1 Validity of the Terms & Conditions
1.1
The following Terms & Conditions apply to all current as well as future market and social research contracts and their performance.
1.2
If the Client uses his own Terms & Conditions, they are invalid insofar as they deviate from or conflict with the General Terms & Conditions of creative analytic 3000 GmbH. In the event of a conflict between two provisions, the minimum that they have in common will initially apply. This also applies if the Client demands absolute precedence of his own General Terms & Conditions. If it proves impossible to determine this minimum common ground, these provisions will not form part of the contract. In such cases, the content of the contract will in this respect conform to the individual agreement that has been made or the relevant statutory provisions.
1.3
If — during or subsequent to the concluding of this contract — there are any agreements which deviate from or supplement it, this always requires approval in writing from creative analytic 3000 GmbH.
2 The subject of the contract
2.1
creative analytic 3000 GmbH (hereafter referred to as creative analytic 3000) carries out the commissions it has accepted in the context of advisory and consulting services which comply with the professional codes of conduct pertaining to market and social research.
2.2
creative analytic 3000 and its services support the Client in the decisions he makes. However, it does not make these decisions itself. The respective individual contract exclusively determines the scope and content of the services to be provided by creative analytic 3000, insofar as nothing in this respect already results from these General Terms & Conditions.
3 Tender, research proposal
3.1
creative analytic 3000 essentially submits its tender to the interested party in the form of a research proposal which indicates the task, the services required for its fulfilment, the timeframe for the research, together with the necessary remuneration. If a tender exceeds the scope of a framework proposal, creative analytic 3000 will — prior to submitting its tender — inform the Client of the extent to which it considers the development of particular research documents such as draft questionnaires or topic guides to be necessary, and what fee it would charge for this. creative analytic 3000 is entitled to demand the fee it has indicated if the interested party has raised no objection to this. The costs and expenses associated with discussions that take place outside the Institute’s normal place of business must be reimbursed, so long as this has previously been notified to the interested party.
3.2
The fee stated in the research proposal essentially includes all the services that must be provided by the Institute in the context of carrying out the contract. It includes the delivery of a report (in German) which is sent digitally to the client. The Institute is entitled to demand an additional fee for special items requested by the Client, for the provision of additional printed copies of reports, for translations of the research reports, and for the creation of preliminary or interim reports. If — after the contract has been concluded — there are any additional costs arising as a result of changes or additions requested by the Client or due to other reasons for which the Institute is not responsible, the Institute is entitled to charge for them. Any change to the scope of the contract after the contract has been concluded furthermore requires the express written agreement of the two parties.
3.3
The interested party receives the research proposal for the sole purpose of deciding about where to award the contract for this particular study. Unless otherwise agreed, its contents may only be wholly or partly published or passed to a third party if this has been approved in writing by both parties.
3.4
If the Client is pursuing an objective with this contract that is not immediately obvious to creative analytic 3000, the latter will notify him of this fact. The Client must then reveal his objective in writing.
3.5
creative analytic 3000 cannot guarantee exclusivity for specific product areas, research subjects or research methods unless this is agreed in writing. If exclusivity has been agreed, its duration and any additional fee that may be charged must be established.
3.6
Once the contract has been concluded, any changes to the task that has been commissioned must be confirmed in writing by creative analytic 3000.
4 Remuneration
4.1
The remuneration indicated in the research proposal essentially comprises all the services offered by creative analytic 3000 in connection with carrying out the project outlined in the research proposal. creative analytic 3000 is entitled to demand additional payment for any supplementary services that are requested by the Client.
4.2
creative analytic 3000 is entitled to separately invoice additional costs for which creative analytic 3000 is not responsible as well as any additional costs which — in spite of due care and attention — were not foreseeable (particularly on the part of creative analytic 3000) when the contract was awarded if these costs are based on fact, are clearly recognizable for the Client, and are adequately identified and itemized. This also applies if the Client is not responsible for these costs.
4.3
The purpose of the fees that have been agreed is to finance the respective research that is envisaged. For this reason, advance payments of the research fee are required from a net value of 15,000 euros upward: 50% when the contract is awarded, and 50% when the results are submitted.
A contrary provision can be made if the research approach or the total amount of the contract suggest that this might be necessary.
4.4
The following cancellation charges apply to workshops, focus groups, and 1-1 explorations that are cancelled at short notice.
- Cancellation with notice of at least 7 working days prior to commencement of study: hire of premises, recruitment costs, and organizational costs
- Cancellation with notice of 3 or less working days prior to commencement of study: hire of premises, recruitment costs, and organizational costs plus Study Manager’s fee (basic daily rate of 1,000 euros)
- Cancellation with notice of only 1 working day prior to commencement of study: hire of premises, recruitment costs, organizational costs, Study Manager’s fee (basic daily rate of 1,000 euros), plus respondent incentives
Working days are deemed to be Monday to Friday.
4.5
Payment is due without any deductions as soon as the invoice has been received. If payment is delayed, creative analytic 3000 is entitled to demand default interest amounting to eight percentage points above the base lending rate. In the case of late payments, creative analytic 3000 also reserves the right to withhold its services.
4.5
The Client is only permitted to offset payments as a result of possible counterclaims if these counterclaims are undisputed or have already been established in a legally binding manner.
5 Execution of the contract
5.1
As stated in Section 2, creative analytic 3000 will execute the contract in accordance with the scientific methodology deployed in market and social research.
5.2
The Client has the right to inspect the original survey documents at the Institute’s business premises, although this must not infringe the respondents’ right to anonymity. If any costs arise as a result of measures that are required to maintain this anonymity, they must be borne by the Client.
5.3
The Institute guarantees that the research will be conducted in a fit and proper manner, although if necessary it reserves the right to collaborate with other Institutes or deploy external fieldwork organizations and test studios. If subcontracts are awarded, creative analytic 3000 guarantees that the necessary confidentiality will be maintained and that the rules and methodology pertaining to market and social research as well as other legal provisions such as those relating to data protection will be adhered to.
The fit and proper evaluation of the research is likewise guaranteed. Claims or complaints can only be based upon culpable and negligent infringement of the duty of care which is incumbent on the Institute. If research results are not submitted in a timely manner for reasons for which the Institute is responsible, the Client is entitled to set an appropriate final deadline. Once this deadline has expired, he can withdraw from the contract if the service stipulated therein has not previously been provided; if the Client can prove that he no longer has an interest in that part of the contract that has already been provided, he is also entitled to withdraw from the contract in this respect. Any possible damages or claims arising from this delay cannot be paid. Statutory provisions apply if the delay is intentional or the result of gross negligence. If the research has culpably not been conducted as stipulated by the contract, the Client is entitled to seek appropriate remedy. If the fault cannot be rectified or has not been rectified in a fit and proper manner before an appropriate deadline has expired, he can reduce the entitlement to remuneration. Any further claims are excluded. Statutory provisions apply in the case of liability due to premeditation or gross negligence.
5.4
creative analytic 3000 undertakes to treat any information it has received from the Client in strict confidence, and to use it for the sole purpose of performing the contract. Unless otherwise agreed, the research results that have been obtained are only made available to the respective Client.
5.5
creative analytic 3000 is not liable for any kind of consequential loss or damage which arises for the Client in connection with the research that has been conducted for him; in cases of premeditation or gross negligence, liability is limited to claims or loss or damage that could be foreseen at the point in time when the contract was concluded.
5.6
The Client accepts liability towards creative analytic 3000 for any direct or indirect loss or damage that affects the Institute or any third party due to the use of products that have been made available by the Client, even if this is through no fault of his own. In principle, the Client indemnifies creative analytic 3000 against claims for compensation made by third parties if they are based upon loss or damage due to products that have been provided or requested.
5.7
If — after the contract has been awarded — it transpires that the research cannot be conducted for methodological reasons which neither the Client nor creative analytic 3000 were able to foresee and for which they cannot be held responsible, creative analytic 3000 will notify the Client without delay. If both parties to the contract are unable to find a methodological solution to the problem, creative analytic 3000 is entitled to rescind the contract on the grounds of unfeasibility.
6 Copyright, proprietary rights, and obligations with regard to access
6.1
creative analytic 3000 retains all the rights to which it is entitled in accordance with copyright legislation. The Client acknowledges that sole copyright and all the proprietary rights to research concepts, proposals, methods, procedures and processes, graphic and tabular visualizations originating from creative analytic 3000 as well as know-how incorporated in other services provided by creative analytic 3000 are vested solely in creative analytic 3000. The Client’s copyright in relation to documents he has produced remains unaffected.
6.2
Unless otherwise agreed, ownership of any materials produced during execution of the contract (such as data carriers of any kind, questionnaires, other written documents, and so forth) lies with creative analytic 3000. The anonymity of respondents or other survey participants must not be compromised by an agreement of this sort.
6.3
creative analytic 3000 undertakes to retain any survey documentation (in both electronic and paper form) for a period of one year following the submission of the research report, unless some other agreement has been expressly concluded. In order to comply with data protection legislation, the documents will be destroyed once this 12-month period has expired.
6.4
creative analytic 3000 and the Client undertake to treat any information they have exchanged within the context of carrying out the contract in strict confidence, and to use it solely for the purpose of carrying out the contract; colleagues are subject to a similar obligation which also applies after the contract has been completed. This obligation does not apply to any information with regard to which the other party can prove that it was known before it was received or that it was common knowledge before it was received, or that it was made available to the public after it had been received without the receiving party being responsible for this.
7 Use of the research report and the research findings
7.1
Research reports and research findings are made available to the Client for internal use only, unless creative analytic 3000 approves their publication or their complete or partial passing on to third parties, or creative analytic 3000 releases them as a result of their nature or as a result of copyright or proprietary rights (see Section 6). Neither may they be duplicated or printed or stored, processed, or disseminated by the Client in any kind of documentation or information system for the purpose of publication or passing them to third parties without prior authorization on the part of creative analytic 3000. These provisions also apply to research reports and research findings that are the result of syndicated studies. The Client does not receive sole usage rights to these studies. These provisions do not apply if one is merely dealing with unimportant parts of the research reports or research findings.
7.2
Publications which make comparisons with competitors and which mention creative analytic 3000 are only permitted with the express approval of creative analytic 3000, and after creative analytic 3000 has released the actual text for publication.
7.3
Subject to overriding legal and/or administrative provisions or legal judgments, the use of research reports and research findings in advance of formal legal proceedings (such as judicial proceedings, arbitration proceedings, or official administrative proceedings) is not permitted without prior written consent on the part of creative analytic 3000.
7.4
If the Client wishes to quote the research report in part or in its entirety, he must clearly indicate that they are quotes and also name creative analytic 3000 as the author of the research report.
7.5
The Client indemnifies creative analytic 3000 from any claims that are enforced against creative analytic 3000 because the Client has unlawfully and willfully or negligently used the results that have been obtained in a fit and proper manner, and in particular has used them for the purpose of unlawful and/or misleading advertising.
8 Warranty and liability
8.1
Unless otherwise stated below, liability on the part of creative analytic 3000 as well as claims made by the Client in relation to faults or defects comply with the statutory provisions. creative analytic 3000 guarantees that the research will be conducted in a fit and proper manner and that it will be evaluated scientifically. Warranty claims in the case of obvious faults/defects are only valid if the Client notifies creative analytic 3000 of them in writing within two weeks of the research report and research findings being received. If faults/defects are not immediately obvious, this deadline applies from the point in time when the fault/defect is notified, although no later than three months after the most recent legally relevant information has been disclosed. The warranty period begins once the most recent legally relevant information has been received, and amounts to one year.
8.2
creative analytic 3000 cannot guarantee that the data it has gathered, evaluated, and analyzed in accordance with the rules and methodology pertaining to market and social research can be used by the Client for specific commercial purposes.
8.3
creative analytic 3000 is not liable for loss or damage arising from or in connection with the Client’s interpretation of the data/findings that have been submitted unless creative analytic 3000 has infringed its obligations as set out in Section 8.4.
8.4
Claims for loss or damage by the Client against creative analytic 3000 or its legal representatives or subcontractors or vicarious agents are only valid in cases of unlawful injury to a person’s life, body, or health, infringement of an essential contractual obligation, or a premeditated or grossly negligent infringement of obligations by creative analytic 3000 itself, its legal representatives, or its subcontractors or vicarious agents, or if some fault or defect in the research has been fraudulently concealed.
8.5
In the case of loss or damage that has been caused by negligent infringement of essential contractual obligations, creative analytic 3000 is only liable for loss or damage that is foreseeable or typical for the contract. The amount of compensation is limited to the total amount of the agreed net remuneration for the respective individual contract. Compensation for indirect loss or damage and unforeseeable consequential loss or damage is excluded.
8.6
If a claim is made against the Client as a result of creative analytic 3000 allegedly infringing its obligations and the Client wishes seek recourse against creative analytic 3000, he must notify creative analytic 3000 of this at the earliest possible opportunity. creative analytic 3000 is entitled to manage or supervise the legal dispute. This right on the part of creative analytic 3000 does not affect the Client’s rights of defense.
9 Delay of performance
9.1
If the Client falls behind when it comes to providing information that is necessary to carry out the research or fails to deliver the necessary documents on time, creative analytic 3000 is not obliged to adhere to any delivery or performance deadlines that have been agreed.
If — in spite of creative analytic 3000 having set an appropriate deadline — the Client fails to fulfil his obligation to cooperate, creative analytic 3000 is entitled to terminate the contractual relationship for good cause, and demand compensation.
9.2
If delivery is postponed, creative analytic 3000 is only liable in cases of default. The Client can only enforce claims for loss or damage in accordance with Section 8.
9.3
If agreed delivery deadlines are not adhered to as a result of delays caused by force majeure, civil disturbance, industrial action, administrative measures, lock-outs, or disruptions for which creative analytic 3000 is not responsible (including those affecting a subcontractor), the period of performance is extended by the time it takes to eradicate the hold-up or disruption. creative analytic 3000 will notify the Client of the commencement and termination of such hold-ups or disruptions.
In the case of lasting or permanent disruptions due to force majeure or those for which creative analytic 3000 cannot be held responsible, creative analytic 3000 is entitled to terminate the contractual relationship for good cause while excluding any kind of claim for compensation.
10 Product tests
10.1
The Client indemnifies creative analytic 3000 against any claims made against creative analytic 3000 or employees of creative analytic 3000 arising from loss or damage caused by the product that is being tested.
10.2
The Client is responsible for ensuring that all the necessary chemical, medical, pharmaceutical or other technical checks/examinations/analyses have been carried out on the test product. He is responsible for the product’s suitability for the test, and if an inspection of the product (see above) was required and has duly taken place, he is responsible for confirming that there was no indication that the product could cause any kind of loss or damage. The Client is responsible for ensuring that all the necessary information that is prescribed in law or via other statutory provisions and/or which is required to use the product is made available to creative analytic 3000 so that it can be passed on to those people who are taking part in the test.
10.3
The provisions set out in the German Product Liability Act also apply.
11 Final provisions
11.1
The contractual relationships are exclusively governed by the substantive and procedural law of the Federal Republic of Germany.
11.2
Frankfurt-am-Main is the place of fulfilment and the place of jurisdiction.
11.3
The written form in the context of these General Terms & Conditions includes faxes and emails.