"Subscription Schedule” shall mean any schedule pertaining to the use of Products, which Tes agrees may be used by the Customer from time to time on the terms set out in that Schedule and these Terms (as may be amended from time to time), such Schedule forming part of this Agreement;
“Authorised User(s)” shall mean any person authorised by the Customer and Tes to use the Products and where applicable where log-ins are required, only those to whom log-ins have been specifically assigned;
“Fees” shall mean the fees set out in a Subscription Schedule, subject to Clause 5 of these General Terms of Business;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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, and rights to claim priority from, 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.
2.1 Unless otherwise notified to You, these Terms commence with effect from the date set out in the Subscription Schedule and shall continue for the Initial Period as stated in the Subscription Schedule, at the end of which this Agreement will automatically continue for subsequent periods of 1 year.
2.2 Either party may give the other notice of cancellation of this Agreement no less than 30 days notice before the end of the Initial Period, or with no less than 30 days notice before the end of subsequent periods of 1 year, all such notices of cancellation to be given in writing.
2.3 In the event that a Customer wishes to reduce the Subscription level of a Product, this must be notified in line with the notice of cancellation as defined in 2.2, with effect at the end of the Initial Period or at the end of subsequent periods of 1 year.
2.4 Either Tes or the Customer shall be entitled to terminate these Terms forthwith on giving the other not less than 30 days written notice in the event that the other is in material breach of its obligations under this Agreement and the other party has failed to remedy any such breach which is capable of remedy within such 30 day period.
3.1 The Intellectual Property Rights, including the trademark, copyright and all database rights throughout the world in the Product(s), including responses provided by participants to Surveys, data Summaries and aggregated data sets, shall at all times remain with Tes (and its licensors as appropriate). If the Customer becomes aware of any potential or actual infringement of any of Tes’ rights, it shall immediately notify Tes of that in writing, providing full details of the relevant facts.
3.2 The Customer shall provide all such assistance in relation to the enforcement and defence of Tes’ rights in the Product(s) as shall reasonably be required by Tes and Tes shall meet any reasonable third party expenses incurred by the Customer (provided that they have been notified to Tes’ Company Secretary in advance) in giving such assistance.
3.3 The Customer shall ensure that up-to-date industry standard technical measures and safeguards are in place at all times to prevent unauthorised access to the Product(s). In particular the Customer will ensure that Product access is only granted to Authorised Users.
3.4 The Customer agrees during the Term not to do anything which may bring Tes, or the Products of Tes, into disrepute.
3.5 The Customer shall take all appropriate measures (in consultation with Tes, where appropriate) to safeguard the copyright and Intellectual Property rights of Tes in the Product(s).
4.1 Tes grants a licence to the Customer for use of the Products purchased on a worldwide, non-exclusive basis. No part of the website(s), or any Product, including content, information, documents, logos, names, audio, video or icons may be copied, posted, broadcast, republished or reproduced in any format whatsoever without the prior written permission of Tes or the copyright holders. All copyrights, patents, trade secrets, trademarks - including any and all trademarks registered in any country or territory - logos or any other intellectual property rights owned by one Party prior to the date of this Agreement will continue to be owned by that Party.
5.1 In consideration of the rights granted under this Agreement, the Customer agrees to pay Tes the Fees as set out in the Subscription Schedule in accordance with the payment terms set out in this Clause 5.
5.2 Unless otherwise specified in the relevant Subscription Schedule, invoices for Fees, shall fall due for payment in full within 30 days of the invoice dates.
5.3 All payments to be made under this Agreement shall be made in cleared funds, without deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If You are compelled to make any such deduction, You will pay to Tes such additional amounts as are necessary to ensure receipt by Tes of the full amount which Tes would have received but for the deduction.
5.4 Tes may amend the Fees with effect from the first day of each contract year after the Initial Period with an increase in line with the UK Consumer Price Index (CPI) plus up to 3%. Tes will use the CPI figure published by the Office for National Statistics at the time of calculation. Tes will provide 90 days advance notice of any changes that are in excess of this by providing the Customer with not less than 90 days’ written notice of the amendments via email or post.
5.5 In the event of a delay in making payment, the Customer shall pay Tes interest accruing from day to day calculated at the annual rate of 8% above the base rate of The Bank of England on all such monies overdue from the due date for payment until the actual date of payment.
5.6 In addition, where no payment is made or payment is late in respect of any invoice, for any Product provided to You by Tes, We may at Our sole discretion suspend or permanently remove Your right to access and use any Tes Products.
5.7 In accepting these Terms, You agree that they take precedence over any purchase order (or other) terms You may submit to Tes.
6.1 We will not be liable to You (whether such liability arises in contract, tort (including negligence) or otherwise) for any loss of profits, loss of contracts, loss of anticipated savings, loss of revenue, loss of or damage to data, loss of or damage to reputation or goodwill or any indirect or consequential loss or damages.
6.2 Our maximum liability to You for any loss or damage arising is limited to a maximum of £500 for Customers of solely Transactional Products and to 25% of the amount paid in the calendar year prior to any claim for Customers using all other Products.
6.3 Nothing in the Terms will limit or exclude Our liability for: (i) fraud or fraudulent misrepresentation; (ii) personal injury or death of any person caused by Tes’ negligence; or (iii) any other liability which cannot be excluded or limited at law.
6.4 You agree to indemnify and hold Tes harmless against all losses, costs and expenses (including without limitation all legal fees, damages payments and settlement payments) suffered or incurred by Us in relation to the Terms and as a result of any claims brought by any third party in relation to Intellectual Property Infringement, including trade mark infringement, copyright infringement, design right infringement, and libel, breach of confidentiality, any discriminatory practice, breach of any statutory or regulatory duty, false or misleading advertising or sales practices arising from any advertisement placed on Your behalf and/or any material to which users can link from any website advertisement, any breach by You of any data protection legislation in force in the UK at the relevant time, any breach of the ethical practices requirements set out within the Terms and any breaches relating to anti-bribery and anti-corruption.
6.5 Tes provides no additional warranties, guarantees or conditions, including for merchantability, satisfactory quality, fitness for a particular purpose, title or non-infringement under these Terms. To the extent permitted by law, Tes accepts no liability of any nature whatsoever if, following the use of a Product, a situation occurs where loss or damage is sustained by the Customer (or any of the Customer’s users).
7.1 You agree to comply with all applicable laws, statutes, regulations and codes relating to the Equality Act 2010, anti-bribery and anti-corruption including but not limited to the Bribery Act 2010. You will not: (1) engage in any Corrupt Activity in relation to these Terms; (2) authorise any person to engage in any such Corrupt Activity; or (3) consent to any such Corrupt Activity on the part of any person. You shall also take reasonable steps to ensure that slavery and human trafficking (as such phrase is defined in the Modern Slavery Act 2015 as amended from time to time or any equivalent provision in equivalent legislation in another applicable jurisdiction) is not taking place in any of Your supply chains or in any part of Your organisation. Tes is committed to acting in an ethical and non-discriminatory manner and shall not knowingly assist in any discriminatory recruitment practices. You will also act in accordance with Tes’ Fair Recruitment Policy which can be found at www.tes.com.
8.1 Confidential Information means the information contained in this Agreement, other than that which is publicly available, and additionally all information in whatever form which is disclosed by one party to the other in connection with this Agreement. It shall also incorporate applicant/candidate information such as an individual's CV or employment history, disclosed by an applicant and/or their agent to a party to these Terms, in connection with an advertisement, which is marked as confidential or by its very nature should be treated as being confidential.
8.2 Each party to these Terms will treat in confidence all Confidential Information and will not disclose in whole or part any Confidential Information to any person unless such person is also bound by equivalent terms of confidentiality to those set out in the terms of this clause; or use any Confidential Information for a purpose other than for the exercise of its rights or the performance of its obligations under this Agreement.
8.3 However, either party may disclose any Confidential Information: (i) to its own personnel and professional advisors to the extent required for the proper performance of its obligations under this Agreement (where the relevant personnel are informed of the confidential nature of the information and are subject to appropriate confidentiality undertakings); (ii) to a 3rd party Business Partner engaged by the Customer and as notified to Tes; and (iii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.2 We agree to comply with UK General Data Protection Regulation (UK GDPR), the Data Protection Act 2018 (DPA 2018), the Privacy and Electronic Communications Regulations (“PECR”), the Privacy Act 1988 (Cth), the EU General Data Protection Regulation (Regulation (“EU GDPR”), and any other applicable data protection legislation in relation to the Products you are purchasing from us.
9.3 Tes Data Processing Agreements apply to Products purchased.
10.1 When the Terms and Subscription Schedule are terminated, Tes may remove or take down any advertisements in place or published at that time, and will cease access to all Products.
10.2 Should the Customer require continued access to Data in the Product(s) following notice to terminate the Agreement, they must download and retrieve such Data prior to the Termination Date. Following the expiry of the Agreement, the Data in the Product(s) will no longer be available for access or retrieval.
10.3 All Product provision will end after Termination of the Terms.
11.1 Severability – if any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
11.2 Assignment – You will not, without Our prior written consent, assign, transfer, charge, sub-contract or deal in any other way with all or any of Your rights under the Terms.
11.3 The Contracts (Rights of Third Parties) Act 1999 - shall not apply to these Terms and no third party will have any right to enforce or rely on any provision of these Terms.
11.4 Waivers - no failure or delay by either party or time or indulgence given in exercising any remedy or right under or in relation to these Terms will operate as a waiver of the same. Neither will any single or partial exercise of any remedy or right stop any further exercise of the same or the exercise of any other remedy or right. No waiver by either party of any requirement of the Terms, or of any remedy or right under the Terms, will have effect unless given in writing and signed by such party. No waiver of any particular breach of the provisions of the Terms will operate as a waiver of any repetition of such breach.
11.5 Entire Agreement – these Terms (together with any documents referred to or required to be entered into in connection with to these Terms and any Subscription Schedule(s) provided to you) set out the entire Agreement between the parties and supersede all prior Agreements, understandings or arrangements (both verbal and written) relating to the subject matter of these Terms. No other provisions other than those contained in these Terms (or any documents referred to or required to be entered into in connection to these Terms) will be binding on the parties unless expressly agreed to in writing by an authorised representative of Tes. Specifically, no advice or information provided by or on behalf of Tes will create any warranty or other obligation not expressly stated in these Terms and Conditions. These Terms (together with any documents referred to or required to be entered into pursuant to these Terms) set out the full extent of Tes’ obligations and liabilities. In particular, there are no terms as to satisfactory quality, fitness for a particular purpose or of any other kind whatsoever. Any condition or other term which might otherwise be implied into or incorporated into these Terms whether by statute, common law or otherwise, is hereby excluded to the fullest extent permissible at law.
11.6 Force Majeure - a Force Majeure Event will mean any event or circumstance that is beyond the reasonable control of the affected party, including, but not limited to, flood, subsidence, terrorist act, pandemic, fire or war, failure or shortage of power supplies, acts of government and industrial action of any kind. Where either party is affected by a Force Majeure Event, it will not be under any liability to the other party for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay is caused by the Force Majeure Event. The affected party will be entitled to a reasonable extension of time for performing its relevant obligations. The corresponding obligations of the other party will also be suspended.
11.7 Jurisdiction – any dispute or claim arising out of these Terms or in connection with their subject matter will be governed by and construed in accordance with the laws of England and Wales. The parties agree that the Courts of England will have exclusive jurisdiction to settle any claim or dispute that arises out of or in connection with this Agreement or its subject matter.