“Acceptance” means written, oral or other acceptance (including the provision of a purchase order number by Client) by Client of a Proposal for Services or Deliverables. “Ad-hoc Services” means one-off custom market research or bespoke consultancy services provided by One Picture which are not Continuous Services.

“Affiliate” means any legal entity that directly or indirectly: (i) is Controlled by that party; (ii) Controls that party; or (iii) is under substantially common Control and in relation to The One Picture Group is trading as “One Picture” from time to time and under the common Control of One Picture.

“Agreement” means these terms and conditions together with the applicable Proposal and any appendices constitutes the entire agreement between the parties. In the event of a conflict, these terms and conditions prevail over those in the Proposal.

“Client” means the party to whom the One Picture provides the Services as per the applicable Proposal.

“Client Data” means any Materials provided by the Client to One Picture.

“Confidential Information” means all information, data or material of whatsoever nature in any form, which either party, discloses to the other pursuant to this Agreement (including the Proposal and anything the receiving party creates which is derived from or based upon the information, data or materials disclosed to it by the disclosing party).It shall not include any information or materials which: (a) is in or enters into the public domain (other than as a result of disclosure by the receiving party or any third party to whom the receiving party disclosed such information); (b) were already in the lawful possession of the receiving party prior to the disclosure by the disclosing party;
(c) are subsequently obtained by the receiving party from a third party who is free to disclose them to the receiving party; or (d) are required to be disclosed by law or regulatory authority.

“Continuous Services” means custom continuous tracking market research or consultancy services, and which are not Ad-hoc or Multi-Customer Services provided by One Picture.

“Control” (including “Controlled by” and “under common Control”) as used means the ownership, directly or indirectly, of a majority of the voting shares of such entity or is the ability (directly or indirectly) to appoint a majority of the directors of such entity or the authority to direct the management or policies of such entity, by contract or otherwise.

An entity that otherwise qualifies under this definition will be included within the meaning of “Affiliate” even though it qualifies after the execution of this Agreement. “Deliverables” means the specific tangible documentation, work product and other materials that are created solely for Client and expressly identified as such in a Proposal and delivered to Client by or on behalf of One Picture while performing the Services, excluding all Multi-Customer Services and Respondent Data.

“Expenses” means those out-of-pocket expenses incurred by One Picture in the course of providing the Services and not expressly included in the Fee.

“Fee” means the total fee(s) to be paid One Picture for the provision of the Services to the Client set out in the Agreement.

“Feedback” means all suggestions, comments recommendations, improvements or any other feedback based on the Services and Deliverables provided by Client to One Picture.

“Intellectual Property Rights” or “IPR” means all trade secrets, patents and patent applications, rights to inventions, copyright (including rights in computer software)and related rights, moral rights, database rights, semiconductor topography rights, utility models, rights in designs, trademarks, service marks, trade or brand names, internet domain names, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) rights in goodwill or to sue for passing off, and all other intellectual property and proprietary rights and other similar or equivalent rights or forms of protection in each case whether registered or unregistered and including all applications (or rights to apply) for, for renewals and extensions of, such rights as may now or in the future exist anywhere in the world.

“Materials” means information, output, documents, reports, data, programmes, plans, products, advertising materials (including appended data, information databases, calculated scores and specialized database applications), software, algorithms, source code, object code, research tools, product taxonomies and dictionaries, questionnaires (and all software applications, databases, computer programs, including source code and object code for any such programs used to program survey questionnaires), analytical techniques and frameworks, methodologies, norms, formulae, works, questionnaires and template questionnaires, systems, computer programs, including application software, platforms, audio and visual tapes and computer records prepared by or on behalf of One Picture during the course of providing the Services enhancements, supporting documentation and other work processes and information, whether in hard copy or digital format.

“Multi-Customer Services” (if applicable) means the non-custom continuous market research service using One Picture Materials and provided by One Picture to one or more clients.

"One Picture” means The One Picture Group and all its subsidiaries and brands located in New Zealand, Australia, and the United Kingdom and in all locations it serves.

“One Picture Materials” means (i) Materials belonging to One Picture which exists at the date of execution of a Proposal or issuance of a Client purchase order; (ii) Materials developed by or on behalf of One Picture independently during the term of a Proposal which are not Deliverables and have not been created solely for performance of the Services to Client; (iii) proposals and designs for studies incorporated in a Proposal (iv) data and content developed or collected by or licensed to One Picture prior to or outside the scope of this Agreement or having a generic nature or otherwise being of general applicability to One Picture’s business; and (v) Respondent Data. All copies, reproductions, improvements, modifications, adaptations, translations, Feedback, and all other derivative works of, based on or otherwise using any One Picture Materials are themselves also One Picture Materials. As between One Picture and Client, One Picture shall own all Intellectual Property Rights in and to One Picture Materials.

“Proposal” means the written proposal and/or quotation (exclusive of GST/VAT unless otherwise stated) provided by One Picture to the Client, which Proposal shall be valid for acceptance for thirty (30) days from the date of issue.

“Public Statement” means to make any advertising, marketing, press releases, correspondence with any third parties or similar external communications that contain the whole or any part of the Deliverables or Services.

“Respondents” means individuals responding to market research questions and stimuli and otherwise providing various services to One Picture for the benefit of One Picture’s clients.

“Respondent Data” means all Materials provided by Respondents including answers to survey questions.

“Services” means Ad-hoc Services, Continuous Services, Multi-Customer Services (as the case may be) as specified in the applicable Proposal.

“Subcontractor” means any third party to whom One Picture has delegated any function or obligation to provide the Services or Deliverables to Client excluding One Picture’s Affiliates.

“Term” means the agreed minimum period of the Services as outlined in the applicable Proposal.
In these terms and conditions, a reference to the singular includes plural and vice versa (unless the context otherwise requires) and the words and expressions “other,” “including” and “in particular” (or any similar word or expression) do not limit the generality of any preceding words.

1  Term and Termination

1.1 The Agreement shall commence once One Picture starts providing Services or Deliverables and shall continue in effect until terminated in accordance with this Section

1. Either party may terminate the Agreement immediately for cause, if: (a) a party breaches a material obligation of this Agreement and fails to remedy the breach within thirty (30) days of written notice being given to the breaching party; (b) the defaulting party (which term shall include the holding company or ultimate parent company of the defaulting party) becomes bankrupt or goes into liquidation (whether voluntary or compulsory), is dissolved, compounds with its creditors or has a receiver, administrative receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution, for the making of an administrative order, the winding-up, bankruptcy or dissolution of the defaulting party or the defaulting party suffers any similar process under the law of its domicile or place of its jurisdiction.

1.2 Either party may terminate this Agreement without cause: (i) with three (3) months written notice for Ad-Hoc Services; or (ii) with six (6) months written notice for Continuous Services and Multi-Customer Services following the expiration of the initial subscription period. If One Picture is unable to or finds it impracticable to continue any Multi-Customer Services or any part of it, One Picture shall be entitled to terminate the Agreement by serving thirty (30) days’ notice at any time. Upon the termination of the Agreement, Client shall continue to owe and shall remain liable for any and all Services rendered, Deliverables delivered and any pre-approved out of pocket expenses incurred (on behalf of Client) by One Picture for which Client has not yet rendered payment, including, without limitation, non-cancellable third party charges for services that One Picture has obtained or committed to obtain on Client’s behalf prior to the effective date of termination.

1.3  Upon termination of this Agreement, unless otherwise agreed by One Picture, all invoices which have already been submitted by One Picture will become payable and refunds for payments made which exceed the fees on the date of termination shall be at One Picture’s sole, reasonable discretion. Where the Agreement has been terminated by One Picture, One Picture shall liaise with the Client regarding the orderly handover of the Services to the Client or a replacement provider.

2 Fees; Payment of Fees

2.1 Continuous Services and Multi-Customer Services. Payment of the basic annual fees will be made in monthly instalments in advance, commencing on the date of Acceptance.

2.2 Expenses. One Picture shall be entitled to recover reasonable Expenses incurred pursuant to the provision of the Services subject to copy receipts being retained by One Picture (and provided to Client upon written request) unless such expenses have been expressly stated in the Agreement as being included in the Fee.

2.3 Incomplete/Incorrect Information from Client. If the Fee has been based upon information provided by the Client which is subsequently shown to be incomplete or incorrect, One Picture shall be entitled to increase the Fee to take account of any resulting additional time involved in providing the Services (or additional services) and any necessary additional costs incurred by the Company.

2.4 Changes. The Client further acknowledges that any changes to the Services or Deliverable beyond that originally notified to One Picture and anticipated by the proposal may incur additional fees and/or Expenses which will be agreed in writing between One Picture and the Client prior to such change.

2.1 Payment. Unless otherwise agreed in writing, payment is for 75% of the project value including incentives upon commissioning, the remainder of the value of the project value including expenses is payable upon completion and presentation of the project. If the commissioning project value is below the equivalent of NZD20,000 (or equivalent in quoted currency) an invoice for the full value will be issued upon commissioning of the project. Overdue payment could result in a delayed start to the work commissioned or a halt to any work in progress. One Picture reserves the right to charge interest at a rate of 4% above the base rate of Westpac Bank (or equivalent local bank) from time to time commencing from the date of the invoice if payment is not received as above. Invoices must be paid within (30) days of the date of the invoice. One Picture reserves the right to charge interest at a rate of 4% above the base rate of Westpac Bank (or equivalent local bank) from time to time commencing from the date of the invoice if payment is not received as above. All payment to be made in the currency shown on the invoice.

2.6 Taxes; Deductions. If any amount payable to One Picture is subject to any forms of tax, charge, duty, withholding, deduction, rate, levy and governmental charge (whether national or local) in the nature of tax whatsoever and whenever created, enacted or imposed by any governmental, state, federal, local municipal or other body, together with all related fines, penalties, interest, charges and surcharges , that amount shall be increased so as to ensure that the net amount received by One Picture shall, after tax, be equal to that which would have been received had the payment and any increased payment not been subject to tax.

2.7 Currency. Unless expressly stated otherwise in the Proposal, the Fee is proposed and payable in NZD, GBP Sterling or Australian Dollars, or the One Picture local currency equivalent. For projects involving currencies other than NZD, GBP or AUD, the Fee quoted in the Agreement will be calculated based on an indicative exchange rate. This fee is subject to change due to exchange rate movements prior to the formation of the Agreement at which time Agreement normally obtains forward cover. Should delay on the part of the Client or other factors outside Agreement’s control affect this procedure and involve Agreement incurring additional costs not envisaged at the time of formation of the Agreement reserves the right to adjust the Fee. Where the Client is late in paying any sums due to Agreement hereunder and such overdue payment results in Agreement incurring additional costs due to exchange rate movements, then Agreement reserves the right to pass on these costs to the Client. Any extra costs referred to above shall be confirmed by Agreement to the Client from time to time in writing.

2.8 Unforeseen Costs. One Picture reserves the right to charge for additional unforeseen costs incurred as a result of statutory amendments to rates of pay, taxes or duties or any other circumstances outside the control of One Picture, including, but not limited thereto, war, civil disturbances, strikes or capricious behaviour of the authorities. Furthermore, if at any time the Client requests that any aspect of the Services set out in the Proposal (including timing) be changed, One Picture reserves the right to adjust the Fee accordingly.

2.9 Revisions. One Picture reserves the right to revise quotations or estimates or make additional charges in the event of: (a) changes to timing; (b) Client delays in providing materials or necessary information; (c) changes to interview length; (d) changes to methodology; (e) restrictive recruitment criteria or detailed quotas not stated when the estimate was provided; (f) changes to materials after approval for proceeding has been given; (g) any other changes made during the course of project; or (h) increase exceeds 15% or $20,000NZD (or equivalent in quoted currency) whichever is deemed lower of the previous agreed Fee. If such increase exceeds 15% of the previous agreed Fee, the Client shall, providing that it does so within seven (7) days of receipt of notification of the revised Fee, be entitled to serve immediate notice of termination of the Agreement. However, in such an event the Client shall be liable to pay One Picture that part of the Fee that relates to all work undertaken, and for any non-cancellable third-party costs incurred and/or committed to by One Picture up to the date of termination.

2.10 Translation Costs. Final costs will be based on final word count and an estimate will be provided prior to commencement of the translation.

2.11 Incidence Rate. If the incidence rate varies more than 10%, costs and feasibility may need to be revised.

2.12 Incentives. Incentives will be charged at cost plus a 10% administration fee unless otherwise stipulated. 

3 Change, Delay or Cancellation

If Client requests changes to the Services or Deliverables, One Picture reserves the right to revise the fees and timelines accordingly. If a Service is terminated early in accordance with Section 1 above by Client, the final invoice will include, the balance of the fees for the remainder of the subscription period plus any reasonable costs and expenses committed by the One Picture prior to the change in Service, or any set-up costs not yet invoiced. Client is responsible for the prompt delivery to One Picture of all Client Data reasonably required by One Picture to provide the Services and Deliverables. If Client fails to comply with this Section, Client shall be liable for the consequential delays and any additional costs and expenses incurred by the One Picture to provide the Services and Deliverables.

4 Subcontracting

One Picture may subcontract the Services or part of the Services to a Subcontractor provided that One Picture shall be primarily responsible for the performance of the Services by any Subcontractor. Nothing in this Agreement shall be construed to create a contractual relationship between Client and any Subcontractor, nor any obligation of Client to pay or to ensure payment of any money due any Subcontractor. Respondents shall not be considered Subcontractors of One Picture in connection with this Agreement and Client agrees that given the nature of the Services, One Picture shall not be liable for the acts of Respondents. If Client designates a specific subcontractor, then One Picture shall not be responsible for the accuracy, completeness, or quality of the work of that subcontractor.

5 Representations

Each party represents and warrants that: (a) it has the authority to enter into the Agreement and that the performance of its obligations hereunder will not breach any other contract by which it is bound; and (b) it will comply with all applicable laws, regulations, rules, codes, and judicial orders. One Picture represents and warrants that use of the One Picture Materials as provided by One Picture to Client, used in the manner contemplated by the Proposal and in accordance with the terms hereof, will not infringe any third party IPR if used in accordance with the terms of this Agreement and the applicable Proposal. Client represents and warrants that: (a) use of the Client Data by One Picture as provided by Client to One Picture in the manner contemplated by the Proposal will not infringe the IPR of any third party; (b) it has or will obtain or grant in writing (email being sufficient) from either Client, Client’s agent or other Client - authorized third party (as applicable) all necessary consents and approvals required for One Picture to provide the Services and Deliverables, including the right for One Picture to use a tracking pixel to measure the advertising and otherwise provide the Services and to use the data provided to or collected by One Picture as part of the Services and Deliverables; (c) Client shall be solely responsible for soliciting advertisers, if applicable, trafficking of the advertising and providing recruitment inventory; (d) it will implement language and establish a consent process that complies with all applicable laws; (e) for any effectiveness studies to be conducted by One Picture under a Proposal, Client will be in compliance with all applicable laws, rules, orders and regulations, including, without limitation, those related to consumer privacy; and (f) Client Data provided to One Picture by or on behalf or Client (and, if applicable, its advertisers) advertising, promotional and marketing activities in connection with the use of the Services, shall not be deceptive, misleading, obscene, defamatory, illegal, unethical or otherwise violate the rights of a third party, and shall comply with all applicable laws, rules, orders and regulations. Except for the express warranties in this agreement, each party hereby disclaims all warranties, whether express, implied, statutory, or other, under or in connection with this agreement or any subject matter hereof.

6 Ownership and Public Statements

6.1 Client has and reserves and retains, sole and exclusive ownership of all right, title and interest in and to the Client Data, including all IPR arising or relating to the Client Data. Client Data is the Confidential Information of Client. Client grants One Picture a license to use, perform, display, execute, distribute, transmit, modify (including create derivative works), import, Client Data solely for the purposes of performing the Services. Client hereby grants One Picture a perpetual, worldwide, royalty-free, irrevocable license to copy, distribute, resell, modify and otherwise use the Client Data in connection with the provision of Services and Deliverables. One Picture may not disclose Client Data in a manner which identifies Client, except to a publisher with whom Client has chosen to use the Services. All other rights in and to the Client Data are expressly reserved by Client.

6.2 One Picture has and reserves and retains, sole and exclusive ownership of all right, title and interest in and to the One Picture Materials and Multi-Customer Services, including all IPR arising or relating to One Picture Materials and Multi-Customer Services. One Picture may use Materials resulting from the Services or collected in the course of or in connection with providing the Services or Deliverables for; (i) its own internal purposes, as part of its own databases and for purposes connected with its business, including for purposes of establishing industry norms, conducting case studies and industry; (ii) One Picture’s provision of products or services to publishers; or (iv) as required by law or legal process. One Picture grants Client a worldwide, non- sublicensable, non-transferable, royalty free license to One Picture Materials incorporated in the Deliverables or otherwise necessary for Client to use the Services and Deliverables solely for (i) internal purposes and not for publication or other distribution or communication to the public (unless expressly authorised in writing by One Picture); and (ii) solely for the purposes of the relevant project and in the manner envisaged by the Proposal. All other rights in and to the One Picture Materials and
Multi-Customer Services are expressly reserved by One Picture.

6.3 Except as otherwise set out in this Section 6, in relation to One Picture’s Ad-Hoc Services and Continuous Services, Client shall, upon receipt by One Picture of full payment for the Services and Deliverables under the applicable Proposal, be the sole and exclusive owner of all right, title and interest in and to the Deliverables, including all IPR therein. Client will be entitled to use the Deliverables for its bona fide and proper internal business purposes. Client agrees and acknowledges that neither One Picture nor its personnel shall retain any IPR in the Deliverables. Client acknowledges and agrees it will not use any Deliverables for public relations, sales, or marketing purposes in conjunction with One Picture’s name or brand without One Picture’s prior permission in writing. Client will not publish or disclose the Deliverables to any third parties in any manner which exaggerates, distorts or misrepresents the information or data provided by One Picture or in a manner likely to harm One Picture’s reputation.

6.4  With respect to data that is publicly available on social media and other non- traditional media, including but not limited to: use of user and other third party content in social media and on other websites such as Facebook; and websites of editorial content providers of sponsored stories and branded content, such as Frame; and editorial content used on blogs, other advertorial content (“Social Media”), neither party shall be restricted (as between the parties) regarding the use of aggregated Social Media. Deliverables may include and be based upon aggregated Social Media. Notwithstanding anything herein to the contrary: (i) Social Media is not the property of One Picture or Client; (ii) One Picture does not make any representations or warranties regarding Social Media, including its accuracy and completeness.

6.5 Client is not entitled to receive Respondent Data . In a study using certain One Picture products, in each case as determined by One Picture in its sole discretion, Client may be entitled to receive aggregated final results of the applicable study, subject to applicable privacy laws and any other limitations on use in this Agreement and may also receive qualitative conclusions that are determined from, derived from, or based upon the aggregated Respondent Data in a manner that does not identify any individual. Any Personal Information in the Respondent Data is not the property of One Picture or Client.

6.6 Client agrees and acknowledges that it must inform One Picture in writing prior to the commencement of any work by One Picture, if Client intends to make any Public Statement. If upon completion of the Services and Deliverables, Client wants to make a Public Statement, then Client must present the Public Statement for One Picture’s review and written approval of such external use of the Services and Deliverables. If Client makes a Public Statement in breach of this Section 6.6, including study findings that are incorrect, distorted or incomplete in One Picture’s opinion, One Picture shall have the right to make its own release of any or all study findings for clarification purposes, without being in breach of this Agreement.

6.7 The parties shall be entitled to list the other as its’ service provider or Client in marketing/promotional material, except for this right the Client shall have no right to use the One Picture’s name, trademarks, logos, or slogans without the prior written consent of the One Picture.

7 Confidentiality

7.1 Confidential Information. If a party receives or acquires Confidential Information directly or indirectly under this Agreement, it shall be referred to as the “Receiving Party;” if a party discloses Confidential Information under this Agreement, it shall be referred to as the “Disclosing Party.” During and after the term of this Agreement, the Receiving Party shall (i) hold the Disclosing Party’s Confidential Information in confidence using the same degree of care that it uses to protect its own Confidential Information (but in no event less than a reasonable degree of care), (ii) use the Disclosing Party’s Confidential Information solely in connection with performing its obligations hereunder, and (iii) not disclose or make available any of the Disclosing Party’s Confidential Information to any employee or other third-party without the prior written consent of the Disclosing Party except to a limited number of its employees, consultants, subcontractors and legal advisors who have a need to know the Disclosing Party’s Confidential Information in order to perform its obligations under this Agreement. Additionally, the Receiving Party may disclose the financial terms of this Agreement to its legal and business advisors and to potential investors provided such third parties agree to maintain the confidentiality of the Confidential Information. Each party shall ensure that any individual or entity receiving Confidential Information for or on behalf of the Receiving Party will be bound by terms at least as protective of the Disclosing Party’s Confidential Information as those contained in this Agreement. Receiving Party will notify the Disclosing Party promptly of any unauthorized use or disclosure of the Disclosing Party’s Confidential information and provide reasonable assistance to the Disclosing Party and its licensors in the investigation and prosecution of such unauthorized use or disclosure. Whenever requested by a Disclosing Party and in any event upon the expiration or termination of this Agreement, a Receiving Party shall immediately, at its own expense, return to the Disclosing Party all manifestations of the Disclosing Party’s Confidential (except: (i) as otherwise required by applicable law; (ii) if the return or destruction of such Confidential Information is not commercially reasonable or feasible; or (iii) in accordance with its internal document retention and back-up policies, in which case, the Receiving Party obligations in this Section 7 shall continue until such time as such Confidential Information is returned or securely destroyed) or at Disclosing Party’s option destroyed, at its own expense, all such Confidential Information as the Disclosing Party may designate and deliver to Disclosing Party a certification, in writing signed by an officer of the Receiving Party, that all such Confidential Information has been destroyed.
www.onepicture.com for more details

7.2 Data Protection. Receiving Party agrees to implement all appropriate technical and organizational security measures to protect Personal Information (as defined in the Data Protection Policy (“DPP”) appended to this Agreement as Exhibit A) against accidental or unlawful destruction, against unauthorized or unlawful disclosure or access, and against accidental loss, alteration, or damage. The terms of the DPS shall govern the parties’ obligations in relation to the treatment of Personal Information.

7.3 Injunctive Relief. In the event of an actual or threatened breach of these confidentiality provisions, the parties agree that the non-breaching party will have no adequate remedy at law and shall be entitled to seek immediate injunctive relief and any other equitable relief, without the necessity of showing actual monetary damages. The rights and obligations of the parties under this Agreement expire three (3) years after the effective date of expiration or termination; provided that with respect to Confidential Information that constitutes a trade secret under the laws of any jurisdiction, such rights and obligations will survive such expiration or termination until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or its representatives.

7.4 Records Retention for Confidential Information. Receiving Party agrees to implement all appropriate technical and organizational security measures to support records retention requirements. Receiving Party shall (i) return to the Disclosing Party or destroy all originals or copies of the Disclosing Party’s Confidential Information in hard copy or format; and (ii) delete and erase all original and copies of the Disclosing Party’s Confidential Information in electronic or other non-hard copy form, format, or media.

7.5 Records Retention for Other Data. Records retention requirements for data other than Confidential Information are as follows: (i) Client data (primary records) will be held for a maximum of 12 months after which all data is systematically deleted, except if the Client has other records retention requirements; and (ii) secondary records will be held for 2 years after submission of final deliverables or 2 years after the completion of services set out in a Proposal.

7.6 Costs. A minimum fee of NZD100(or equivalent in quoted currency) will be charged for the retrieval of documents for projects completed more than 1 year prior to such request.

8 Liability and Indemnity

8.1 Neither party will be liable to the other party (or to any person or entity claiming through the other party) for any special, incidental, indirect, consequential, exemplary, or punitive damages or any lost profits arising out of or in any manner connected with this Agreement or the subject matter hereof, regardless of the form of action and whether or not such party has been informed of or otherwise might have anticipated the possibility of such Damages. In no event shall One Picture’s aggregate liability arising out of or relating to this Agreement regardless of the basis (including breach of contract, tort (including negligence) or otherwise) on which a party is entitled to claim Damages from the other Party exceed the cumulative amount of payments received or due to One Picture from Client under the relevant Proposal in the twelve (12) month period immediately preceding the date upon which the cause of action first arose. The limitations of liability set forth in this Agreement shall not apply to Damages for any liability that cannot be limited or excluded by law.

8.2 If conclusions, findings, Deliverables, or recommendations (“Conclusions”) are required of One Picture as part of the Services, such Conclusions are solely and exclusively an opinion and are based on variable assumptions used in the field of market research and forecasting and are based on a controlled test environment. While Conclusions are the result of careful analysis and thorough work procedures, Conclusions constitute a single factor among many to be considered by Client. Conclusions are prepared for Client’s internal use only and One Picture expressly disclaims any liability for any use of or reliance on Conclusions by any third parties. In no event shall One Picture be liable to Client (or any third parties) for any Damages whatsoever with respect to any Conclusions made by One Picture in relation to the Services. Client hereby acknowledges that it shall be solely responsible for the consequences of any action taken by it based on Conclusions or the interpretation of such Conclusions

8.3 Where the Services involves testing or using Client’s products , samples or test materials (including prototypes) and/or third party products supplied by Client, Client warrants, represents and undertakes that (i) any content, packaging or labelling shall comply with all relevant laws in all relevant territories; and (ii) Client shall be solely responsible for either providing any Respondent consent or approving any draft Respondent consent prepared by One Picture which may be required for the products, samples or test materials in question. One Picture shall not be liable in any circumstances for the use of, loss of or damage to any such products, samples or test materials, once they have been supplied to Respondents.

8.4  One Picture shall indemnify, defend and hold harmless Client from and against any and all third party claims, lawsuits, actions, liabilities, and expenses (including taxes, fees, fines, penalties, interest, reasonable expenses of investigation and attorneys’ fees and disbursements) as incurred (collectively “Damages”) arising out of or in connection with: (i) any claim that: the One Picture Materials as provided by One Picture to Client and Client’s authorized use of the One Picture Materials infringes (whether directly, contributorily, by inducement or otherwise), misappropriates or violates a party’s or other entities IPR; or (ii) any breach of any obligation for which One Picture is responsible as employer of its employees.

8.5 Client shall indemnify, defend and hold harmless One Picture from and against any and all Damages directly or indirectly arising out of or in connection with any claim that: (i) the Client Data provided by Client to One Picture and One Picture’s authorized use of the Client Data infringes (whether directly, contributorily, by inducement or otherwise), misappropriates or violates a party’s or other entities IPR; (ii) any breach of any obligation for which Client is responsible as employer of its employees; (iii) any breach arising from Client’s or its personnel’s use of the Services or Deliverables for a different purpose or outside the terms of this Agreement; or (iv) testing or using such Client products, samples or test materials under Section 8.3.

8.6 Liability under this indemnity clause is conditional on the Indemnitee complying with this Section 8.6. If an indemnified party (“Indemnitee”) seeks indemnification under this Agreement, the Indemnitee shall (i) give prompt notice to the indemnifying party (“Indemnitor”) of a claim and the Indemnitor shall assume the defence of such claim; (ii) grant authority to Indemnitor to defend or settle any related action or claim and (iii) provide at Indemnitor’s expense, such information, co-operation and assistance to Indemnitor as may be reasonably necessary for Indemnitor to defend or settle the claim or action. An Indemnitee’s failure to give prompt notice shall not constitute a waiver of the Indemnitee’s right to indemnification and shall affect Indemnitor’s indemnification obligations only to the extent that Indemnitor’s rights are materially prejudiced by such failure or delay. Indemnitee may participate, at its own expense, in any defence and settlement directly or through counsel of its choice and Indemnitor shall not, without the prior written consent of the Indemnitee, enter into any settlement agreement on terms that would diminish the rights provided to the Indemnitee or increase the obligations assumed by the Indemnitee under this Agreement.

9  Deliverables

9.1 One Picture shall provide the Deliverables with reasonable skill and care in accordance with the specification contained in the Proposal and they shall be the result of careful analysis of respondent data and shall have been subject to thorough checks by or on behalf of One Picture in accordance with its quality control policies. Both parties agree to use reasonable endeavours to comply with the ESOMAR Code of Conduct.

9.2 The client acknowledges and accepts that (i) the response rates to surveys/questionnaires cannot be predicted and are not guaranteed by One Picture, (ii) all figures contained in Deliverables will be estimates derived from sample surveys and subject to the limits of statistical errors/rounding up or down; (iii) unless otherwise stated in the Agreement, data collection sample achievement both at a total level and within quota will be within a margin of +/- five percent (5%) of the numbers stated and (iv) translating a Deliverable from the controlled test environment to the real market place, it is possible that some of the assumptions on which a Deliverable is based will not remain constant and any subsequent change in market conditions or to the test product itself, could impact on the initial performance predictions including possible invalidation of the Deliverable(s) in question.

10  Miscellaneous

10.1 Survival. The obligations in this Agreement which by their nature survive termination or expiration of this Agreement shall so survive, including without limitation, the ownership rights,

10.2 Notices. Any contractual notice given hereunder shall be in writing by certified mail; not by email, but non-contractual consents and approvals required may be requested and given by email communication. In the case of the notice to the One Picture, notices shall also be copied to the One Picture’s Legal Counsel and Group Financial Controller. (C) Force Majeure. Except for any payment obligations, neither party shall be liable for failure to perform its obligations hereunder due to conditions beyond its reasonable control, including, but not limited to, fires, storms, riots, strikes, disease, shortages of materials, lock-outs, wars, floods, civil disturbances, terrorism, governmental control, restriction, or prohibition whether local or national, network failures, disputes, cyber-attacks, and malicious acts of third parties. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.

10.3 Entire Agreement. The parties agree that they have not entered into this Agreement in reliance upon any statement, representation, covenant, warranty, undertaking or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) except as expressly set out in this Agreement. This Agreement constitutes the complete understanding of the parties and supersedes all prior or contemporaneous agreements, discussions, negotiations, promises, proposals, representations, and understandings (whether written or oral) between the parties, with regard to One Picture that is not contained in this Agreement.

10.3 Severability. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable under the law of any jurisdiction, that shall not affect or impair: () the legality, validity, or enforceability in that jurisdiction of any other provision of this Agreement; or (ii) the legality, validity, or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.

10.5 No Third-Party Beneficiaries 

10.6 Independent Contractor. Each party shall be and act as an independent contractor and not as a partner, joint venture, or agent of the other in such party’s performance hereunder.

10.7 Governing Law; Jurisdiction. NZ, Australian or UK law governs this Agreement dependant on the location of the One Picture Group contracting entity, and in the event of a dispute the parties agree to submit to the courts of the relevant jurisdiction which shall be exclusive, except with respect of the enforcement of any judgment, where it shall be non-exclusive.

10.8 Electronic Execution. Electronic execution of this Agreement shall be acceptable and binding.

10.9 Cumulative Remedies and Offsets. The rights and remedies provided for in this Agreement are cumulative and shall be in addition (not in lieu of) to any other rights and remedies provided by law or in equity.

10.10 Assignments; Transfers. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except assignment of the Agreement in its entirety or in part to an: (i) Affiliate; (ii) a party’s successor pursuant to a merger, reorganisation, or sale; or (iii) an entity that acquires all or substantially all of a party’s assets. If applicable, Client hereby consents and agrees for all purposes under the Agreement in order to permit any proposed financing, on One Picture’s own behalf and for and on behalf of One Picture’s Affiliates whose consent and agreement to be bound, it represents and warrants that Client are duly authorised to give, to and its Supplier Affiliates assigning, charging, transferring or otherwise disposing of, by the way of security or otherwise, some or all of their receivables arising under, or in connection with, the Agreement. If the assignment is made by either party to a competitor, then the parties agree that the non-assigning party may terminate this Agreement on not less than thirty (30) days written notice to the assignee and the assignor. The assigning party will provide reasonable assistance to the non-assigning party during the transition period.

10.11 Approvals. The Client and One Picture agree that for the purposes of the Agreement, a signature of an authorised signatory on behalf of the Client on materials submitted for approval shall be construed as written approval of that material and messages sent by electronic mail will constitute valid written approval. The Client acknowledges that circumstances may arise where One Picture must act based on verbal authority and accepts that it may do so where authority cannot reasonably be provided in written form.

EXHIBIT A 

Data Protection Policy
This Data Protection Policy (“DPP”) forms part of the Proposal and its Terms and Conditions, between One Picture and its Affiliates and Client with an Effective Date of the applicable Agreement. The parties acknowledge that they are entering into th is DPP pursuant to the provisions of the Agreement The parties further acknowledge and agree that the provisions of the Agreement shall apply to this DPP as though such provisions were set out in their entirety in this DPS and if the terms of this DPP and the Agreement conflict, the terms of this DPS shall take precedence. Capitalized terms not defined in this DPP shall have the meaning defined in the Agreement.

The One Picture Group Data Protection Policy is available separately www.onepicture.com