General terms and conditions . Projects of analysis
1. Validity of the terms and conditions
1.1. The following terms and conditions apply for all projects of analysis and their realisation as well as for future projects of analysis which the client assigns to Dr. Bergmann · Dr. Rohde & consulting group gmbh (subsequently referred to as BRCG) and for their realisation.
1.2. In case the client uses terms and conditions of his own, these do not apply as far as they differ from BRCG’s terms and conditions or are contradictory to them. In the case of opposing regulations, the minimum common portion of these regulations applies for the time being; in case this common portion cannot be fully defined, the legal consequence of § 306 II BGB applies.
1.3. Differing or additional agreements at the time of the contract conclusion or thereafter always require BRCG’s express approval.
2. Subject of the contract
BRCG carries out the orders accepted in the sense of consulting services in compliance with the accepted rules of the business of market and social research.
Content and scope of the services to be performed by BRCG are exclusively defined by the respective individual contract, as far as these terms and conditions do not contain sufficiently defined provisions.
3. Offer, project proposal
3.1. In principle, BRCG submits its offer to the interested party in the form of a project proposal or a project outline, which presents the task, the service to be provided for its accomplishment, the time needed for the analysis as well as the remuneration to be paid.
3.2. The respective offer submitted by BRCG is binding and valid for 30 days. After this period the offer is without obligation and may be newly drawn up with respect to issues of calculation and time.
3.3. The interested party obtains the project proposal only in order to decide whether to place the order for the project offered. Its content may only be published in part or completely or handed over to third parties after mutual, written agreement, unless otherwise agreed.
3.4. As far as the objective which the client pursues by placing the order is not obvious for BRCG, BRCG will point this out to him. In this case the client has to reveal his objective in writing.
3.5. BRCG cannot guarantee any exclusiveness for specific product fields, objects of analysis or methods or analysis, unless this is expressly agreed in writing. As far as exclusiveness is part of the agreement, its duration and – where appropriate – an additionally charged fee are to be defined.
4. Placing the order, cancellation
4.1. The offer is accepted by written or oral assent of the client. An oral assent is binding, the principal has to indicate particular regulations concerning the written form of the project ordering.
4.2. Alterations of the order after conclusion of the contract require a written agreement between the parties.
4.3. Should the principal cancel the order after placing it, but before the beginning of its processing, BRCG charges 30% of the contract value in order to compensate for planning and preparation expenses. Should the processing of the order have already started at the time of cancellation, BRCG charges 50% of that amount of the contract value which is due respectively after cancellation. This regulation can only be departed from in individual cases and by mutual agreement.
5.1. The remuneration quoted in the project proposal principally comprises all services offered by BRCG in the project proposal in connection with the accomplishment of the order. BRCG can demand an additional remuneration for supplementary services required by the client.
5.2. Additional costs for which BRCG is not responsible, as well as additional costs which were not to be expected at the time of ordering despite reasonable care, can be charged additionally by BRCG in case they have an objectively justified reason and if they are clearly identifiable and sufficiently determined for the principal. This provision also applies if the principal is not responsible for these additional costs.
5.3. Unless otherwise agreed in writing, 50% of the remunerations are due at the time of ordering, 25% at the start of data gathering and 25% at the time of delivery of the analysis results. In addition to the remunerations agreed, BRCG charges the statutory value added tax.
5.4. Unless otherwise agreed, the remuneration is payable due net immediately after issuing the invoice. In the case of default of payment BRCG is entitled to charge default interest amounting to eight percentage points above the base lending rate. In the case of defaulting payments BRCG also reserves the right to retain the service ordered.
5.5. The principal is only entitled to offset against any counterclaims in case the counterclaims are undisputed or legally proven by a court.
6. Execution of the order
6.1. BRCG accomplishes the order according to the generally accepted methods of market and social research unless otherwise agreed by the parties.
6.2. If it becomes obvious after the time of ordering that the analysis cannot be carried out due to methodical reasons which neither the principal nor BRCG were able to foresee and are responsible for (e.g. because the pre-determined rate of persons to be interviewed cannot be achieved), BRCG immediately informs the principal. If both parties do not find a methodical solution to the problem, BRCG is entitled to return the order because of impossibility to realise. In this case, the legal consequences are defined by §§ 275, 326, 441 III BGB.
6.3. A cooperation of the principal in the analysis and a review of execution and results of the analysis by the principal require a particular agreement. In this case BRCG is obliged to ensure the anonymity of the interviewees or the test persons, unless otherwise determined by the analytical approach or by a specific agreement. Additional costs arising therefrom have to be borne by the principal.
6.4. BRCG has the right to conclude suborders with third parties in order to accomplish its tasks defined by the order. BRCG guarantees that in such a case the necessary confidentiality is ensured and the rules and methods of market and social research as well as other legal stipulations, e.g. data protection, are adhered to. If the principal designates a particular subcontractor, BRCG is not liable for the correctness, completeness or quality of the work of such a subcontractor, unless BRCG is responsible for a breach of duty as defined in paragraph 9.3.
7. Use of project report and results of analysis
7.1. The principal obtains the project reports (i.e. the written or electronic presentation of the analysis and its results, the description of the research approach, the method of analysis, the statistical analysis of the results, recommendations for decision and action) from BRCG for his own use exclusively. Unless otherwise agreed, their content may only be published completely or in part or be transferred to third parties by mutual agreement. For such a purpose the project reports must not be copied, printed or be stored, processed or disseminated in information and documentation systems of whatsoever kind. These regulations do not apply for the results of analysis themselves, see no. 7.2.
If the principal intends to use complete or partial quotations from the project report, he has to indicate the quotations and refer to BRCG as the author.
7.2. The results of analysis (the data gathered through the analysis) are only made available to the free disposal of the particular principal, unless otherwise agreed in writing.
Publications involving a competitive comparison and referring to BRCG are only admissible after BRCG has expressly agreed and after BRCG has released the particular text for publication.
The principal exempts BRCG from all claims which would be asserted against BRCG because the principal has employed the results properly gathered in an intentionally or negligently illegal way, particularly through illegal / untrue advertising.
7.3. If the subject of the contract consists of study results wich are gained from multi-client studies, these results of analysis are available to the principal. However, he is not granted an exclusive usufruct. The principal may only employ the results for his own purpose. Unless differently agreed, the content of results from joint studies may only be published in total or partly or be made available to third parties after BRCG’s consent. Results of analysis from joint studies may also not be copied or printed or be stored, processed or disseminated in information or documentation systems of whatsoever kind for the purpose of publication or for the purpose of passing them on to a third party, unless BRCG has given its prior consent.
8. Copyrights, property rights and secondary contractual duties
8.1. BRCG retains all rights resulting from the copyright law. The principal’s copyright with respect to documents which he has created remains unaffected.
8.2. Unless otherwise agreed, BRCG remains the owner of the material resulting from the execution of the order – data media of any type, questionnaires, further written documents etc. – and of the resulting data. The anonymity of the interviewees or test persons must not be endangered by an agreement of this kind.
8.3. BRCG commits itself to keep survey records in electronic form for a period of one year and data media for a period of two years after delivery of the project report, unless otherwise expressly agreed.
8.4. BRCG and the principal bind themselves to treat all information mutually exchanged during the order execution as strictly confidential and to employ them exclusively for the accomplishment of the order. The employees have to be obliged correspondingly. This obligation is also valid for the time after finishing the order execution. It does not apply for such information for which the other party proves that it was known before the receipt or known to the public before receipt or that it became accessible to the public after the receipt without the receiving party being responsible for it.
9. Guarantee and liability
9.1. The liability of BRCG and the claims of the principal in case of defects are subject to the legal regulations, unless subsequently otherwise agreed.
9.2. BRCG does not guarantee that the data correctly gathered, evaluated and analyzed by BRCG according to the rules and methods of market and social research can be employed commercially in a specific way by the principal. BRCG is not liable for any damages which result from the interpretation of the delivered results/data by the principal or in connection to this interpretation, unless there is a breach of duty by BRCG as defined in paragraph 3.3.
9.3. Liability for damages of the principal against BRCG or its legal representative or vicarious agent only exist in case of culpable injury to life, body or health, culpable breach of an essential duty from the contract or in case of a breach of duty based on intention or gross negligence by BRCG, its legal representatives or vicarious agent or in case of fraudulent concealment of a flaw in the analysis.
9.4. In case of damages caused by negligent breach of essential contractual duties BRCG is only liable for damages which are to be regarded as typical within the scope of the contract and which are predictable; BRCG’s liability is limited to a maximum amount equivalent to the project remuneration.
10.1. If the principal gets into arrears with the transfer of the information necessary to perform the analysis or with making the necessary material available, BRCG is not obliged to observe agreed deadlines for deliveries and services.
If the principal does not fulfil his cooperative duties despite an adequate extension of time granted by BRCG, BRCG is entitled to terminate the contract for substantial reasons and to claim damages.
10.2. In case of delayed delivery BRCG is only liable if in default. The principal can only assert claim for damages as defined by No. 9.
10.3. If agreed delivery deadlines are not observed because of delays resulting from force majeure, uproar, strike, mandatory regulations and measures, lockouts or stoppages which BRCG is not responsible for, also in case of a subcontractor, the service period is extended according to the time span needed to eliminate the disorder. BRCG informs the principal about beginning and end of the disruption.
In case of permanent business disruptions due to force majeure or in case of permanent business disruptions which BRCG is not accountable for, BRCG is entitled to terminate the contractual relationship for significant reasons.
11. Place of fulfilment and venue, choice of law
11.1. Place of fulfilment and venue are the company domicile of BRCG, as long as the parties are merchants in a legal sense.
11.2. Unless otherwise expressly agreed, the contractual relationship between BRCG and the principal is subject to the law of the Federal Republic of Germany.
Date: August 2005
Dr. Bergmann · Dr. Rohde & consulting group GmbH
Wasserstr. 219 (Trimonte Park)