Terms and Conditions

Please Note: Subject to any variation agreed by the parties in writing, these terms and conditions are the only terms and conditions upon which Octopus Surveys Pty Ltd (“Octopus Group”) is prepared to deal with the Client and they shall govern the contractual relationship between the parties to the entire exclusion of all the other terms and conditions. In the event of any conflict between the terms and conditions set out below and those set out in the Proposal, the terms set out in the Proposal shall take precedence.

1. Definitions and interpretation

In these terms and conditions (except where the context otherwise requires) the following words shall have the following meanings:

Agreement: means, collectively, the terms and conditions set out below and those set out in the Proposal

Client: the client, whose details are set out in the attached Proposal

Confidential Information:

the ideas, techniques, systems, processes, trade secrets, designs, know-how, specifications, inventions, methodologies and procedures developed by Octopus Group or any of its Related Entities (as defined in section 9 of the Corporations Act 2001);
information of Octopus Group or any of its Related Entities or clients relating to their business or business processes, including financial information, results and forecasts, details of Suppliers. Accounts, financial records, customer records, business plans, customer lists, business methods, manpower plans, sales agreements and all associated information;
information in relation to the services being provided by Octopus Group to its client or clients;
all reports, proposals, memoranda, drawings, diagrams, statements, accounts and other documents created during the course of providing the Services;
any information in relation to the Panellists;
any other information or documents which are designated by Octopus Group as being confidential, or which are confidential in nature, or which the Client knows or ought to know are confidential; and
all copies of any information referred to in this clause

Fee: the sum to be paid by the client to Octopus Group, as set out in the proposal in consideration of Octopus Group providing the Sample Only. The Fee shall be exclusive of all non-sample third party costs and expenses, Goods and Services Tax and any other taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority worldwide for which the Client shall be additionally liable from time to time.

Materials: the reports, tabulations and other documentation created by Octopus Group in the course of providing the Service.

Panellist: a registered panellist of Octopus Group or one of its selected panel partners.

Proposal: the written document prepared by Octopus Group, which outlines the specific details of the Services, which Octopus Group proposes to undertake for the Client subject to these terms and conditions and those set out in the Proposal.

Octopus Group: Octopus Surveys Pty Ltd whose main place of business is at 14 Ryrie St Mosman, NSW 2088.

Sample Only: a Project in which Octopus Group provides respondents and incentives. The Client is responsible for scripting and hosting the survey.

Services: the services to be provided by Octopus Group to the Client and set out in the Proposal and subject to the terms of the Agreement including (as applicable) Sample Only.

Survey Questionnaire: the survey questionnaire to be provided by the Clients to Octopus Group for submission to Panellists.

Written/Writing: includes, without limitation, writing by e-mail

2. Supply of the Service

Octopus Group shall provide the Services to the Client as specified in the Proposal, and the Client shall pay the Fee to Octopus Group in consideration for the provision of the Services. In the event that Client requests changes to the Services or requests additional Services after Octopus Group has commenced work, or in the event that the incidence, length of interview (“LOI”), quotas, targeting criteria, or other specifications change materially after execution of the Proposal, Octopus Group shall provide the Client with an estimate of the additional Fees related to such changes. For purposes of these terms and conditions, a “material change” shall mean: (i) with respect to incidence, a change in incidence rate by more than ten percent (10%) of the original projected incidence rate; (ii) with respect to average LOI, an increase by more than two (2) minutes from the original LOI or an increase of more that twenty percent (20%) in the average LOI; and (iv) with respect to other changes in specification, a change of more than twenty percent (20%) in the amount of time or resources originally required or contemplated.
The Client shall, at its own expense, supply Octopus Group with all the necessary documents or other materials (including, without limitation, the Survey Questionnaire) and all necessary data or other information relating to the provision of Services, within sufficient time to enable Octopus Group to provide the Services in accordance with the Proposal. The Client shall ensure the accuracy and completeness of the Survey Questionnaire and all other information, data and instructions it supplies.
Each written acceptance of a Proposal by the Client shall be deemed to be an acceptance by the Client of, and to procure the Services upon, the terms of this Agreement.
By accepting the provision of the Services, whether in whole or in part, by Octopus Group, the Client signifies that it accepts the Terms of this Agreement.
When engaging survey programming services, it is the Client's responsibility to test and approve the survey before launch. Any survey changes post launch of the survey will be at the Client's expense.

3. Termination and Suspension

Octopus Group may terminate this Agreement with immediate effect at any time if the Client commits a material breach or any repeated or persistent breach of any of the terms of this Agreement and either such breach is incapable of remedy or the breach continues unremedied for 14 days after notice specifying the breach and requiring the same to be remedied has been given to the Client; or the Client suffers any event of insolvency or is unable to pay its debts as and when they fall due or has an administrator, receiver or administrative receiver appointed over all or any part of its assets, or passes a resolution for winding up.
Subject to clauses 3.3 and 3.4, either party may terminate the Proposal at any time by giving not less than ten (10) business days written notice to the other; provided, however, that when the Services are in the nature of a continuing tracker, not less than two (2) months prior written notice shall be required in the event of a tracker to last twelve (12) months or more or not less than one (1) wave’s notice for trackers that are less than twelve (12) months in duration. In the event that a tracker study is terminated by Client after the project has initially gone into field and Client did not comply with the foregoing notice requirements, in addition to the amounts payable pursuant to clauses 3.3 and 3.4, Client shall pay an amount equal to the per completed interview charge contained in the final quotation for all anticipated completes during any waves that were scheduled to have launched during the applicable period.
If the Client terminates (whether in accordance with clause 3.2 or otherwise) any Proposal under which Octopus Group is required to provide Sample Only, the Fee (up to the full, total value of the Services) will become payable according to the following schedule:

Time of Cancellation	Fee payable
After Written acceptance of the Proposal but before entry links are sent to Octopus Group	Negotiable subject to the amount of work undertaken on project preparation, pre-screening etc
Entry links sent and tested by Octopus Group but invites not been sent out	50% of the Project Management plus all third party costs and expenses incurred and/or committed to by Octopus Group
Anytime after the project has gone into field.	80% of the Project Management plus all third party costs and expenses incurred and/or committed to by Octopus Group plus a per completed interview charge in line with the final quotation.

Without prejudice to clause 3.3, if a Proposal is commenced (whether or not in respect of the provision by Octopus Group or Sample Only) and then placed on hold by the Client for a period greater than four weeks, Octopus Group shall be entitled to issue an invoice to the Client for all Fees plus all third party costs and expenses incurred and/or committed to by Octopus Group to the date of suspension in accordance with clause 3.3 (as applicable). Such invoice shall be paid by the Client in accordance with the provisions of clause 6.1.

4. Fees

In circumstances where Octopus Group is not able to deliver the Services substantially in accordance with a Proposal, it will charge the Client on a per valid respondent basis (i.e. only charge for those respondents completed).
A minimum Fee of $400 will be charged to the Client in respect of all Proposals under which Octopus Group provides Sample Only. Such sum shall be paid by the Client in accordance with provisions of clause 6.1.
All service fee quotes are valid for 30 days.
For Client projects where redirects are not able to be tested due to technical limitations from the client side. If the survey does not correctly redirect respondents to the Octopus Group site, there will be a fee of $500.

5. Delivery

The date for delivery of the data to the Client, which has been collated by Octopus Group as a result of providing the Services, shall be specified in the Proposal.
Octopus Group shall not be liable to the Client or deemed to be in breach of this Agreement by reason of any late or non-delivery, if the delay or failure was due to any cause beyond Octopus Group’s reasonable control including (without limitation) any failure by, or on behalf of, the Client to provide Octopus Group with information, approvals or consents or any other materials (including the Survey) as may be necessary to allow Octopus Group to provide the Services.
Octopus Group shall retain all final deliverables for 12 months and project support records for 24 months. Project record retention may be changed in SOW to meet project needs.

6. Payment

The Client shall pay the Fee within thirty (30) days after the date of Octopus Group’s invoice.
The Client shall pay the Fee without set-off or other deduction.
Unless the Proposal states otherwise, or where clause 6.4 applies, an invoice will be issued at the same time as delivery to the Client of the data referred to in clause 5.1. If there have been any delays in providing the Service due to acts or omissions of the Client or if the delay was due to any cause beyond Octopus Group’s reasonable control, Octopus Group may raise the invoice in accordance with 3.4.
On all Proposals where the Fee exceeds $40,000 (forty thousand dollars), Octopus Group shall issue an invoice to the Client for 50% (fifty percent) of the Fee on commencement of the Services by Octopus Group, which shall be paid by the Client in accordance with the provisions of clause 6.1. The remainder of the Fee shall be paid on completion in accordance with the provisions of clause 6.1 Or if applicable in accordance with clauses 3.3 or 3.4.
If there is any deviation, amendment or increase in the scope of Services to be provided by Octopus Group (including any variation or amendments to the Survey Questionnaire), the Client agrees that Octopus Group is entitled to vary the Fee payable for the Services to take account of such deviation, amendment or increase, and further agrees to pay such varied Fee in accordance with this Agreement.
If the Fee (or any part thereof) is not paid in full when due, then, without prejudice to the parties’ other rights under these terms and conditions, that sum shall bear interest from the due date until payment is made in full, both before and after any judgment, at the rate from time to time fixed under the Penalty Interest Act 1983.

7. Data Protection and Employees

Each party warrants that all times it shall act in accordance with provisions of the Privacy Act 1988, and any code of practice approved under that act applying to that party (including, without limitation, the Market and Social Research Privacy Code), and will at all times undertake to do its utmost to protect the privacy, confidentiality and integrity of Panellist data.
The Client acknowledges that Octopus Group is a member of the Association of Market and Social Research Organisation and that Octopus Group must comply with the Market and Social Research Privacy Principles (“M&SRPPs”) in the Market and Social Privacy Code.
If Octopus Group provides the Client with identified information (as defined in the M&SRPPs) not belonging to the Client, the Client may only use, disclose or transfer such identified information in accordance with the M&SRPPs (including that identified information may only be used for research purposes), to the same extent that Octopus Group may use, disclose or transfer such identified information under M&SRPPs.
The Client undertakes that it will not seek to recruit or re-contact any Panellists by any form of communication for any purpose, research or otherwise, without Octopus Group’s prior written consent, at any time during the provision of the Service or thereafter.
When the Client undertakes a project that requires respondents to install an app on any device, the client must be able to disable the app once the respondents obligations have been fulfilled.
The Client shall provide reasons for each member that has been classified as bad/unusable, this includes and not limited to speeders, straight-liners, bad IP, bad verbatim. For members who were considered to have bad verbatim responses, the written verbatim responses given by that respondent will be supplied to Octopus Group together with respondent ID.
The Client undertakes that it shall not itself (or through or in conjunction with any third party) at any time during the provision of the Service or for a period of twelve (12) months thereafter offer employment to, entice or otherwise encourage any employee of Octopus Group to become an employee, agent or contractor of the Client.

8. Intellectual Property Rights

The Materials are the intellectual property of Octopus Group.
Subject to clause 8.3, and unless otherwise stated in the Proposal, upon receipt of the Fee and all third party costs and expenses incurred and/or committed to by Octopus Group in cleared funds, Octopus Group shall assign to the Client all intellectual property rights in the Materials.
The provisions of clauses 8.2 shall not apply to any panel pre-screening data (i.e. that which is collected from Panelists outside the Survey Questionnaire) or to any know-how, methodologies, software, pre-existing or generic content which shall, at all times, belong to and vest in Octopus Group or the relevant third party.

9. Limitation on Liability

Octopus Group warrants to the Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible and subject to the terms of this Agreement, both in accordance with the Proposal and, at the intervals and within the time frames referred to in the Proposal. Where Octopus Group supplies, in connection with the provisions of the Services, any services or information, supplied, licensed or owned by a third party including the Client, Octopus Group does not give any warranty, guarantee or other term as to its accuracy, quality or otherwise.
Octopus Group shall not be responsible for and shall have no liability to the Client for any loss, damage, costs, expenses or other claims arising from any information or data supplied by the Client whether or not such information or data is incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or any other fault of the Client.
The Client acknowledges that the information and data contained in any Materials has been provided to Octopus Group by independent third parties based on the Survey. Octopus Group shall not be liable for any loss, damage, costs, expenses or other claims arising from any acts undertaken by or on behalf of the Client in reliance on such information or data.
Nothing in this Agreement shall limit either party’s liability in respect of death or personal injury caused by the other party’s negligence, or for fraudulent misrepresentation.
Subject to clause 9.4, Octopus Group shall not be liable to the Client by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement, for any loss of revenue, profit or any indirect, special or consequential loss, damage, costs, expenses, goodwill or other claims (whether caused by the negligence of Octopus Group, its servants or agents or otherwise) which arise out of or in connection with the provision of the Service or its use by or on behalf of the Client.
Subject to clause 9.4, the entire liability of Octopus Group in relation to direct losses incurred by the Client under or in connection with this Agreement shall not exceed the amount of the Fee.
Octopus Group shall not be liable to the Client or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations in relation to the Services, if the delay or failure was due to any cause beyond Octopus Group’s reasonable control.
In the event that the Client wishes to provide products to Panellists for the purposes of “in-home testing” (“In-Home Testing Products”), the Client agrees and acknowledges that it shall be responsible for the delivery and use of such In-Home Testing Products by the relevant Panellists. Octopus Group shall not be liable for any costs, losses or expenses howsoever arising in connection with the delivery and use of such In-Home Testing Products by or on behalf of, the Panellists.

10.Indemnity

The Client hereby indemnifies and shall keep fully and effectively indemnified Octopus Group against all loss, damage, costs, expenses (including reasonable legal fees) or other claims arising out of the Client’s breach of any of the terms of this Agreement or out of the Client’s negligence or the provision by the Client of any In-Home Testing Products, data or other information including (without limitation) the Survey Questionnaire and/or the Screening Questions.

11. Confidentiality

The Client will keep in complete secrecy all Confidential Information entrusted to the Client or of which the Client becomes aware.
The Client will not during the period of this Agreement or at any time after its termination, except as authorised in writing by Octopus Group or required by law:

Reproduce, communicate, reveal, or cause or allow the revelation of any Confidential Information; or
Use or attempt to use, or cause or allow any other person to use any Confidential Information for any purpose other than for the purpose of this Agreement.

The Client will notify Octopus Group immediately on becoming aware of any actual or possible unauthorised disclosure of or access to Confidential Information, whether by the Client or otherwise.
The Client must at any time, if requested by Octopus Group:

Immediately deliver to Octopus Group all Confidential Information and documents of any type in which any Confidential Information is embodied which may be in the Client’s possession or control; and
if requested by Octopus Group, delete all Confidential Information stored electronically (including Confidential Information contained in email, computer files, backup files, on CD ROM, disk or similar), together with all copies in such a way that the Confidential Information is incapable of being restored and the Client must certify to Octopus Group that all such Confidential Information has been so deleted.

Octopus Group, with the written agreement of the Client (which shall not be unreasonably withheld), shall be permitted to use the name and logos of the Client in selected promotional and advertising materials of Octopus Group including (without limitation) in its credentials presentation.

12. Force Majeure

Octopus Group reserves the right to defer the date of delivery or to cancel the provision of Services, if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Octopus Group, and the Client acknowledges that Octopus Group shall have no liability of any nature whatsoever arising out of such deferment or cancellation of the Services.

13. Assignment

Without the prior written approval of Octopus Group, the Client shall not and shall not attempt to assign, sub-contract, sublicense, hold on trust or in any way transfer or delegate any of its rights and obligations hereunder either in whole or in part. Octopus Group may sub-contract some or all of the Services set forth in the Proposal. On written request from Client, Octopus Group shall provide Client the names of the subcontractors used, if any.

14. Governing Law and Jurisdiction

The parties hereto submit to the exclusive jurisdiction of the NSW Courts. The terms of this Agreement shall be governed by and construed in accordance with the laws of NSW.

15. Entire Agreement; Amendments

These terms and conditions, the Proposal and all other email or oral confirmation by the Client of the Proposals, shall constitute the entire agreement between the parties in connection with the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or Written, between the parties.
No amendment to or modification of these terms and conditions shall be binding unless in writing (not including e-mail) and signed by a duly authorised representative of each party.

16. Legal and Regulatory Requirements

Octopus Group Enterprises, and where applicable, the Client, shall comply with all applicable codes of practice, whether voluntary or not laid down by the Australian Market and Social Research Society (AMSRS) and the Australian Market and Social Research Organisations (AMSRO).

17. General

Each right or remedy of Octopus Group under this Agreement is without prejudice to any other right or remedy of Octopus Group whether under this Agreement or otherwise.
If any provision of these terms and conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid , void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, violability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the terms and conditions and the remainder of such provision shall continue in full force and effect.
Failure or delay by Octopus Group in enforcing or partially enforcing any provision of this Agreement shall not be construed as a waiver of any of its rights under this Agreement.
Any waiver by Octopus Group of any breach of, or any default under, any provision of this Agreement by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of this Agreement.
The parties to this Agreement do not intend that any term of the terms and conditions shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to this Agreement.