THIS MARKET RESEARCH & CONSULTING SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. YOUR EXECUTION OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective between You and Babbage as of the Effective Date of the Order Form.
- DEFINITIONS. The terms defined below and throughout the Agreement shall have the following meanings:
“Affiliate” means any entity, which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this document and its corresponding Order Form(s), any exhibits and/or addenda.
“Babbage” means Alexander Babbage, Inc.
“Deliverable(s)” means the deliveries to be made to You as part of each Order Form, including without limitation, each tangible report (by pdf or print) which may be stated as the information delivery mechanism associated with the Services as stated in each Order Form.
“Fees” are the fees for the Services as described in an Order Form and are payable as stated in the Order Form and in this Agreement.
“Market Research & Consulting Services” or “Services” means the market research and consulting services, provided utilizing the Research Methodology expressly indicated in an Order Form as well as including all Deliverables described in the Order Form.
“Order Form” means the document for placing orders hereunder which are entered into between You and Babbage from time to time, including, addenda and supplements thereto, all of which shall be incorporated by reference. The Order Form will state the Timetable for delivery of the Services, including without limitation the Term, all exclusions from the Services, the Fees and such other information agreed upon by Us. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were You, the original party hereto. Order Forms shall be deemed incorporated herein by reference. The terms and conditions stated herein shall apply to all Order Forms.
“Property” means the physical property or event at which certain Research Methodologies will be conducted but only if stated in the Order Form.
“Research Methodology” refers to the method by which data will be collected in connection with the Services as indicated on the Order Form.
“Term” means the date the first Order Form is executed and continues thereafter so long as any active Order Form remains outstanding between Babbage and You.
“Timetable” refers to the time period after acceptance of the Agreement by You and payment of applicable Fees that Babbage will perform the Services.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.
“Us” means Babbage and You and/or Your Affiliates.
2.1. Provision of Services. Babbage will deliver the Services to You pursuant to this Agreement and the relevant Order Form on the Timetable and during the Term, subject to the payment of the Fees.
2.2. Additional or New Services.
Upon Your written request from time to time and for an additional charge paid by You to Babbage, You may purchase additional Services from Babbage, including without limitation, special research projects, educational workshops, seminars and other consulting services (the “Additional Services”). All Additional Reports and Services shall be pursuant to new executed Order Form and will be controlled by the provisions of this Agreement and the special terms listed in the applicable Order Form. No Additional Services shall be commenced or provided without an executed Order Form. Modifications to any Order Form which changes the Fees or Services must be agreed mutually agreed to by Us in an amended Order Form.
- YOUR RESPONSIBILITIES
3.1. Your Responsibilities. You represent and warrant to Babbage (a) You have the full power, authority and legal right necessary to enter into, execute and deliver the Order Form and the Agreement, (b) You possess all rights necessary to authorize Babbage to perform the Services; (c) the Agreement has been duly and validly entered into, executed and delivered by You (d) the Agreement constitutes the legal, valid and binding obligation of You, enforceable within its terms; and (e) if this Agreement entails access to a Property for data collection, You are the owner or rights holder of the Property or You are a duly authorized agent of the owner of the Property and have the authority to access and all rights necessary to provide all data and information required for Babbage to perform the Services.
3.2. Project Manager & Assistance. Only those Services specified in the Order Form will be provided by Babbage. You will assist Babbage in meeting all stated deadlines through the assignment of personnel who will be responsible for the projects described in the Order Form and for providing Babbage with information and access to resources and facilities necessary to perform the Services. You will appoint a representative who will be available to Babbage on a priority basis and shall have the authority necessary for the effective performance of this Agreement.
- FEES AND PAYMENT FOR SERVICES
4.1. Fees. You shall pay all Fees specified in all Order Forms executed amongst Us. Except as otherwise specified herein or in an Order Form, (i) Fees are based on Services purchased and not actual usage, and (ii) payment obligations are non-cancelable and Fees paid are non-refundable.
4.2. Invoicing and Payment. All charges for Services shall be paid as stated in the Order Form. Babbage will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Babbage and notifying Babbage of any changes to such information.
4.3. Overdue Charges. If any charges are not received from You by the due date, then at Babbage discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Suspension of Service and Acceleration. If any amount owing by You under an Order Form for Services is 30 or more days overdue, Babbage may, without limiting Babbage’s other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. Babbage will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 11.2 (Manner of Giving Notice), before suspending Services to You.
4.5. Payment Disputes. Babbage will not exercise Babbage rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6. Expenses. You shall reimburse Babbage for all third party and out-of-pocket (including travel and living) expenses incurred by Babbage in performing Babbage obligations to You under an Order Form. All payment obligations for such services and expenses shall be as stated in this Section 4.
4.7. Taxes. Unless otherwise stated, Babbage fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Babbage has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Babbage with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Babbage is solely responsible for taxes assessable against it based on Babbage income, property and employees.
- PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Babbage reserve all rights, title and interest in and to the Services and Deliverables, including all related intellectual property rights. No rights are granted to You under this Agreement other than as expressly stated herein. Notwithstanding the rights reserved above, You shall own and shall be permitted to retain all data specific to You, property or event (as the case may be) collected and generated hereunder, as well as all tangible reports described as part of the final Deliverable(s) in the Order Form. Notwithstanding the above, all right, title and interest in and to the questionnaire content and table designs related to any surveys, focus groups, online panels and all non-specific, aggregated data collected hereunder is and shall be owned by Babbage.
6.1. Definition of Proprietary Information. As used herein, “Confidential Information” means all nonpublic proprietary information other than Trade Secrets (defined below), of value to its owner, as well as any data or information defined as a Trade Secret but which is determined by a court of competent jurisdiction to not be a trade secret under applicable law. Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms. “Trade Secrets” means information such as business processes, product plans and designs and technology and technical information which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Collectively, hereinafter “Confidential Information” and “Trade Secrets” is referred to as “Proprietary Information.” Proprietary Information, which is disclosed by a party hereunder to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Proprietary Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of the Proprietary Information.
6.2. Protection of Proprietary Information. Each party agrees with the other (i) to hold the Proprietary Information in the strictest confidence, (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, subject to the provisions of subsection (iv) below, (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement, and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for effective performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent. Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement, and shall exercise due care to monitor and ensure compliance with this Agreement. The nondisclosure and confidentiality obligations set forth in this Section 6 shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of five (5) years after termination hereof.
6.3. Compelled Disclosure. A party receiving Proprietary Information (“Receiving Party”) may disclose Proprietary Information of the disclosing party (“Disclosing Party”) if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Proprietary Information.
- WARRANTIES AND DISCLAIMERS
7.1. Babbage Warranties. Babbage represents and warrants that it (i) has sufficient expertise, training and experience to satisfactorily accomplish the Services and the Services will be performed in a professional and workmanlike manner, and (ii) Babbage has validly entered into this Agreement and has the legal power to do so.
7.2. Your Warranties & Acknowledgements.
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES ARE PROVIDED “AS IS” AND “WHERE IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ON INFRINGEMENT.
- MUTUAL INDEMNIFICATION
8.1. Indemnification by Babbage. Babbage shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Deliverable(s) and Services as delivered hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Babbage written notice of the Claim Against You; (b) give Babbage sole control of the defense and settlement of the Claim Against You (provided that Babbage may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Babbage all reasonable assistance, at Babbage expense. In the event of a Claim Against You, or if Babbage reasonably believes the Deliverable(s) or Services may infringe or misappropriate, Babbage may in Babbage discretion and at no cost to You (i) modify the Deliverables and/or Services so that they no longer infringe or misappropriate, without breaching Babbage warranties under “Babbage Warranties” above, or (ii) obtain a license for Your continued use of Deliverables or Services in accordance with this Agreement and the corresponding Order Form.
8.2. Indemnification by You. You shall defend Babbage against any claim, demand, suit or proceeding made or brought against Babbage by a third party alleging (i) that Your provision of any information or data in the performance of the Services infringe or misappropriate the intellectual property rights of a third party or violates applicable law; and (ii) for any loss, injury or death of a Babbage representative as a result of the performance of the Services on any Property described in an Order Form (collectively, a “Claim Against Babbage”), and shall indemnify Babbage for any damages, attorney fees and costs as a result of, or for any amounts paid by Babbage under a court-approved settlement of, a Claim Against Babbage; provided that Babbage (a) promptly give You written notice of the Claim Against Babbage; (b) give You sole control of the defense and settlement of the Claim Against Babbage (provided that You may not settle any Claim Against Babbage unless the settlement unconditionally releases Babbage of all liability); and (c) provide to You all reasonable assistance, at Your expense.
8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
- LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT WITH REGARD TO INDEMNIFICATION, BABBAGE’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO AN ORDER FORM AND/OR THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU UNDER THE ORDER FORM RELATED TO WHICH THE CAUSE OF ACTION ARISES AND IN NO EVENT SHALL BABBAGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE ORDER FORM AND THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THE ORDER FORM RELATED TO THE ACTION. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR SERVICES). IN NO EVENT SHALL BABBAGE BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL BABBAGE HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT BABBAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- TERM AND TERMINATION
10.1. Term. This Agreement commences on the date You execute the Order Form and continues thereafter for the Term.
10.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding continues for more than one hundred twenty (120) days. Babbage may terminate any Order Form and the Agreement if You fail to pay Fees due under an Order Form with the first ninety (90) days after its Effective Date.
10.3. Surviving Provisions. Section 4 (Fees and Payment for Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Return of Your Data), 11 (Governing Law, Venue and Notice), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
10.4 Return of Data. Upon termination and at the request of the owner of Proprietary Information, the receiving party will confirm destruction of Proprietary Information provided in connection with delivery of the Services.
- Governing Law, Venue and Notice.
11.1 Governing Law & Venue. The laws of the State of Georgia shall govern this Agreement, without regard to conflicts of law. Any action related to or arising out of this Agreement shall be venued solely in the Federal District Court for the District of the Northern District of Georgia and the parties irrevocably commit to the jurisdiction of said courts.
11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).
- GENERAL PROVISIONS
12.1. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Babbage employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify our Finance Department (firstname.lastname@example.org)
12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.6. Attorney Fees. The prevailing party in any dispute arising under or in connection with this Agreement shall be entitled to a reimbursement by the losing party of its costs and expenses in connection with such dispute, including without limitation, reasonable attorneys’ fees.
12.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct Alternate of the other party.
12.8. Force Majeure. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that they are unable to perform and is directly or indirectly due to any cause or circumstance beyond the reasonable control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute. The party affected by an event of Force Majeure shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.
12.9. Entire Agreement. This Agreement, including all exhibits, addenda and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.