terms and conditions
In these Terms and Conditions:
Documents mean any written material prepared by Fifty-five 5 (including, but not limited to, work plans, proposals, presentations, and reports)
computer software or other property related to the Project.
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Participant means a person that participates in a market research study conducted by us.
Project means the market research study or other consulting services requested by you the scope and nature of which are described in the Proposal.
Proposal means the attached document.
You, are the client.
Us or We, refers to Fiftyfive5, the provider of research and consultancy services.
Parties, refers to Fiftyfive5 and You the client
- Terms and Conditions
- The Agreement and all attached schedules constitute the entire agreement of the Parties and supersede any prior or contemporaneous understanding, agreements, whether oral or in writing between the Parties. The Parties agree to be bound by these Terms and to abide by the provisions set out therein
- Quoted Fees
- Fees quoted in the Proposal (Agreed Fee) are valid for a period of 30 days from the date of the Proposal after which time they may be subject to change.
- Unless otherwise stated, all fees are in AUD and all fees, disbursements or other sums payable by you are quoted exclusive of GST. You must pay GST in addition to any Agreed Fee that is GST exclusive.
- The Agreed Fee is based on our best estimate of incidence of target sample, questionnaire length, sample structure, timing requirements and our assumed role in the preparation, management (including meetings) and reporting of the study. We reserve the right to revise our quote for the Project at any time if the scope of the Project extends beyond that which is detailed in the Proposal or because You require Us to complete a market research study or other consulting services that are not set out in the Proposal.
- Payment of Fees
- You must pay 75% of the Agreed Fee (+GST) before we start work on the Project.
- On delivery to you of the final briefing the 25% balance of the Agreed Fee (+GST) is payable
- A tax invoice will be provided for each of the two-part payment in accordance with a and b above.
- You agree to pay us the amounts shown in our tax invoices within 14 days of the date of those invoices.
- If you do not pay our tax invoice by the due date, we may suspend work on the Project until you have paid the amount of the outstanding tax invoice in full.
- Terms and conditions specific to Tracking Projects will be detailed in a Tracking program statement of Works.
- Unless stated otherwise in the Proposal, all disbursements incurred in the course of working on the Project including (but not limited to), travel, accommodation, interstate and international taxis, international phone calls, VIP couriers, stimulus material preparation, venue hire, equipment hire and video production will be invoiced to you, in addition to the Agreed Fee and are also payable within 14 days of the date of invoice.
- Project Postponement or Cancellation
- Any changes that you initiate to the Project timetable may incur a postponement fee. This will be estimated inclusive of any reasonable estimates of direct costs that can not be rescheduled and consulting time required to pause & restart the project.
- In the event the Project is cancelled by you, we reserve the right to render a tax invoice to you for all costs and executive time incurred on the Project up to the time that a written notice of cancellation is received from you by Fiftyfive5, and will include costs to wind up any ongoing expenses we may reasonably incur as may be the case of continuous programs of work.
- Fiftyfive5 agrees to comply with the Australian Market & Social Research Society’s Code of Professional Behaviour and the Market and Social Research Privacy Principles when executing the Project.
- Fiftyfive5 agrees to comply with ISO 20252 and is accredited with an expiration date of 11th December 2021. Future accreditation will be organised before the current expiration date.
- Contract Creation
- The acceptance of our Proposal by you constitutes an order on us to undertake the Project to which it relates. No binding agreement between Fiftyfive5 and you will come into existence until we have given notice of our acceptance of the order made by you. If there is any inconsistency between these Standard Terms and Conditions and what is set out in the Proposal, the terms and conditions of the Proposal operate to the extent of the inconsistency.
- Collection costs
- In addition to any other amounts that you may have agreed to pay, you will pay us any expenses, costs or disbursements incurred by us in recovering any outstanding monies, including debt collection, agency fees and legal fees from you.
- Limitation of Liability
- We are not responsible for the parameters of the Project which are set by you. While we will accurately record Participant’s answers, we do not verify, and are not responsible for verifying, that Participant’s answers are accurate, true, complete and not misleading.
- Conditions and warranties implied by law which cannot be excluded apply, but only to the extent required by law. All other implied conditions, warranties and rights, including any implied by custom, usage or other circumstances are expressly excluded.
- To the extent permitted by law, our liability for breach of such warranties or conditions is limited (and as we, in our absolute discretion, determine) to:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
- We are not liable to you in respect of any indirect loss or consequential loss suffered by you (including, but not limited to, any loss of profit or business opportunity).
- In addition, and to the full extent permitted by law, our total liability to you, and persons carrying on business through you, whether arising under contract, in tort by breach of statute (or liability under or implied by statute), or otherwise will not in any circumstances exceed the fees which you have paid to us in relation to the Project which has given rise to the liability. This limit applies irrespective of the number of claims or events (even if linked) giving rise to them.
- We are not liable to you for any consequences as a result of communicating with you by email including any interference with the email by a third party or any delay or non-delivery of the email.
- We will make reasonable efforts to meet the Project schedule set out in the Proposal. However, times specified are only approximate and not binding on us.
- Force Majeure
- We will not be liable to compensate you for any loss suffered, consequential or otherwise, as a result of any delay or failure to perform our obligations in respect of the Project following the occurrence of an event that is beyond our reasonable control. These events include but are not limited to, failure of our sub-contractors and/or suppliers to deliver to deliver any merchandise or perform any service, acts of God, war, strikes, black-outs, accidents, fire, natural catastrophes or other disasters over which we have no control.
- We will not disclose, without your permission, during or after completion of the Project, any confidential information resulting from the Project commissioned and paid for by you. These restrictions cease to apply to any confidential information which may (otherwise than by our default) become available to the public generally.
- Any information that we disclose to you, either orally or in writing, is disclosed in confidence. Further, all ideas expressed in our presentations and/or written reports are our confidential information and must not be disclosed to any third party by you without our prior written consent.
- For the purpose of this clause, confidential information includes any information that is notified to the recipient as confidential, marked as confidential by the disclosing party or that is otherwise clearly confidential information of the disclosing party.
- We reserve the right, subject to the confidentiality obligation in clause 11(a), to work for or accept retainers from other clients in a business which competes directly or indirectly with your business
- Intellectual Property
- Subject to clause 13(b), a single use licence, to use the copyright in our written reports, in your business (other than for the purpose of its resale) is granted to you when all of our fees have been paid and cleared in full but under that licence.
- You acknowledge that the limited copyright licence in our written reports that is granted to you does not include any copyright that subsists in processes used (or techniques developed) by us in executing the Project (including but not limited to, scales, questioning approaches, data collection approaches, analysis techniques and analysis frameworks).
- All copyright otherwise subsisting in our documents (other than the written report you receive) belongs to us and is not assigned to you.
- You must not disclose or reproduce by any means (including electronically, mechanically, micro-copying, photocopying, recording or otherwise) or offer for sale any of our reports to a third party, either wholly or in part, without our prior written consent.
- Our Staff
- You must not solicit, procure, direct, or otherwise be instrumental in the recruitment of our staff without our prior written agreement. If our agreement is given, then you agree to pay to us the equivalent of one year’s salary of the staff member recruited.
- You indemnify us, to the extent that the claim arises in respect of this agreement out of your breach of another party’s intellectual property rights, for any claims brought by a third party against us for a breach of their intellectual property rights, including copyright.
- Governing Law
- The contract between us and the client, its meaning and interpretation and the relationship between the parties are to be governed by the laws of the state of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
- Alternative dispute resolution
- If any dispute (Dispute) arises out of or in relation to our agreement with you, we both must comply with this clause.
- A party claiming that a Dispute has arisen must give written notice (Dispute Notice) to the other party setting out the nature of the Dispute.
- The parties must endeavour in good faith to settle the Dispute between themselves within 7 days of receipt of the Dispute Notice.
- If the Dispute is not settled as set out in sub clause (17c), the parties agree to settle the Dispute by arbitration administered by the Australian Commercial Disputes Centre (ACDC) in accordance with the arbitration rules of ACDC.
- The arbitration will be held in Sydney.
- The arbitrator’s decision will be final and binding on the parties.
- Nothing in this clause prevents a party from seeking urgent interlocutory injunctive relief before an appropriate court.
- Fifty-Five Five New Zealand Pty Limited
In the event of Fifty-Five Five New Zealand Pty Limited invoicing the client the provisions of this agreement are amended as follows:
- The definition of GST is changed to the meaning given to it in the Goods & Services Act 1985.
- In Clause 2b NZD replaces AUD.
- In Clause 16 all references to Australian courts are replaced with New Zealand courts.
- Clause 17 is replaced as follows:
- Any dispute or difference arising out of or in connection with these terms and conditions, or the subject matter of these terms and conditions, including any question regarding its existence, validity or termination (“the Dispute”) will first be referred to mediation. Upon the Dispute being referred to mediation, the parties will agree on a suitable person to act as mediator. In the event the parties fail to agree on the identity of the mediator within ten business days from the date upon which the Dispute is referred to mediation, then the mediator will be appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc, upon the application of any party. The mediation will be conducted in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc in force at the time the Dispute is referred to mediation.
- If the Dispute is not resolved by mediation in accordance with the above provisions, the Dispute will be referred to and finally resolved by arbitration. The arbitration will be conducted in accordance with the Arbitration Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc in force at the time the Dispute is referred to arbitration. The arbitral tribunal will consist of one arbitrator to be agreed upon by the parties. If the parties fail to agree on the identity of the arbitrator within ten business days from the date upon which the Dispute is referred to arbitration, then the arbitrator will be appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc, upon the application of any party. The place of the arbitration will be Auckland.
- Clauses 4 and 5 of the Second Schedule to the Arbitration Act 1996 (concerning determination by the High Court of preliminary points of law, and appeals to the High Court on questions of law) are excluded by the parties.
- Fifty-Five Five Asia Private Limited
In the event of Fifty-Five Five Asia Private Limited invoicing the client the provisions of this agreement are amended as follows:
- The definition of GST is changed to the meaning given to it in the Goods and Services Tax Act, Chapter 117A of Singapore.
- In Clause 2b SGD replaces AUD.
- In Clause 16 all references to Australian courts are replaced with Singapore courts.
- Clause 17 is replaced as follows
- Any dispute or difference arising out of or in connection with these terms and conditions, or the subject matter of these terms and conditions, including any question regarding its existence, validity or termination (Dispute) will first be referred to mediation at the Singapore Mediation Centre (SMC) in accordance with SMC’s Mediation Procedure in force for the time being. Any party may submit a request to mediate to SMC upon which the other party will be bound to participate in the mediation within  days thereof. In the event the parties fail to agree on the identity of the mediator within ten (10) business days from the date upon which the Dispute is referred to mediation, then the mediator will be appointed by SMC upon the application of any party. Every party to the mediation must be represented by senior executive personnel, of at least the seniority of a Head of Department or its equivalent, or an authorised person, with authority to negotiate and settle the Dispute. Upon the Dispute being referred to mediation, the parties will agree on a suitable person to act as mediator. The mediation will take place in Singapore in the English language and the parties agree to be bound by any settlement agreement reached.
- If the Dispute is not resolved by mediation in accordance with the above provisions, the Dispute will be referred to and finally resolved by arbitration. The arbitration will be conducted in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC) in force at the time the Dispute is referred to arbitration, which rules are deemed to be incorporated by reference to this Clause. The arbitral tribunal will consist of one arbitrator to be agreed upon by the parties. If the parties fail to agree on the identity of the arbitrator within ten (10) business days from the date upon which the Dispute is referred to arbitration, then the arbitrator will be appointed by the Chairman of the time being of SIAC. The place of the arbitration will be Singapore and the language of arbitration shall be English.