General Terms and Conditions
1 Application of these Terms and Conditions
1.1 The following General Terms and Conditions shall apply to all market and social research projects and their execution, as well as to any future market and social research projects placed by a Contracting party (Client) to the Research Agency and to their implementation. They shall not apply to the co-operation between private law market and social research agencies when carrying out projects together.
1.2 If a Client uses his own General Terms and Conditions, these do not apply if they deviate from or contradict these 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 clauses shall not be part of the contract. In this case, the contract shall be governed by individual agreements or by statutory provisions.
1.3 In the event of a different or supplementary agreement at or after the conclusion of the contract, written consent of the Research Agency is always required.
2 Subject of the Contract
The Research Agency will carry out the accepted contracts according to advisory services in accordance with the principles, rules and professional ethic rules of German market and social research. With its services the Research Agency supports the Client in his decisions. However, the Research Agency does not make the decisions itself. The content and scope of the services to be provided by the Research Agency shall be governed exclusively by the respective individual contract, unless this is already apparent from these General Terms and Conditions.
3 Quotation, Research Proposal
3.1 In principle, the Research Agency submits its offer to the interested party in the form of a proposal specifying the nature of the project, the service to be performed, the time required for the research and the remuneration to be paid.
3.2 The interested party shall receive the research proposal for the sole purpose of deciding whether to award the contract for the project offered. In the absence of any other agreement, the content of the proposal must not be published or made available in whole or in part to any third party without mutual written consent.
3.3 Should the objectives pursued by the Client with the research not be obvious to the Research Agency, the latter will inform the Client accordingly. The Client must then disclose his objectives in writing.
3.4 The Research Agency cannot guarantee exclusiveness for specific product areas, research objectives or methods, unless this is expressly agreed in writing. If exclusivity is agreed, its duration and, where applicable, an additional fee to be calculated shall be determined.
3.5 Any changes to the contract after conclusion of the contract require written confirmation from the Research Agency.
4.1 The remuneration referred to in the proposal includes, in principle, all the services offered by the Research Agency in connection with carrying out the project outlined in the research proposal. The Research Agency may demand additional remuneration for further services requested by the client.
4.2 Additional costs which are not attributable to the Research Agency and additional costs which were unforeseeable by the Research Agency at the time of placing the contract, despite due care, may be invoiced separately by the Research Agency if they are linked to a factually justified reason and are clearly recognisable for the Client and are adequately defined. This also applies if the Client is not responsible for these costs.
4.3 The remuneration of a project as well as the respective payment date is determined individually in each proposal and the respective order confirmation. In the event of late payment, the Research Agency shall be entitled to charge default interest of six percentage points above the base interest rate, unless a consumer is concerned. In relation to consumers, default interest is charged at four percentage points above the base rate. The Research Agency also reserves the right to withhold services in the event of defaulting payments.
4.4 The client is only permitted to set off with any counterclaims if the counterclaims are undisputed or have already been legally decided by the courts.
5 Execution of the Contract
5.1 The Research Agency carries out the contract – in line with Section 2 – according to scientific methods of market and social research.
5.2 If, after the placement of the order, it turns out that the project cannot be carried out for methodological reasons which neither the Client nor the Research Agency could have foreseen and are responsible for, the Research Agency shall immediately inform the Client. If both parties do not find a methodical solution to the problem, the Research Agency is entitled to return the order due to impracticability.
5.3 The participation of the Client in a project and the verification of the implementation and results of the project by the contracting authority require a separate agreement. If this leads to additional costs, they must be borne by the client. As always, the Research Agency is obliged to maintain the anonymity of the respondents and participants.
5.4 The Research Agency is allowed to subcontract outside its own organization in order to carry out the tasks of the contract. The Research Agency shall inform the Client about subcontractors as soon as possible in advance. At the request of the Client, the identity of the subcontractors shall be disclosed. The Research Agency assures that the necessary confidentiality is maintained when subcontracting and that the rules and methods of German market and social research as well as other legal requirements, such as data protection, are adhered to.
5.5 If the client requests a particular subcontractor, the Research Agency shall not be liable for the accuracy, completeness or quality of this subcontractor’s work, unless there is a breach of duty of the Research Agency according to section 8.4.
6 Copyright, Property Rights and Accessory Duties
6.1 The rights vested in the Research Agency by the German Copyright Act (Urhebergesetz) shall remain with the Research Agency. The Client acknowledges that the sole copyright and all intellectual property rights in the design of projects, proposals, methods, procedures and procedural techniques, graphic and tabular representations originating in the Research Agency and in other expertise of the Research Agency is exclusively attributable to the Research Agency. The Client’s copyright for the documents provided by him shall remain unaffected by this.
6.2 Ownership of the material generated during the execution of the project – data carriers of any kind, questionnaires, other written documents, etc. – and the data collected, unless otherwise agreed, shall remain the property of the Research Agency. The anonymity of the respondents and the test participants must not be jeopardized by such an agreement.
6.3 The Research Agency undertakes to keep collection documents for a period of one year and data carriers for a period of two years after submitting the report or after end of fieldwork if no report is required, unless expressly agreed otherwise.
6.4 The Research Agency and the Client undertake to treat all information exchanged in the course of the project strictly confidentially and to use it exclusively for the execution of the project. Employees must be obliged accordingly. This obligation also applies to the period after the completion of the project. It does not apply to such information for which the other party proves that it was known before the reception or that it became available to the public after receipt without the party receiving it being responsible for this.
7 Use of the Research Report and the Research Results
7.1 The research reports and research results are made available to the Client for internal use only, unless the Research Agency agrees to their being passed on to third parties or to the publication, in full or in part, or unless the Research Agency releases them for publication due to the nature of the matter or due to copyright issues or property rights (see section 6). They may not be reproduced, printed or stored, processed or distributed in documentation and information systems of any kind for the purpose of disclosure to third parties without the prior consent of the Research Agency. These rules also apply to reports and results resulting from collaborative projects. The Client shall not hold a sole right of utilization in these. These rules shall not apply to merely insignificant parts of the research reports or research results.
7.2 Publications in which comparisons with competitors are made may only be published with the prior consent of the Research Agency only after the Research Agency has released the specific text to be published.
7.3 The use of research results and reports in advance of formal legal proceedings (e.g. court proceedings, arbitration procedures, administrative procedures) is prohibited without the prior written consent of the Research Agency, subject to mandatory legal/administrative regulations or judicial decisions.
7.4 If the Contracting Authority wishes to quote in whole or in part from the research report, he must identify the quotations as such, citing the Research Agency as the author of the report.
7.5 The Client shall indemnify the Research Agency from all claims made against the Research Agency if the Client has used the duly obtained results intentionally or negligently unlawfully, in particular through unlawful and / or false advertising.
8 Warranty and Liability
8.1 The liability of the Research Agency and claims for defects of the Client are governed by the statutory provisions, unless otherwise specified below. The Research Agency guarantees that the research is carried out properly and the results are analyzed scientifically. Warranty claims for obvious defects shall only be permissible if the Client notifies the Research Agency of these in writing within two weeks of the receipt of the research reports and the research results. In the case of non-obvious defects, the period of notice begins when the defect comes to attention, but at the latest three months after the last legally relevant data is disclosed. The warranty period shall begin with the receipt of the last legally relevant data and shall last one year.
Excluded from this are claims for defects by consumers as well as claims for damages due to injury to life, body or health, claims under the Product Liability or Minimum Wage Act and/or claims for damages due to grossly negligent or intentionally caused damage by the Research Agency. In this respect, the statutory limitation periods apply. Liability and warranty claims due to limitations or impairments that are beyond the control of the Research Agency do not exist. This includes actions of third parties that do not act on behalf of the Research Agency.
8.2 The Research Agency does not guarantee that the data collected, processed and analyzed by itin accordance with the rules and methods of market and social research, can be used by the Client in a specific commercial way.
8.3 The Research Agency shall not be liable for damages incurred through or in connection with the Client’s interpretation of the data / results, unless the Research Agency is in breach of duty according to Section 8.4.
8.4 Claims for damages by the Client against the Research Agency or its legal representatives or vicarious agents shall only exist in the event of culpable injury to life, body or health, in the case of claims arising from the Product Liability and the Minimum Wage Act, an essential contractual obligation (the fulfilment of which makes the proper execution of the project possible in the first place and on whose compliance the contracting party regularly trusts and may rely on) or in the case of an intentional or grossly negligent breach of duty by the Research Agency, its legal representatives or vicarious agents or in the event of fraudulent concealment of a defect of the project.
8.5 In the case of damage caused through the negligent breach of key contractual duties (see section 8.4), the Research Agency shall only be liable for foreseeable, typical damages. Compensation for indirect damages and unforeseeable consequential damages shall be excluded.
8.6 As far as claims are asserted against the Client because of alleged breaches of duty by the Research Agency and the Client wants to take recourse, the Research Agency must be informed as soon as possible. The Research Agency is entitled to conduct or supervise the litigation. This right of the Research Agency does not affect the Client’s right of defense.
9 Delay of Performance
9.1 Should the Client be in delay with providing the information necessary for carrying out the project or providing the necessary documents, the Research Agency shall not be obliged to meet the agreed deadlines for delivery and performance. Should the Client fail to meet his duty of collaboration even after the Research Agency has granted an appropriate extension, the Research Agency is entitled to terminate the contract for serious reasons and to claim damages.
9.2 If delivery is postponed, the Research Agency shall only be liable in cases of default. The Client can only claim damages according to Section 8.
9.3 If agreed dates of delivery are not met because of delays caused by acts of God, rioting, strikes, acts of state, lockouts, or stoppages beyond the Research Agency’s control, also on the part of a subcontractor, the period of performance shall be extended by the corresponding period up until the end of the disruption. The Research Agency shall inform the Client of the beginning and end of such disruptions. In the case of long-term operational disruptions caused by acts of God or disruptions beyond the Research Agency’s control, the Research Agency has the right to terminate the contractual relationship for good cause, excluding any claims for compensation.
10 Product Tests
10.1 The Client shall indemnify the Research Agency against all claims made against the Research Agency or its employees as a result of damage caused by any defect in the product to be tested.
10.2 The Client shall be responsible for ensuring that all the necessary chemical, medical, pharmaceutical or other tests / studies / analyses of the test product have been carried out. He shall assume responsibility for the suitability of the product for the test and, to the extent that an examination was necessary and has taken place (see above), that this examination gave no indication that the product could cause any harm. The Client shall be responsible for ensuring that all information prescribed by the law or ordinances and / or necessary for the use of the product, is made available to the Research Agency, so that the latter may pass it on to the persons participating in the test.
10.3 In all other respects, the regulations of the product liability laws shall apply.
11 Final Clauses
11.1 Place of performance and place of jurisdiction is Hamburg.
11.2 Unless specifically agreed otherwise in writing, the contractual relationship between the Research Agency and the Client shall be governed by the laws of the Federal Republic of Germany. However, the law on the United Nations Convention on the International Sale of Goods (CISG) and International Private Law (IPR) do not apply.
11.3 The written form in the sense of these General Terms and Conditions is taken to include telefax and email transmissions.
11.4 Should any condition of these General Terms and Conditions be invalid or unenforceable, the validity of the remaining conditions shall not be affected. In this case, the parties will be able to use the ineffective or replace an unenforceable condition with an effective or enforceable condition that is as close as possible to the economic purpose of the invalid condition. The same applies to any gaps in the contract.
11.5 Amendments, additions and other ancillary agreements to these provisions must be made in writing, this also applies to a possible waiver of the written form requirement itself. No party may rely on an actual exercise that deviates from these conditions, as long as the deviation is not set out in writing.