STANDARD TERMS AND CONDITIONS

Standard Terms and Conditions

AMR Advanced Market Research GmbH 

(The “Company”) 

Standard Terms and Conditions

Definitions

“Acceptance” means written acceptance by a Client of a Proposal by the Company for the market and social research Service.

“Client” means the party to whom the Company provides the Service as set out in the Proposal.

“Confidential Information” means in respect of the Service all information, data or material of whatsoever nature in any form, which either party, discloses to the other pursuant to this Contract including the Proposal and anything the receiving party creates which is derived from or based upon the information, data or materials disclosed to it by the disclosing party. It shall not include any information or materials which: (a) is in or enters into the public domain (other than as a result of disclosure by the receiving party or any third party to whom the receiving party disclosed such information); (b) were already in the lawful possession of the receiving party prior to the disclosure by the disclosing party; (c) are subsequently obtained by the receiving party from a third party who is free to disclose them to the receiving party; or (d) are required to be disclosed by law or regulatory authority.

“Contract” means these terms and conditions together with the Proposal, which constitute the entire agreement between the parties. In the event of conflict these terms and conditions prevail over those in the Proposal, unless the parties have agreed in writing that specific terms in the Proposal prevail over those in these terms and conditions.

“Custom Research Service” means the bespoke research studies designed specifically for the Client, which is carried out on a case‐by­‐case basis by the Company.

“Deliverables” means survey results, reports, data, summaries, comments, discussion, and/or analysis provided by the Company to Client pursuant to the contract.

“Fee” means the fee(s) to be charged by the Company for the provision of the Services to the Client set out in the proposal.

“Intellectual Property Rights” means copyright, database rights, trademarks, trade or business names, service marks, registered and unregistered designs, patents and/or know how, rights in confidential information and any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not which may subsist in any part of the world.

“Multi-­customer Service” means the non­‐Custom Research Service or non­‐bespoke continuous market research service provided by the Company to one or more clients, including without limitation, any syndicated service.

“Proposal” means the written final proposal and/or quotation provided by the Company to the Client, stating the nature of the issue to be resolved, the services to be rendered in order to solve it, the time required for the study and the fee due.

“Service” means the Custom Research Service and/or Multi-­customer Service (as the case may be), whose nature, scope and time required is specified in the Proposal and/or other document agreed between the parties.

“Tax” means all forms of tax, charge, duty, withholding, deduction, rate, levy and governmental charge (whether national or local) in the nature of tax what‐so ever and whenever created, enacted or imposed by any governmental, state, federal, local municipal or other body, together with all related fines, penalties, interest, charges and surcharges.

1. The Contract

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).

1.3 If the Client has not accepted the Proposal within three (3) calendar months then the Proposal (including the Company’s Fee quotation set out in the Proposal) will expire, unless an authorized representative of the Company has agreed to extend this period in advance in writing. The Company reserves the right to amend or withdraw the Proposal (including the Fee quotation set out in the Proposal) at any time until the Client formally accepts it.

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. 

1.6 The Company cannot guarantee exclusiveness for specific product fields, objects of research or methods of research, unless this is expressly agreed in writing. When exclusiveness is stipulated, its duration and any additional fee that may be incurred as a result must be laid down.

2. Payment of Fees

2.1 The fees agreed upon are intended to pay for the cost of executing the study in question. Unless otherwise agreed in writing, 30% of the agreed fee shall be payable on commissioning the project, a further 40% when data collection commences (i.e. once the necessary preparations have been completed), and the final 30% on delivery of the 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.

2.2 Fees are payable without any deductions directly on receipt of the invoice. On delay of payment, the Company shall be entitled to charge interest on arrears at a rate of eight percentage points above the base interest rate. The Company also reserves the right to withhold services if payments are overdue.

2.3 The Company shall be entitled to recover reimbursable expenses incurred pursuant to the provision of the Services, unless such expenses have been included in the Fees.

2.4 If the Fee has been based upon information provided by the client, who is subsequently shown to be incomplete or incorrect, the Company shall be entitled to increase the Fee to take account of any resulting additional time involved in providing the Services (or additional services) and any necessary additional costs incurred by the Company. Other additional costs which the Company is not responsible for and additional costs which were not foreseeable to the Company at the time the project was commissioned, despite due care, may be charged separately by the Company, provided they are linked to a legitimate factual cause and are clearly recognizable for the Client and adequately defined. This shall also apply when the Client is not responsible for these costs

2.5 Unless expressly stated otherwise the Fee in any Proposal is denominated in Euro. If the Contract specifically involves a currency other than Euro, then the Contract is subject to exchange rate movements for the period between the Acceptance of the Service and its payment. Should exchange rate movements occur and involve the Company incurring additional costs which are not envisaged at the time of formation of the contract, the Company is entitled to pass on the extra costs to the Client, which extra costs shall be confirmed by the Company to the Client from time to time in writing and added to the next invoice issued by the Company.

2.6 If any amount payable to the Company (or its nominee) pursuant to this Contract is subject to Tax (e.g. value added tax (VAT), deduction at source), that amount shall be increased so as to ensure that the net amount received by the Company (or its nominee) shall, after Tax, be equal to that which would have been received had the payment and any increased payment not been subject to Tax.

3. Termination

3.1 Either party may terminate this Contract immediately (a) for a material breach by the other which is incapable of remedy or, if capable of remedy, is not remedied within 30 days of written notice being given to the defaulting party or (b) if the other party becomes bankrupt or goes into liquidation (whether voluntary or compulsory), is dissolved, or has a receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution for the winding‐up, bankruptcy or dissolution of the other party or the other party suffers any similar process under the law of its domicile or place of its jurisdiction.

4. Changes, Delay or Cancellation

4.1 If the Client requests changes to the Service (including timing) the Company reserves the right to revise the Proposal (including, without limitation, adjusting the Fees accordingly).

4.2 If a Service is shortened, delayed, cancelled or terminated early by the Client, the final invoice will include the payment of the agreed fees with a deduction for all costs saved according to § 649 BGB, plus any reasonable costs and expenses incurred by the Company due to the Client’s acts or omissions together with all non-­cancellable third party costs the Company has committed to. For example, the Client shall be liable for the costs and expenses incurred by the Company for pre-­booked fieldwork, which is delayed, not used or not fully used by reason of the Client’s acts or omissions.

4.3 The Client is responsible for the prompt delivery to the Company of all material reasonably required by the Company to provide the Services and Deliverables. If the Client fails to comply with this clause the Client shall be liable for the consequential delays and reasonable additional costs and expenses incurred by the Company in providing the Service.

4.4 Should it emerge after the project has been commissioned that the study cannot be conducted for methodological reasons, which could not have been foreseen by the Client or by the Company, and which were beyond their control, then the Company shall inform the Client of this immediately. If the two parties to the contract are unable to find a methodological solution to the problem, the Company shall be entitled to terminate the project on the grounds of impracticability.

5. Subcontracting

5.1 The Company shall be entitled to assign its rights under this Contract to any AMR Advanced Market Research partner without requiring the Client’s prior written consent.

5.2 Save as set out above, neither party may assign all or any part of the Contract without the prior written consent of the other party, which shall not be unreasonably withheld.

5.3 To assist the Company in providing the Service the Company shall have the right to subcontract any part of the Service and Deliverables to any AMR Advanced Market Research GmbH partner or to appropriate third parties, agencies or fieldworkers. The Company is only responsible for the quality of the service provided by subcontractors if those subcontractors have been selected and paid for directly by the Company. If the Client designates a specific subcontractor, then the Company shall not be responsible for the accuracy, completeness or quality of the work of that subcontractor.

5.4 If subcontracts are to be awarded, the Company informs the Client of this in advance and at the earliest possible time. At the Client’s request, the identity of the subcontractor must be revealed. 

The Company promises that the requisite discretion will be maintained also in awarding such subcontracts and that the rules and methods of market and social research will be observed, along with any other legal requirements, such as data protection.

6. Company’s Obligations

6.1 The Company will carry out the projects it is commissioned with as advisory services in accordance with the accepted principles and rules of the market and social research profession (ADM and ESOMAR).

6.2 The Company warrants that it shall use reasonable skill and care in providing the Service and the Deliverables are analyzed scientifically in accordance with the accepted methods of market and social research.

6.3 The Company does not guarantee that the data correctly collected, processed and analyzed by it in accordance with the rules and methods of market and social research will be able to be used by the Client in a specific commercial way. The Company disclaims all other warranties, either expressed or implied, including warranties for merchantability, and fitness for a particular purpose.

6.4 The Company will use all reasonable endeavors to provide the services, and to deliver any Deliverables, in accordance with the estimated timings set out in the applicable Proposal. However, the Company shall not be liable for any failure to adhere to the quoted timings or for any loss or damage suffered by the Client resulting from any delay caused directly or indirectly by any act or omission by the Client and/or by any third party for whom the Company is not contractually responsible hereunder.

6.5 Where the Company agrees to supply a Deliverable to the Client in electronic format, both parties shall use their best endeavors to comply with any security specifications that may be issued by the Company to the Client from time to time.

7. Intellectual Property Rights and Public Statements

7.1 The Intellectual Property Rights in any Proposal issued by the Company are and shall remain the exclusive property of the Company.

7.2 For Multi­‐customer Services the Intellectual Property Rights in the Deliverables vest in the Company at all times. The Client will be entitled on the completion of the Service and after payment of all Fees due to the Company to use the Deliverables for its bona fide and proper internal business purposes or other purposes specified in the Proposal, but shall not grant any rights of utilization ­‐ licenses to others.

7.3 For Custom Research Services, the Intellectual Property Rights in the Deliverables vest in the Client subject to payment of all Fees due to the Company in respect of such Deliverables.

7.4 It is agreed that the Company shall be entitled, both during and after the termination or expiry of this Contract, to use all Deliverables and other findings and records resulting from the Services for its own internal purposes, as part of its own databases and for purposes connected with its business, including in connection with any relevant legal dispute. The Company is obliged to ensure that the anonymity of the Client, respondents or test participants is protected.

7.5 Notwithstanding clauses above, at all times all know-­how and any intellectual Property Rights of whatsoever nature in and to any techniques, principles and formats and in all proprietary materials, software, programs, macros, algorithms, modules, methodologies and anything else used by or created by the Company in putting together a Proposal or carrying out the Services which are of a generic nature or otherwise not produced exclusively for the Client shall at all times remain the exclusive property of the Company.

Where software is to be provided by the Company as part of the services, the Client acknowledges that its use of such software may be subject to separate license terms. For the avoidance of doubt, the Client shall be responsible for ensuring that it is appropriately licensed to use any third party software required to access or otherwise use the Deliverables. Unless expressly agreed between the parties, the Company shall not be required to procure the grant of any license of third party software to the Client as part of the Services.

7.6 Notwithstanding clauses 7.2 and 7.3 above, the research results are made available to the Client for internal use only, unless the Company agrees to their being passed on to third parties or published, in full or in part, or unless the Company releases them for publication due to the nature of the matter or due to copyright issues or property rights. Neither may they be duplicated, printed or stored, processed or disseminated in documentation or information systems of any kind for the purpose of passing them on to third parties or publishing them, without the prior consent of the Company. 

These provisions shall also apply to the research results resulting from Multi‐customer Service or syndicated studies. The Client shall not hold a sole right of utilization in these.

7.7 The Client shall not disclose any Deliverable publicly in any manner that exaggerates, distorts or misrepresents the findings of or data supplied by the Company or is likely to harm the Company’s reputation or business. Publications, in which comparisons with competitors are made, are only permitted with the express written permission of the Company, which must first authorize the concrete text to be published.

7.8 The use of research results in the preliminary stages of proceedings of a legal nature (e.g. lawsuits, arbitration proceedings, proceedings by government authorities) is prohibited without the prior written consent of the Company – save when legal/administrative regulations or court rulings have precedence.

7.9 If the Client wishes to cite the research report, in part or in whole, these citations must be recognizable as such and the Company must be named as being the author of the research report.

8. Confidentiality

8.1 The receiving party agrees that it shall (a) use the Confidential Information only to fulfill its obligations pursuant to this Contract; (b) treat all Confidential Information of the disclosing party as secret and confidential and shall not copy or disclose any such Confidential Information to any third party; (c) not, without the express written consent of the disclosing party, disclose the Confidential Information or any part of it to any person except to the receiving party’s directors, employees, parent company, subsidiaries or agreed subcontractors, who need access to such Confidential Information for use in connection with the Services and who are bound by appropriate confidentiality and non-­use obligations; and (d) comply promptly with any written request from the disclosing party to destroy or return any of the disclosing party’s Confidential Information (and all copies, summaries and extracts of such Confidential Information) then in the receiving party’s power or possession.

8.2 Without limiting the generality of Clause 8.1 above, Proposals issued by the Company contain confidential information about the Company and the Client shall keep secret and not disclose the content of any Proposal or any information or ideas, in whatever form, disclosed during or in connection with any pitching or briefing process, to any third party or otherwise make use of or derive other material from it, without the prior written consent of the Company or use any Proposal other than for the purposes of considering its contents with a view to appointing the Company to provide the Services set out therein.

9. Data Protection and Data Ownership and Storage

9.1 In case that the Service of the Company requires the supply of individual’s names and/or other personal data by the Client or by its vicarious agents or by third parties named by the Client for the purpose of processing or controlling such data, the client must ensure that it has the right under the data protection laws and regulations to provide such data or – where required – that it has obtained the consent from the relevant individuals.

9.2 In connection with personal data supplied by the Client, the Company shall: (a) process such data only for purposes of providing the Services; (b) take any technical and organizational security measures against unauthorized or unlawful processing of, accidental loss of, destruction of or damage to personal data as may be required, having regard to the state of technological development and the cost of any measures; and (c) answer the Client’s reasonable enquiries to enable the Client to monitor the Company’s compliance with this clause. The Company undertakes to comply with the valid data protection laws and regulations and keep personal data supplied by the Client secure and only use such data in accordance with valid data protection laws and regulations. Subject to prior consent from an individual the Company reserves the right to re-­contact an individual for participation in further surveys.

9.3 Completed questionnaires, audio and visual tapes and computer records prepared by the Company or by subcontractors on behalf of the Company during the course of providing the Services shall remain the property of the Company and shall be retained, stored and destroyed/erased in accordance with applicable laws, regulations and the Company’s internal policies.

9.4 Provided the same are still held by the Company pursuant to Clause 9.3, the Client may, on request and at its own expense, be supplied with copies of the survey records. Precondition for the supply of such data is that the anonymity of respondents will be protected. The Company shall not be required to provide copies of survey records to the Client if, in the Company’s sole opinion, to do so would be in breach of the ADM guidelines, the Declaration for the Territory of the Federal Republic of Germany concerning the ICC/ESOMAR International Code of Market and Social Research and/or applicable data protection laws and regulations. The Client warrants that it shall store and use any survey records provided by the Company strictly in compliance with all applicable data protection laws and regulations.

9.5 The Client shall indemnify the Company or its subcontractors totally against all claims and moral prejudices which the Company or its sub-­contractors may face resulting from a breach by the Client of valid data protection law and regulations or any other regulation, or, in particular, any of the preceding stipulations.

10. Limits and Exclusions of Liability

10.1 The Company’s liability and the Client’s claims arising from defects are governed by the statutory provisions, unless otherwise stated below.

The Company guarantees that the survey is carried out correctly and the results are analyzed scientifically in accordance with accepted market research techniques according to 6.2. Warranty claims for obvious defects shall only be permissible if the Client notifies the Company 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 are disclosed. The warranty period shall begin with the receipt of the last legally relevant data and shall last one year.

10.2 In no event shall the Company be liable to the Client for any loss or damage whatsoever with respect to any conclusions or recommendations made by the Company in relation to the Services and contained in the Deliverables. The Client hereby acknowledges that it shall be solely responsible for the consequences of any action taken by it based on the Deliverables or pursuant to its interpretation of the Deliverables, unless the Company is in breach of duty according to Section 10.3.

10.3 The Client shall only be entitled to make claims against the Company or its legal representatives or its subcontractors or vicarious agents for damages in cases of culpable injury to life, body or health, in case of a culpable violation of a duty that is essential to the contract, or in cases of premeditated or grossly negligent breach of duty by the Company, its legal representatives or its vicarious agents, or in cases of fraudulent concealment of a defect in the survey.

10.4 In the case of damage caused through the negligent breach of key contractual duties, the Company shall only be liable for foreseeable, typical damage.

10.5 The amount of the damages shall be limited to the total amount of the net remuneration for the particular project in question. Compensation for indirect damage and unforeseeable consequential damage shall be excluded.

10.6 Should the Client face claims for damage on account of alleged breach of duty by the Company, and should the Client intend to seek recourse against the Company; the Company must be informed at the earliest possible time. The Company is entitled to conduct or be in charge of the lawsuit. This right of the Company shall not affect the Client’s right of defense.

11. Product Testing

11.1 Notwithstanding anything to the contrary in this Contract, where the Service involves testing or using the Client’s products, samples or test materials (including prototypes) and/or third party products supplied by Client, the Client warrants, represents and undertakes that (i) any content, packaging or labeling shall comply with all relevant laws in all relevant territories; and (ii) it shall be responsible for either providing any respondent disclaimer/waiver or approving any draft respondent disclaimer/waiver prepared by the Company which may be required for the products, samples or test materials in question.

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. It shall assume responsibility for the suit­‐ability of the product for the test and, to the extent that an examination was necessary and has taken place (see above), that this gave no indication that the product could cause any harm.

The Client shall be responsible for ensuring that all the information prescribed by the law or ordinances and/or necessary for the use of the products is made available to the Research Agency, so that the latter may pass it on to the persons participating in the test.

11.2 The Client shall indemnify the Company from and against any losses, third party claims, demands, damages, costs, charges, expenses or liabilities (or actions, investigations or other proceedings in respect thereof) which the Company may suffer or incur relating to or arising directly or indirectly out of or in connection with testing or using such products, samples or test materials. If required by the Company, the Client shall produce evidence of sufficient product liability or other indemnity insurance as determined by the Company.

11.3 The Company shall not be liable in any circumstances for the use of, loss of or damage to any such products, samples or test materials, once they have been supplied to respondents.

11.4 In all other respects, the regulations of the product liability laws shall apply.

12. Miscellaneous

12.1 The obligations in this Contract, which by their nature survive termination or expiry of this Contract, shall so survive.

12.2 Written notice or consent in the sense of these General Terms and Conditions is taken to include telefax and e-mail transmissions.

12.3 The Company shall not be liable for failure to perform its obligations hereunder due to, fires, storms, riots, strikes, disease, shortages of materials, lock-­outs, wars, floods, civil disturbances, terrorism, governmental control, restriction or prohibition whether local or national.

12.4 The parties agree that they have not entered into this Contract in reliance upon any statement, representation, covenant, warranty, undertaking or understanding (whether negligently or innocently made) of any person (whether party to this Contract or not) except as expressly set out in this Contract. Nothing in this clause, however, shall exclude any liability on the part of either the Client or the Company for fraud or fraudulent misrepresentation.

12.5 If any provision of this Contract is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that shall not affect or impair: (i) the legality, validity or enforceability in that jurisdiction of any other provision of this Contract; or (ii) the legality, validity or enforce-­ability under the law of any other jurisdiction of that or any other provision of this Contract.

12.6 No term of this Contract shall be enforceable by a third party.

12.7 German law governs this Contract and in the event of a dispute the parties agree to submit to the jurisdiction of the German courts, which shall be exclusive, save in respect of the enforcement of any judgment, where it shall be non-­exclusive jurisdiction of the German courts, which shall be exclusive, save in respect of the enforcement of any judgment, where it shall be non‐exclusive.