required by law (and Client will promptly notify MTM of such legal requirement to the extent it is permitted to do so), or
8.3.3 to other persons (including Client affiliates) with MTM’s prior written consent, who may use it only as specified in such consent.
8.4 If Client is permitted to disclose a Deliverable (or a portion thereof), it shall not alter, edit or modify it from the form provided by MTM.
8.5 To the fullest extent permitted by applicable law, Client shall indemnify MTM against all claims by third parties (including Client affiliates) and resulting liabilities, losses, damages, costs and expenses (including reasonable external and internal legal costs) arising out of a third party’s use of or reliance on any Deliverable disclosed to it by or through the Client or at the Client’s request.
8.6 Where the Client reviews and approves any Deliverable (including by email or use), such approval confirms that the Deliverable materially meets the specification.
8.7 Following such approval, the Client assumes responsibility for its use MTM shall not be liable for errors or issues which were reasonably identifiable prior to the approval.
9. CLIENT WARRANTIES AND INDEMNITY
9.1 The Client warrants that:
9.1.1 all materials, information and data provided by or on behalf of the Client to MTM in connection with the Services comply with all applicable laws, regulations and codes of practice;
9.1.2 such materials, information and data do not infringe the Intellectual Property Rights or other rights of any third party; and
9.1.3 all information provided by or on behalf of the Client is accurate, complete and not misleading in all material respects.
9.2 The Client shall indemnify and keep indemnified MTM against all losses, claims, damages, costs and expenses (including reasonable legal fees) arising out of or in connection with any breach of this clause.
9.3 Where MTM identifies a legal, regulatory or compliance risk in relation to the Services or any Deliverable and the Client instructs MTM to proceed notwithstanding such risk, MTM shall have no liability in respect of that risk and the Client shall indemnify MTM accordingly.
10. TERM AND TERMINATION
10.1 Term and Survival: The term of this MSA commences on its Effective Date and shall remain in effect unless terminated as provided below. Upon any termination of this MSA, Sections 6, 7, 8, 10 and 11 shall survive in accordance with their terms. Termination of this MSA or any SOW shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Client of its obligation to pay all fees and expenses for all Services performed, including any deliverables associated with such Services, as of the date of termination.
10.2 Immediate Termination: This MSA and associated SOW may be terminated immediately by notice in writing:
10.2.1 by MTM if the Client fails to pay any sums due under this MSA within 30 days of receipt of any invoice;
10.2.2 By either party if an order is made or resolution passed for winding-up of the other party or an application is made for administration (or filing of documents with the court in support of such an application) in relation to the other party, or the other party’s directors make a proposal for a voluntary arrangement or the other party makes or seeks to make any composition or arrangement with its creditors or is unable to pay its debts or a receiver or an administrative receiver is appointed over all the assets of the other party or any substantial part of its assets or if the other party ceases or threatens to cease to carry on business.
10.3 Termination for Convenience: Either party may terminate this MSA for convenience by providing the other with written notice, which termination shall become effective ninety (90) days after receipt of such notice by the other party. Should the Client terminate this Agreement in respect of any Services by giving 90 days’ notice, the Client agrees to pay to MTM in addition to any fees payable up to the date on which the notice is given, all fees incurred up to termination, all fees accruing during the notice period, and all committed third-party costs which MTM would have charged to the Client based on the rates and timetable set out in any SOW for the 90 days following such notice of termination;
10.4 Termination for Breach: Either party may notify the other in writing in case of the other's alleged breach of a material provision of this MSA and/or an applicable SOW. The recipient shall have forty-five (45) days from the date of receipt of such notice to effect a cure. If the recipient of the notice fails to effect a cure within such period, then the sender of the notice shall have the option of sending a written notice of Immediate Termination of the applicable SOW.
10.5 Termination of this MSA shall not affect any SOW in force, which shall continue in full force and effect until completion unless terminated in accordance with its terms.
11. EMPLOYMENT PENALTY CLAUSE
11.1 The Client (which for this purpose includes any holding, or subsidiary company of the Client) undertakes not to directly or indirectly solicit, employ or engage any employee, freelancer or consultant of MTM who has been materially involved in the provision of the Services. If any employee, freelancer or consultant of MTM accepts employment or a contract (which for this purpose includes employment or provision of services as an independent contractor or otherwise) with the Client during the term of this Agreement or within six (6) months of ceasing to be an employee, freelancers or consultant of MTM, the Client shall immediately pay to MTM a recruitment fee equal to the individuals total annual remuneration (including salary and the value of all benefits) at the time of engagement, plus Value Added Tax.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 For the purposes of this Agreement the parties agree that Intellectual Property Rights shall be divided into “Client Rights” and “Consultant Rights”.
12.2 Client Rights: MTM acknowledges that any Intellectual Property Rights created to meet the specific needs of the Client in delivering the Services including but not limited to any title or ownership rights shall vest in the Client upon payment of all fees and expenses subject to the Client granting MTM a perpetual, irrevocable, non-exclusive, royalty free, sub-licensable, worldwide license to use for any purpose in any media any raw data, source data, data survey responses, datasets and other research data collected, generated or compiled by MTM which are created in the delivery of the Services.
12.3 Consultant Rights: The Client acknowledges that any Intellectual Property Rights (other than Client Rights) created or provided by MTM either prior to or during delivery of the Services including but not limited to any title or ownership rights will at all times and for all purposes remain vested in MTM. MTM grants to the Client a non-transferable, non-exclusive license to use MTM Rights created for an indefinite term and for its own internal purposes.
12.4 Intellectual Property Rights Indemnity. MTM shall (i) defend Client against any third-party claim that the Services and the related materials provided by MTM to Client infringe a patent, or a copyright, and (ii) pay the resulting costs and damages finally awarded against the Client by a court of competent jurisdiction or the amounts stated in a written settlement signed by MTM. Client shall (i) defend MTM against any third-party claim that the materials provided by Client or its agents for use by MTM infringe a patent, or a copyright and (ii) pay the resulting costs and damages finally awarded against MTM by a court of competent jurisdiction or the amounts stated in a written settlement signed by Client.
12.5 The foregoing obligations are subject to the following: The Client (a) notifies MTM promptly in writing of such claim, (b) grants MTM sole control over the defence and settlement thereof, (c) reasonably cooperates in response to MTM’s request for assistance, and (d) is not in material breach of this MSA.
12.6 Should such a claim be made, or in MTM’s opinion be likely to be made, then MTM may, at its option and expense, (1) procure for the Client the right to make continued use thereof, (2) replace or modify such so that it becomes non-infringing, or (3) request return of the subject material. MTM shall have no liability under this Section to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of the subject Services and/or materials with third party products or services, (B) use for a purpose or in a manner for which the subject Services and/or materials were not designed, (C) any modification to the subject Services and/or materials made by anyone other than MTM, (D) any modifications to the subject Services and/or materials made by MTM pursuant to the Client’s specific instructions, or (E) any technology owned or licensed by the Client from third parties. This section states the Client’s sole and exclusive remedy and MTM’s entire liability for third party infringement claims.
13. GENERAL TERMS
13.1 Entire Agreement and Variation of Terms. This Agreement represents the entire agreement between the parties. No variation of the terms of this Agreement shall be valid unless made in writing and signed by a Director or authorised representative of both the Client and MTM
13.2 Severability. If any of the provisions of this Agreement are judged to be illegal or unenforceable to any extent, then that provision will to that extent be severed from the remaining terms which will continue to be valid and will remain in full force and effect.
13.3 Waiver. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of contractual terms will be deemed to be a waiver of any other right or of any later breach.
13.4 Assignment. Neither party may assign this Agreement without the prior written consent of the other party such consent not to be unreasonably withheld or delayed.
13.5 Notices. Any notice given under this Agreement must be in writing and may be delivered either by hand, or by recorded delivery to the addresses set out in the MSA or SOW or other address as may be notified to the other party. Any such notice will be deemed to have been served, if delivered by hand, at the time of delivery, if by recorded delivery on the second day after it was sent.
13.6 Force Majeure. Neither party will be liable to the other party for any delay in or failure to perform its obligations (other than payment of money) as a result of any cause beyond its reasonable control. If such delay or failure continues for at least 90 days, either party will be entitled to terminate the Agreement by notice in writing.
13.7 Rights of Third Parties. This Agreement is not intended to be for the benefit of third parties and shall not be exercisable by any other person under the Contracts (Rights of Third Parties Act) 1999.
13.8 Data Protection. Both parties agree that they will observe all their respective obligations in accordance with the UK GDPR and the Data Protection Act 2018 which arise in connection with this Agreement, if any.
13.9 Marketing
13.9.1 MTM is entitled to refer to the Client on MTM's websites, and in all press releases and marketing materials.
13.9.2 In the event that MTM wishes to use details of the Services in a Case Study for the purposes of promotion and marketing then it will be entitled to do so, subject to obtaining the written consent of the Client, such consent not to be unreasonably withheld or delayed.
13.10 Pre-Printed Terms. All terms of any purchase order or similar document provided by the Client, including but not limited to any pre-printed terms thereon and any terms that are inconsistent, add to, or conflict with this MSA and/or any SOW, shall be null and void and of no legal force or effect.
13.11 Applicable Law. This Agreement shall be governed by the law of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.