MetrixLab Global Research Services Terms & Conditions
Last updated: July 19, 2021
These MetrixLab Research Terms & Conditions govern the sale and purchase of MetrixLab Research Services and Deliverables. The applicability of other terms and / or general conditions is expressly rejected and excluded. The MetrixLab Group consists of MetrixLab companies worldwide in the following countries (in alphabetical order): Argentina, Australia, Brazil, China, Colombia, France, Germany, Mexico, Netherlands, India, Italy, Singapore, Spain, Switzerland, U.A.E., U.K., U.S. The MetrixLab Group is headed by MetrixLab B.V., based in Rotterdam, the Netherlands, CoC number 24293853. MetrixLab is part of the Macromill Group, listed at the Tokyo Stock Exchange.
1. DEFINITIONS
1.1 “Agreement”: a signed MetrixLab MSA and/or SOW and/or Proposal signed by MetrixLab and Client. The Agreement will refer to these Terms & Conditions. MetrixLab can update these T&C’s periodically. The applicable version mentions the version date and is always available on request.
1.2 “Research Services”: any research services offered by MetrixLab.
1.3 “Deliverable”: a research report and/or other item specified as a Deliverable in the SOW, such as a datafile, data feed, a dashboard, or a presentation.
1.4 “Research Parameters”: the scope, schedule, milestones and sample feasibility in connection with any Research Services and/or Deliverables.
1.5 “Research Project”: Research Services and Deliverables offered either on a standalone basis or offered as part of a bundled service offering, such as a combination of sample products, custom panels, and/or subscription products.
1.6 “Client Materials”: any form of data files originating from or sent by client, Client proprietary files, segmentation approaches, communication or packaging materials, or any other materials that Client may furnish to MetrixLab for use under this Agreement.
1.7 “Client Work Product”: the finished Deliverables, excluding any Simulators and Respondent Quality Information therein.
1.8 “Simulator”: a data-calculation worksheet or platform that facilitates scenario runs using a particular dataset (including the formulas embodied therein), incorporated into a Deliverable.
2. TERM AND TERMINATION
2.1 Term. The Agreement will start on the Effective date and end on the Expiration Date if specified (the “Initial Term”). The Agreement will automatically extend for successive renewal terms of one (1) year each (a “Renewal Term”), unless either party gives written notice of non-renewal at least sixty (60) days before the expiration of the then-current term. The Initial and Renewal Terms together are referred to as the “Term”.
2.2 Termination for Cause. Either party may terminate the Agreement when: (a) the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice describing the breach; (b) the other party’s insolvency or bankruptcy proceedings, which are not stayed or dismissed within thirty (30) days after institution; or (c) the other party’s dissolution or ceasing to conduct its business. In addition, parties may terminate the Agreement in case of a breach of the agreed confidentiality clause(s) or an infringement of any Intellectual Property Rights by the other party.
2.3 Early Termination of Research Project by Client. Client can terminate a Research Project upon sixty (60) days’ prior written notice, only on the following conditions as stated in this article. After receipt of a termination notice, MetrixLab will determine the percentage of the Research Project completed as per such date (the “Completion Percentage”) and notify Client thereof. Client will pay to MetrixLab an early termination fee calculated as follows: (a) the total fee amount for the entire Research Project (the “Total Project Fees”) multiplied by the Completion Percentage (the result, the “Prorated Project Fees”); plus (b) all direct and external costs and expenses actually incurred by MetrixLab prior to the effective date of termination; plus (c) fifteen percent (15%) of the difference between the Total Project Fees and the Prorated Project Fees.
2.4 Changes to or discontinuation of MetrixLab Research Services and/or Deliverables. MetrixLab reserves the right to discontinue or make substantial changes to any of the MetrixLab Research Services and/or Deliverables. MetrixLab shall provide Client at least sixty (60) days prior written notice of any such discontinuation or change.
3. SERVICES AND DELIVERABLES
3.1 Services. MetrixLab will devote all its efforts to provide the Research Services and the Deliverables in accordance with the applicable Research Parameters.
3.2 Affiliates. Research Services may be performed by affiliates and subsidiaries within the MetrixLab Group. No such engagement will relieve MetrixLab from any of its obligations under the agreement with the Client.
3.3 Pass-Through Services. “Pass-Through Services” are services procured by MetrixLab from third-party suppliers for Client’s convenience and on Client’s behalf. These are mentioned as such in the SOW. All Pass-Through Services are arranged by MetrixLab on an “AS IS” basis. MetrixLab assumes no liability relating to such Pass-Through Services. Client shall reimburse all costs for Pass-Through Services, such as honoraria, shipping & handling and product fulfilment costs. MetrixLab may require advance payment of costs for Pass-Through Services, which shall be itemized separately. In such a case, payment is to be made by Client immediately upon receipt of MetrixLab’s invoice regarding such services.
3.4 Client’s Personnel Commitment. Client will ensure that all Client’s personnel who may be necessary or appropriate for the successful delivery of the Research Services will be available to assist MetrixLab by answering business, technical and operational questions and providing requested and / or required documentation in a timely manner. When necessary, Client will be available to contribute to system testing.
4. ACCEPTANCE AND PAYMENT
4.1 Acceptance. Upon the delivery of the Research Services and/or Deliverables, Client shall review conformity within five (5) business days. The Research Services and/or Deliverables will be deemed to have been accepted by Client upon the expiration of this period.
4.2 Payment. MetrixLab will invoice Client for the amounts due in accordance with the applicable SOW. Client shall pay MetrixLab within thirty (30) days of MetrixLab’s invoice date. Client agrees and acknowledges that all prices set forth in the applicable SOW represent best estimates, and that the final invoiced price may reflect an adjustment by MetrixLab to account for minor or unforeseen project changes; provided, however, that no adjustment of more than ten percent (10%) of the estimated fees for the research services is applied without Client’s prior consent. Payments shall be made in the currency specified in the invoice and in immediately available funds. A payment not paid when due may accrue a late fee from the date due until the date paid at 10% per annum, or the maximum rate allowed under the applicable law, whichever is higher.
4.3 Taxes. Client pays and holds MetrixLab harmless from all taxes, fees, duties, and other governmental charges, arising from the payment of the amounts due to MetrixLab under the Agreement. Client shall make all payments of the amounts due to MetrixLab without reduction for any withholding taxes. On reasonable request, Client will provide MetrixLab with tax authority receipts or other such evidence, to confirm such payments.
4.4 Non-conformity. If Client finds any Research Services and/or Deliverables not to be conform, a written notice must be sent to MetrixLab (an email to the primary MetrixLab contact person suffices), detailing the non-conformity (a “Rejection Notice”). The Rejection notice must be sent ultimately five (5) business days after delivery of the relevant Research Service and/or Deliverable. MetrixLab will then use commercially reasonable efforts to correct any such non-conformity in accordance with a timetable to be mutually agreed upon by the parties. If MetrixLab determines that it cannot correctly perform the Research Services and/or Deliverables, it will refund the amounts paid by Client to MetrixLab for such Research Services and/or Deliverables. This Section represents MetrixLab’ sole obligation and Client’s exclusive remedy relating to a non-conformity.
5. LIABILITY
5.1 Limitation of Liability. MetrixLab’s cumulative liability towards the Client in connection with the Agreement, whether in tort or otherwise, will not exceed the amount(s) paid to MetrixLab by Client in particular to that Research Project. Except for a breach of agreed confidentiality clause(s), an infringement of Intellectual Property Rights or a breach by the other party of any obligation under mandatory privacy and data protection laws, in no event will either party be liable for any consequential, indirect, special or incidental damages relating to the Agreement.
5.2 Force Majeure. Any delay in the performance of any obligations of either party (except the payment of money owed) will not be considered a breach if such delay is caused by a labor dispute, epidemics, famines, fire, natural disasters, acts of God, war, riot, terrorism, civil unrest, or any other event beyond the control of such party.
6. INDEMNIFICATION
6.1 By MetrixLab. MetrixLab shall defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a reasonable and substantiated claim that a MetrixLab Research Service and/or Deliverable (a) infringes a copyright or (b) misappropriates any trade secrets recognized as such. This obligation is conditioned on Client notifying MetrixLab promptly in writing of such action, Client giving MetrixLab sole control of the defense thereof and any related settlement negotiations, and Client cooperating and assisting in such defense. Notwithstanding the foregoing, MetrixLab will have no obligation with respect to any infringement claim based on (1) any unauthorized use, reproduction, or distribution of the MetrixLab Research Services and/or Deliverables; (2) data, information, content, or other materials furnished by Client; (3) a combination of MetrixLab Research Services and/or Deliverables with any other items not provided by MetrixLab; (4) any Pass-Through Service; or (5) any modification of the MetrixLab Research Services and/or Deliverables by any person other than MetrixLab or its agents (the foregoing (1), (2), (3), (4), and (5) collectively, the “Excluded Claims”). This Section represents MetrixLab’s entire liability and Client’s sole remedy for infringement claims and actions.
6.2 By Client. Client will defend and indemnify MetrixLab against third party claims, damages, expenses and costs related to: (a) an Excluded Claim; or (b) Client’s breach of the Agreement; or (c) damaging or polluted Client Materials or data files furnished by Client.
6.3 Client customer contact files. When the research concerns Client customer respondents, the contact data file or otherwise access to individual research respondents is provided by the Client (for example via a Survey Candidate List). Client is responsible for delivering sufficient, qualitative and non-damaging data files. Client guarantees that data files containing customer email addresses have been quality checked. If the Client Materials contain false, incorrect, inactive, fake or damaging contact details (such as spam traps in email addresses), MetrixLab cannot be held responsible for not obtaining enough customer feedback. MetrixLab reserves the right to recover damages from Client, resulting of for example lost email-based research time and / or (recovery from) being blacklisted by email service providers due to incorrect, fake or damaging Client Materials.
7. OWNERSHIP AND IP
7.1 All unique methodologies used by MetrixLab in producing the Research Services and Deliverables, all Simulators and all worldwide Intellectual Property Rights therein are the exclusive property of MetrixLab. MetrixLab retains all (Intellectual Property) rights and titles of (a) the MetrixLab Research Services and Deliverables and (b) any documentation, software, samples, and other content or technology provided by MetrixLab to Client in conjunction with the MetrixLab Research Services and Deliverables. Client must not remove, alter, or obscure in any way the proprietary rights notices of MetrixLab or its licensors or suppliers on the MetrixLab Research Services and Deliverables. The Client Work Product is the exclusive property of Client.
7.2 License to Client. MetrixLab grants Client a non-exclusive, worldwide license to use and display Simulators provided as part of the Deliverables, for the sole purpose of running scenarios with the data in the Deliverable.
7.3 License to MetrixLab. Client grants MetrixLab a non-exclusive, worldwide license (a) solely during the term of the agreement to use, reproduce, modify, create derivative works of, distribute, perform, and display the Client Materials and Client Work Product as necessary for purposes of providing the Research Services in accordance with the Research Parameters to Client, and (b) during the term of this Agreement and thereafter, to use, reproduce, distribute, modify, create derivative works of, perform, display, and otherwise exploit aggregated research data contained within the Client Work Product.
8. CONFIDENTIALITY
8.1 Confidential Information. Each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) information regarding the business of the Disclosing Party or of a third party, including technical, marketing, financial, employee and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will clearly mark Confidential Information as “confidential” or “proprietary” or similarly. Regardless however of whether so marked, any information that the Receiving Party knew or should have known, under the circumstances given the nature of the information, was considered confidential or proprietary, will be considered Confidential Information of the Disclosing Party.
8.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information only to the employees, affiliates or contractors who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3 Exceptions. The obligations regarding Confidential Information end if and when such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information when such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the agreement with the Disclosing Party in connection with legal proceedings; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that, to the extent not prohibited by applicable law, the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party at it’s reasonable request and expense, in any lawful action to contest or limit the scope of the required disclosure.
8.4 Return of Confidential Information. The Receiving Party will return or destroy all Confidential Information or control and permanently erase all electronic copies promptly upon the written request of the Disclosing Party or the termination of the Agreement, whichever is first.
9. DATA PROTECTION AND PRIVACY
9.1 Legal Compliance. MetrixLab and Client shall comply with all applicable laws and regulations, including data protection and privacy legislation such as but not limited to GDPR, LGPD and CCPA, in performing its obligations under the agreement.
9.2 Data Processing Agreement. When personal data is shared, a separate Data Processing Agreement is concluded between the parties, indicating the roles of the Controller or joint Controller, the Processor and when relevant any Sub-Processors.
9.3 Consent. In all research operation, MetrixLab informs the individual data subjects in accordance with the applicable privacy laws and obtains the necessary consent, before collecting the research data. Client guarantees that when personal data of its customers or other data subjects is shared with MetrixLab, Client has obtained the necessary consent from the individual data subjects to do so.
10. GENERAL
10.1 Governing Law. The Agreement and the relationship between MetrixLab and Client is governed by Dutch Law.
10.2 Dispute resolution. If disagreement arises between the parties, senior management of both parties shall meet in an attempt to resolve the issue. If the disagreement cannot be resolved in this manner, the parties hereby agree to binding arbitration, in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The place of arbitration will be Rotterdam, the Netherlands. Requests for arbitration may not be brought more than twelve (12) months after the disagreement or controversy has arisen. Each party shall bear its own legal costs and expenses and the parties shall share the arbitration costs equally.
10.3 Compliance. MetrixLab is committed to doing business in an ethical, sustainable and responsible manner. MetrixLab operates in accordance with the MetrixLab Code of Conduct, available on request.
10.4 Insurance. MetrixLab maintains adequate insurance coverage, specific to the applicable business risks and in line with international mandatory legislation: property & computer, public, professional & director liability, cyber risk, employer’s and workman liability.
10.5 Press Releases and Announcements. Either party may make any public disclosure it believes in good faith is allowed or required by law, regulation or stock market rule. The announcing party shall reasonably advise the other party and provide a copy of the disclosure prior to making it public.
