Terms & Conditions

Last update March 2023

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 Research is prepared to enter an agreement with a 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:

  1. Agreement: means, collectively, the terms and conditions set out below and those set out in the Proposal
  2. Client: the client, whose details are set out in the attached Proposal
  3. Confidential Information:

1.1 the ideas, techniques, systems, processes, trade secrets, designs, know-how, specifications, inventions, methodologies and procedures developed by Octopus Research or any of its Related Entities (as defined in section 9 of the Corporations Act 2001);

1.2 information of Octopus Research 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;

1.3 information in relation to the services being provided by Octopus Research to its client or clients;

1.4 all reports, proposals, memoranda, drawings, diagrams, statements, accounts and other documents created during the course of providing the Services;

1.5 any other information or documents which are designated by Octopus Research as being confidential, or which are confidential in nature, or which the Client knows or ought to know are confidential; and

1.6 all copies of any information referred to in this clause

  1. Fee: the sum to be paid by the client to Octopus Research, as set out in the proposal in consideration of Octopus Research providing research services. The Fee shall be exclusive of 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, unless specified otherwise
  2. Materials: the reports, tabulations and other documentation created by Octopus Research in the course of providing the Service
  3. Proposal: the written document prepared by Octopus Research, which outlines the specific details of the Services, which Octopus Research proposes to undertake for the Client subject to these terms and conditions and those set out in the Proposal
  4. Octopus Research: Octopus Research Pty Ltd (the "Disclosing Party"), whose address is 14 Ryrie Street, Mosman, NSW, 2088
  5.  Services: the services to be provided by Octopus Research to the Client and set out in the Proposal and subject to the terms of the Agreement
  6. Survey Questionnaire: the survey questionnaire designed to fulfil the objectives of the proposed research  
  7. Written/Writing: includes, without limitation, writing by e-mail
  8. Panelist: a registered panelist of Octopus Group or one of its selected panel partners

Reference is made to a letter/ email of confirmation to be provided by Octopus Research (upon acceptance of project by Client) between Client and Octopus Research for the provision of market research services or other related services (the "Services") identified in the Sales Order and any proposal or other similar document issued by Octopus Research relating thereto (the "Proposal").  The general terms and conditions below (the "T&Cs"), the Sales Order and the description and other specifications of the Services identified in the Proposal shall be collectively referred to herein as the "Agreement".

  1. Services.  

1.1 The Client appoints the Company and the Company accepts such appointment to provide the Services and Deliverables upon these terms and conditions, which may only be changed or amended by the written agreement of both parties.

1.2 The Client shall be deemed to have accepted the Proposal by either: (i) notifying the Company in writing (which may be by email) that it has accepted the Proposal; or (ii) otherwise notifying the Company in writing (which may be by email) that it wishes the Company to commence provision of the Service (including, without limitation, by issuing a purchase order in respect of the Service or any part thereof).

1.4 Unless otherwise agreed in writing this Contract shall apply to all services and Deliverables provided by the Company to the Client.

1.5 If clients have their own General Terms and Conditions, these shall not apply to the extent that they deviate from or contradict the Company’s General Terms and Conditions. In the event of a conflict between two clauses, their minimum common ground shall apply. This is the case even if the Client should demand absolute precedence of his own General Terms and Conditions. Should it prove impossible to determine the minimum common ground, these provisions shall not be part of the contract. In this case, the contract shall be governed by the individual agreements reached or by the statutory provisions.

All Services performed pursuant to the Agreement shall be rendered in accordance with all generally accepted professional industry standards and practices applicable to the advertising and marketing research industry including, without limitation, the International Code of Marketing and Social Research Practice issued by the ICC and ESOMAR, The Australian Market and Social Research Society (AMSRS), The Association of Market and Social Research Organisations (AMSRO) and the Research Association of New Zealand (RANZ).

  1. Financial terms.  

3.1 The fees agreed upon are intended to pay for the cost of executing the study in question. Unless otherwise agreed in writing, 100% of the agreed fee shall be payable upon delivery of the results. For projects exceeding the agreed value of $40,000, 50% will be payable upon project commissioning and 50% upon delivery of results.  If a Service is to be carried out in stages, with interim deliverables, final invoices for each stage will be raised on delivery of relevant interim Deliverables.

3.2 Fees are payable without any deductions within 30 days on receipt of the invoice.  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. The Company also reserves the right to withhold services if payments are overdue.

3.3 If there is any deviation, amendment or increase in the scope of Services to be provided by Octopus Research, the Client agrees that Octopus Research 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.

3.4 Payments will be in the currency specified in the agreement. If the agreement specifies that Octopus Research shall invoice in a currency other than its national currency, then Octopus Research shall have the right to increase all fees under the applicable agreement if, on the date of invoice the rate of exchange of the two currencies has changed so that the value of the currency specified in the invoice compared to the national currency of Octopus Research has increased by more than one percent (1%) from the date of the Sales Order. The adjustment shall fully compensate Octopus Research for the increase in the value of the currency invoiced compared to its national currency.

3.5 In the event that Octopus Research is required to incur any out of pocket or third party pass through expenses (including without limitation honoraria, respondent incentives and focus group facility) or additional costs (including without limitation travel and lodging) which are not set forth in the Sales Order, then, provided that Client is notified of and reasonably approves all such expenses in advance, Client shall reimburse Octopus Research for such expenses within thirty (30) days of date of invoice[a].

  1. Modifications.  If the Client requests any modifications to the specifications or the scope of the Services or to the Deliverables, such modifications must be agreed to in writing by the parties before the commencement of any work related thereto, including, without limitation, any additional charges to Client associated with such modifications. If the Client delays or postpones the Services, the Client shall pay for any documented unrecoverable costs incurred by Octopus Research as a result of such delay or postponement.

  1. Term and Termination.  The Agreement will become effective as of the date of execution by Client of the agreement or other document provided by Octopus Research or Client to confirm Client’s acceptance and shall remain in force until completion of the Services.  Each party shall have the right to terminate the Agreement at any time without cause upon thirty (30) days prior written notice to the other party.  Either party shall have the right to terminate the Agreement, effective immediately, at any time and without prior notice, if the other party fails to either perform any material obligation or to cure a material breach within fifteen (15) business days of receiving written notice by the non-breaching party to that effect. The termination provisions set out in this Section are not exclusive, and are in addition to, and not in limitation of either party's rights under the Agreement or at law.

  1. Effects of Termination.  Upon termination of the Agreement for any reason, the Client shall continue to be obligated to pay for the fees due and expenses incurred by Octopus Research up to the effective date of termination.  In the event the Client terminates the Agreement without cause before completion of the Services under the agreement, the Client shall also pay for any documented unrecoverable costs incurred by Octopus Research as a result of such early termination.

  1. Representations And Warranties.   

Each party represents and warrants that

(i) it will comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws;

(ii) it has obtained any and all permits, licenses and third party consents or approvals necessary in connection with the use of materials furnished to the other party and that it has the legal right to disclose such materials to the other party in connection with the Services, including, without limitation, any consents required under Section 12;  

(iii) any materials disclosed to the other party, including without limitation the Deliverables, shall not violate or infringe upon the trademark, copyright, patent or other intellectual property rights or right of privacy or publicity of any third party; and

(iv) neither party shall use the other party’s name, logos or trademarks in any publicity (including press releases) or advertising without the other party’s prior written consent.

Because the nature of the Services are based upon samples and statistical treatment of information, Octopus Research does not warrant the total accuracy of the Deliverables or the data contained therein.  Octopus Research does not predict or assure any particular substantive results of its research in advance, nor does Octopus Research accept any liability for (i) Client’s interpretation of Octopus Research reports or of other data furnished to Client by Octopus Research, (ii) any errors caused by errors in data provided to Octopus Research[b][c] by the client (iii) improper use of simulation software or improper interpretation of simulation software results by Client, or (iv) resale of survey results or other data by Client. Octopus Research will use commercially reasonable efforts to meet all project deadlines, but it does not guarantee meeting those deadlines.  All time frames included in the Agreement with respect to the timing of Deliverables are approximations.

  1. Indemnification.  

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.

  1. Liability.  
  1. Octopus Research 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 Research does not give any warranty, guarantee or other term as to its accuracy, quality or otherwise.
  2. Neither party shall be liable to the other party for any indirect, incidental, punitive, special or consequential damages, including without limitation, loss of profits, arising out of, or in connection with, the Agreement whether or not such party was advised of the possibility of such damage and whether based in breach of contract, tort, or any other theory at law or in equity.
  3. The total aggregate liability of Octopus Research for any and all Claims made by Client under or in connection with the Agreement shall not exceed the amount of fees paid by Client under the Agreement.
  4. Notwithstanding the foregoing, the exclusion and limitations on liability set forth in subsections (i-iii)  above shall not apply with respect to any Claims by Non Affiliated Third Parties covered under each party's indemnification obligations set forth in Section 8.
  5. Octopus Research 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.
  6. In the event that the Client wishes to provide products 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 Panelists. Octopus Research 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 Panelists.

  1. Confidentiality.  

"Confidential Information" shall mean all information relating to the intellectual property and business practices of either party including, without limitation:

(i) information relating to research and development, tools, techniques, methodologies, processes, lessons learned, models, know-how, algorithms, specifications, computer programs and software; and

(ii) business plans, financial information, products, services, costs, sources of supply, strategic, advertising and marketing plans, customer lists, pricing methods, project proposals (including the Proposal and the Sales Order and any information contained in those documents), personnel, and business relationships.

Neither party receiving Confidential Information from the other party shall

(i) use Confidential Information received from the other party under this Agreement for any purpose other than to fulfill its obligations under this Agreement;

(ii) disclose such Confidential Information to any third party, except for those of its employees with a need to know the information in order to perform their obligations hereunder and provided that they are made aware of and agree to be bound by the obligations of confidentiality contained herein.  The receiving party further agrees to use the same degree of care in safeguarding the Confidential Information as its uses for its own information, but in no event less than a reasonable degree of care.  Upon written request, the receiving party shall return all Confidential Information to the disclosing party.

  1. Personal Information.

Pursuant to its applicable professional rules and applicable privacy laws, Octopus Research shall not be required to disclose the identity or any other personally-identifiable information ("Personal Information") relating to respondents to Client, except as permitted by and in accordance with such applicable professional rules and applicable privacy laws.  In any instance of such permitted disclosure, Client hereby agrees to maintain the confidentiality of any Personal Information disclosed to it.  As a condition to the delivery of Personal Information of respondents to Client, Octopus Research may require Client to execute a separate confidentiality agreement to ensure compliance with this section and applicable industry rules.

Client shall only disclose to Octopus Research personal Information about its customers or others in material conformance with (i) any statement or policy that Client provides to such data subjects concerning the use and disclosure of Personal Information and (ii) applicable law.  By way of example and not limitation, in the event that Client, for the purposes of the Services, provides Octopus Research with Personal Information, Client hereby warrants that the file conforms to all applicable legislation and regulations in force, and asserts that it has the rights and authorizations necessary to provide said Personal Information to  Octopus Research for use within the context of the Services.  It is the responsibility of Client to complete the appropriate formalities so that  Octopus Research has the right to process any Personal Information.   Octopus Research accepts no liability and shall not bear any costs resulting from any failure by Client to fulfil the legal requirements in terms of data protection.

  1. Ownership.  

Client shall own the report(s), data or other deliverables identified in the Agreement prepared by Octopus Research specifically for Client hereunder (the “Deliverables”).  The Deliverables shall not include, and Octopus Research shall retain the exclusive ownership of the following:

  1. Octopus Research trademarks, logos, copyrights and other intellectual property rights;
  2. Octopus Research’s know how, technologies, and proprietary methodologies, including, without limitation, processes, products, tools, formulae, algorithms, lesson learned presentations, models, databases, computer programs and software used, created or developed by Octopus Research in connection with Octopus Research’ performance of Services under this Agreement, including without limitation, any derivatives, modifications or enhancements thereto; and
  3. all questions and questionnaires, except to the extent that Client has provided such material (collectively, " Octopus Research IP").  Client acknowledges and agrees that all Octopus Research IP shall remain the sole and exclusive property of Octopus Research and, Client will not reverse-engineer, decompile or disassemble any Octopus Research IP.  Octopus Research hereby grants to Client an irrevocable, non-exclusive, worldwide, royalty-free license to use any Octopus Research IP that is incorporated into the Deliverables to the extent necessary for Client to use, view or access the Deliverables for Client's business purposes.  Client agrees that Octopus Research may maintain data, including test level and respondent level information, obtained in the course of performing Services in Octopus Research’s databases for industry studies, benchmarking and validation of its professional norms and standards, provided that
  1. such data will only be used or disclosed in an aggregated, manipulated form, and
  2. Octopus Research will never identify the source of any such data or information as that of Client.  In addition, Octopus Research may retain one copy of the Deliverables for archiving purposes.  

Notwithstanding the foregoing, to the extent that the Agreement specifies that the Services include syndicated research services and/or any deliverables will be comprised of syndicated research reports (“Syndicated Deliverables”):  

  1. Octopus Research shall at all times retain sole and exclusive ownership rights in the Syndicated Deliverables as well as all Octopus Research IP;
  2. Client may not sell, distribute, copy or reproduce in full or in part any of the Syndicated Deliverables, without authorization from Octopus Research, which Octopus Research may withhold in its sole discretion; and
  3. this Agreement constitutes a revocable, non-exclusive license from Octopus Research to Client to use the Syndicated Deliverables solely for internal purposes, subject at all times to the ownership rights of Octopus Research set forth herein.
  1. Publicity and Use of Deliverables. 

Neither party shall use the other party’s name, trademarks or logos in the public domain, including, without limitation, in advertising, marketing or promotional materials, press releases or press conferences (collectively, the “Public Domain”) without the prior written consent of the other party.  In addition, Client shall not publish the Deliverables in the Public Domain without the prior written consent of Octopus Research.

Client shall inform Octopus Research prior to the commission of the Services and the execution of the ageement if Client intends to use the Deliverables in connection with any dispute resolution, litigation, arbitration or other legal proceeding of any nature ("Litigation Purposes").  Client acknowledges that use of the Deliverables for Litigation Purposes may affect Octopus Research ' recommended methodological approach and study costs.  In addition, if Client decides after the Services have been completed that it wishes to use the Deliverables for Litigation Purposes, it must first obtain the prior written consent of Octopus Research, which Octopus Research may withhold in its sole discretion.

  1. Waiver.  If either party fails to fully exercise any right, power or remedy under the Agreement, such right, power or remedy shall not be waived.  No express waiver or assent by either party with respect to any breach or default under any provision of the Agreement shall constitute a waiver or assent with respect to any subsequent breach or default under that or any other provision. No waiver shall be effective unless in writing signed by the party waiving its rights hereunder.
  2. Severability.  If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of the Agreement shall not be affected and those provisions shall remain in full force and effect.  If a court or other decision-maker should determine that any provisions of the Agreement is overbroad or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing or enforcing in part that aspect of the provision found overbroad or unreasonable.
  3. Governing Law.   The Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State in which the Octopus Research office that executes this Agreement is located without regard to conflicts of law principles that would require the application of any other law.  
  4. Jurisdiction.  In the event of any dispute arising out of or relating to the Agreement, the parties hereby consent to the exclusive jurisdiction of the courts of the State in which the Octopus Research office that executes this Agreement is located.
  5. Assignment and Successors.  Neither party may assign any rights or delegate any obligations to any third party under the Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, a party may assign the Agreement without the other’s consent to:
  1. an affiliate; or
  2. to any person, firm, organization, corporation, or other entity which succeeds to the business of such party by acquisition, merger, reorganization, or otherwise.  The Agreement shall inure to the benefit of and be binding upon Octopus Research and its permitted successors and assigns, and Client and its permitted successors and assigns.
  1. Subcontracting.  From time to time, Octopus Research may, where appropriate, subcontract all or part of the Services to be provided hereunder to one of its approved suppliers or to an affiliate.  
  2. 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. Without limiting the foregoing, the following shall constitute events or conditions of Force Majeure: acts of State or governmental action, terrorism, riots, disturbances, war, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning and explosion or any other cause beyond Octopus Research’ reasonable control.
  3. Entire Agreement; Amendments
  1. 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.
  2. 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.

Market Research Agreement

This Agreement incorporates by reference the Terms and Conditions attached hereto and the Quotation, including terms related to content, payment, cancellation, data, limitations on liability, confidentiality, disclaimers, and indemnification. A copy of the Terms and Conditions has been provided to Client. Client has had an opportunity to review the Standard Terms and agrees to be bound by them.