General Terms and Conditions Definitions
The terms listed will have the following specific meaning throughout the entirety of this contract:
The written acceptance of an offer of market and social research services from IFF by a client.
The party for whom the company rende rs the services described in the offer .
With regard to the services rendered, all information, data or material of any kind and in any form that is passed by one party the other party within the framework of the contract, including said contract and any other material that the receiving party derives from , or bases on, the information, data or material supplied by t he disclosing party. Excluded is all information or ma terial that (a) is already available to the general public or will be known to the general public (without this being disclosure on the part of the receiving party or of a third party to which the receiving party imparted this information); (b) previous to its disclosure by the disclosing party, was already in the lawful possession of the receiving; (c) the receiving party obtained from a third party authorized to disclose this information to the receiving party; o r (d) must be disclosed by law or due to st atutory regulations .
The current terms and conditions along with the offer , which together form the entire agreement between the parties. In the event of a conflict the current terms and conditions have precedence over the terms stated in the quote , unless those parties have agreed in writing that certain terms contained in the offer have precedence over the current term s and conditions .
for market and social research. The tailor made research studies developed specifically for the individual customer and carried out by IFF („Custom Research Services“) .
Findings of the survey, reports, data, summaries, comments, discussions and/or analyses delivered according to contract to the client by IFF.
The remuneration invoiced to the client by IFF for the rendering of services in accordance with the offer.
Intellectual property rights
Copyright s , database rights, brand, trading and company names , service mark, registered and unregistered drafts, patents and/or know how, rights to confidential information as well as all othe r intellec t ual property rights of any nature whatsoever and regardless of whether these intellectual property rights, that exi st in any part of the world, have been registered or not.
Multi – Client – Studies
Non – customized market and social research services or non – tailored continuous market and social research , carried out by IFF for one or several customers, including but not limited to, syndicated studies .
The final written offer and/or cost estimate submitted to the client by IFF, in which the tasks, the services to be rendered, the time required as well as the remuneration to be paid are specified.
The customized market and social research and/or the services of multi – client – studies (depending on the case), whose content, scope and required timing are specified in the offer and/or that have been agreed to in another document between the two parties .
All forms of national or local taxes, levies, duties, withholdings, deductions, rates and fees, which are by their nature to be equated with taxes and which were introduced and are levied by the public or other authorities , together with all associated fines, penalties, interest, costs and surcharges.
References to the singular form in the current agreement automatically include the plural form and vice versa (provided that the context does not require a deviating interpretation).
1. The Agreement
1.1. The client commissions IFF with the rendering of services in the area of m arket research and IFF accepts this commission in accordance with the current agreement. Changes or additions must be made in writing.
1.2. The offer is deemed as accepted when the client: (i) informs IFF in writing ( per email is also possible ) that he has acc epted the offer; or (ii) informs IFF o therwise in writing ( per email is also possible ) that he wishes IFF to begin with the provision of the services (including – but not limited to – the drawing up of a commis sion for the service or a part of it).
1.3. If the client does not accept the offer within ninety (90) days, the offer (including IFF‘s cost estimation for the remuneration of said offer) loses its validity, unless an authorized representa tive of IFF previously stated in writing that the deadline is to be extended. IFF reserves the right to modify, or withdraw from, the offer (including the cost estimation for the remuneration of said offer) at any time , provided it has not been effective ly accepted by the client.
1.4 . Provided that no other written agreement has been put forward, the present agreement is deemed as effective for all services rendered by IFF for the client, as well as all results delivered by IFF to the client.
1.5 . If the client has the client has his own General Terms and Conditions, these shall not apply to the extent that they d eviate from or contradict the present terms and conditions. In the event of a conflict between two clauses, their minimum common ground s hall apply. This is the case even if the client should demand absolute precedence of his own General Terms and Conditions. Should it be 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.
2. Remuneration and payment
2.1. The remuneration agreed to by IFF and the client is always net. The stipulated remuneration is to cover the costs of carrying out the respective service. Unless otherwise agreed to in writing, IFF will invoice 50% of the estimated total project costs (excluding incentives) on commissioning of the project. This invoice is due upon receipt. The remaining 50% will be invoiced by IFF on completion of the project , payable 30 days from invoice date of issue .
2.2. 100% of all estimated expenditures for incentives will be invoiced on commissioning of the proj ect and will be payable on receipt (i.e. immediately).
2.3 The costs wi ll be invoiced in the currency indicated on the quote , and are excluding V.A.T. Value Added Tax will only be included in invoices issued to clients in France.
2.4. IFF reserves the right to cease the work on a project , if the respective invoice s have not been paid as agreed. If services are to be carrie d out in several phases and include interim data results, then a final invoice can be issued with the delivery of each set of interim data results. This is to be agreed upon in writing and in advance by both parties.
2.5. In the event of payment overdue, IFF is entitled to charge interest on arrears at a rate of 8 (eight) percentage points above the base interest rate . IFF also reserves the right to withhold s ervices of payments are overdue.
2.6. IFF has the right to invoice reimbursable costs incurred under the provision of services provided these costs have not been include in the remuneration.
2.7. The prices offered are based on the research design and the services set out in the client’s specification. In the event that the information provided in the specification proves to be incomplete or incorrect IFF reserves the right to make adjustments to the remuneration , so as to be able to invoice for any additional time that may have been needed in providing the services required (without additional services) , as well as any necessary additional costs. Other additional costs, for which IFF cannot be held responsible for and additional costs that were not foreseeable by the IFF at the time that the project was commissioned, despite due care, may be charged separately by IFF, provided that they are linked to a legitimate factual cause and are clearly r ecognizable for the client and are adequately defined. This shall also apply when the client is not responsible for these costs.
2.8. Unless otherwise expressly agreed to, the remuneration stated in the offers will be given in Euro. If the contract expressly provides for a currency other than the Euro, then the payment is to be made by the client in this currency and not in the local currency of the client at the current exchange rate.
2.9. If taxes are incurred (e.g. value added tax , withholding tax) on a remuneration that is payable to IFF (or its nominee) in accordance with the current agreement , then this remuneration will be increased accordingly so as to ensure that the net amount received by IFF (or its nominee) after the deduc tion of taxes is equal to the sum that would have been payable without the surcharge of such taxes .
3.1. Either of the parties can terminate the current agreement with immediate effect , if (a) the other party is guilty of a significan t breach of contract, for which no remedy is possible, or if there is a possible remedy and such remedy is not executed within 30 days of the breaching party being informed in writing, o r (b) the other party files for bankruptcy , goes into liqu idation (willing or officially ordered), dissolves , a receiver in insolvency or an administrator is commissioned for all or part of the company‘s assets , a respective application is filed or a meeting convened, in which a decision is to b e reached regarding the liquidation, bankruptcy or dissolution of t he other party or where similar actions have been initiated against the other party according to the laws of his place of residence or jurisdiction .
4. Changes , delays or cancellation.
4.1. If the client wishes to make changes to the services required (including timing ), IFF reserves the right to revise the offer respectively (including – but not limited to – a corresponding adjustment of the remuneration).
4.2. If a service is reduced, delayed, cancelled or prematurely terminated the final invoice will be made out for the agreed remuneration minus the expenses saved in accordance with § 649 BGB including all reasonable costs that IFF may incur due to the actions or omissions of the client, with all non – cancellable costs to third parties to which IFF had committed itself. Thus, the client is liable, for instance, for costs incurred due to services booked on location in advance , and which are delay ed , not carried out or not carried out to completion due to the actions or omissions of the client.
4.3 . The client must make all materials that IFF can reasonably require for the rendering of services and the delivery of results , promptly available to IFF . If the client does not fulfill this stipulation of the contract he is liable for subsequent delays and any reasonable additional costs that IFF incurs during the rendering of services .
4.4. Should it emerge after the project has been commissioned that the study cannot be conducted for me thodological reasons which could not have been foreseen by the client or by IFF (e.g. because the given quota of respondents cannot be reached) then IFF will inform the client of this immediately. If the two parties to the contra ct are unable to find a methodological solution to the problem, IFF shall be entitled to terminate the project on grounds of impracticability.
5. Sub – contracting
5.1. IFF has the right to transfer its rights under the current agreement to another company of the LEYHAUSEN Group, without the prior written consent of t he client , with regard to this matter , being required.
5.2. Subject to the foregoing provision neither party may transfer the contract entirely or in part without the prior written consent of the other party, whereby this compliance should not be unjustifiably denied.
5.3. To support the rendering of services, IFF has the right to subcontract parts of the se services and results to another company within the LEYHAUSEN Group or to a suitable third party. IFF is only then liable for the quality of the services rendered by the subcontractor if the said contractor was selected and paid directly by IFF . If the client demands the use of a specific subcontractor, IFF shall not be liable for the correctness, completeness or quality of that subcontractors work .
5.4. IFF guarantees that the requisit e discretion will be maintained 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. IFF ’s Duties
6.1. IFF will carry out projects it is commissioned with as advisory service in accordance with the accepted principle and rules of the market and social research (BVM, ADM und ESOMAR ).
6.2. IFF guarantees to render services professionally and with due care in accordance with the scientific methods of market and social research.
6.3. IFF does not guarantee that the data collected by it in accordance with the rules and methods of market and soc ial research will be able to be used by the client in a specific commercial way. IFF excludes all other expressed or implied guarantees, including the guarantee of marketability or suitability for a specific purpose.
6.4. IFF will make every reasonable effort to render services and to deliver the results within the estimated time frame specified in the relevant offer. IFF is, however, not liable for failure to comply with the specified time frame or for any loss or damaged suff ered by the client, provided that this non – compliance and this loss or damage are a result of a delay that were caused either directly or indirectly by an action or omission on part of the client and/or a third party for whom IFF is not contractually liabl e.
6.5. Should IFF agree to deliver results to the client in electronic form, both parties must make every reasonable effort to comply with all safety regulation s, of which IFF can inform the client in due time.
7. Intellectual property rights and public statements
7.1. The intellectual property rights to an offer compiled by IFF are and will remain the exclusive property of IFF.
7.2 The intellectual property rights to the results of multi – client study remain with IFF at all times. The client is entitled to the conclusions of the services, and after payment in full of the remuneration due to IFF, to the use of the results in good faith and for admissible internal busines s purposes or other for purposes stated in the offer, may not ho wever grant others the rights of use/licenses.
7.3. The intellectual property rights to the results of customized research services are entit led to the client provided that the remuneration due for services rendered by IFF has been paid in full .
7.4. It is agree d that IFF is entitled to use all results and other findings and information from the services rendered for internal purposes, as part of its databases, for its own purposes including in conju n ction with a relevant law suit , both during th e t erm of this current agreement as well as after its termination or expiration . IFF is obliged to preserve the anonymity of the client, the respo ndents or test persons thereby.
7.5. Notwithstanding the foregoing, the entire know – how and all intellectual property rights to procedures , principles and formats, as well as to all proprietary materials, software, programs, macros, algorithms, modules, methods and other materials that were used or complied by IFF within the scope of drawing up the offer or rendering the required services, and that are of a general nature and are not generated solely for t he client shall remain the sole property of IFF If IFF makes software available within the scope of the services req uired, the client acknowledges that the use of this software may be subject to separate licensing terms . It is the responsibility of the client to ensure that he is in possession of the necessary licenses for the use of third party software which is required for access to the findings or their alternative application. Unless this has been expressly agreed between th e par ties, IFF is not obliged within the framework of the services offered to obtain licenses for the use of third party software for th e client .
7.6. The client must not publish the results in such a way that the findings or data delivered by IFF are exaggerated, distorted or fa l sely represented. Moreover, the client must ensure that the publication does no damage to either IFF‘s reputation or its business . Publications in which comparisons are made between IFF and its competitors are permissible only upon IFF‘s express written consent, and only after IFF has authorized the concrete text that is to be published .
7.7. The client is to exempt IFF from all claims made against IFF as a result of the client’s deliberate or negligent, unlawful use of the properly obtained results, in particular using them to advertise unlawfully and/or incorrectly.
8.1. The receiving party is obliged to (a) use confidential information exclusively for the purpose of fulfilling its obligations under the current agreement; (b) treat any confidential information received from the communicating party as confidential and to neither copy it nor disclose it to a third party ; (c) refrain from disclosing confidential information, even in part, to other persons, unless these persons are the managing director, members of staff, the parent company, a subsidiary or a subcontractor agreed upon, who need to have knowledge of this confidential information in conjunction with the services being rendered and who have signed an agreement that has obliged them to secrecy and non – use ; and (d) to immediately obey any written request on the part of the communicating party and to destroy or return any confidential information (including all copies, summaries and excerpts of it) belonging to the communicating party which is at that time under the control of or in possession of the receiv ing party.
8.2 Without limiting the universal validity of paragraph 8.1 above, offers compiled by IFF contain confidential information about IFF. The client must treat as confident the content of offers as well as all information or ideas in an y form whatsoever that are disclosed during a sales call or a consultation. This information may not be disclosed to a third party or otherwise used, or be used to d erive other material from it, nor may the offers be use for any other purposes other than the inquiry into it with regard to the commissioning of a contract to IFF for the rendering of the servi ces stated in the offer.
9. Data protection , data property and storage of data.
9.1. Should the services offered by IFF require the provision of names of persons and/or other personal details through the client or his vicarious agents or the client’s designated third party for the processing and use of this data then the client must ensure that the provision of this data is legitimate according to statutory provisions or – sh ould it be necessary – that he has obtained the consent of the persons concerned.
9.2. In conjunction with the personal data that is provided by the client : (a) IFF may only use this data for the rendering of the required services ; (b) and t aking into account the leve l of technical development and the cost , IFF is required to adopt security measures for the pro tection of personal data against unauthorized or unlawful processing, acciden tal loss, destruction or damage ; (c) IFF must answer valid questions posed by the client so as to enable the client to monitor IFF’s compliance with the articles of the agreement. IFF is obliged to comply with the valid data pr otection laws and to securely store the personal data supplied by the client and to use this only in accordance with the valid data protection laws. Subject to the prior consent of the person concerned IFF reserves the right to contact this person for the purpose of participation in further studies .
9.3. Completed questionnaires, audio and video recordings as well as computer records that are compiled in conjunction with the rendering of services by IFF and/or its subcontractors are the property of the client and will be kept, stored, destroyed or erased in accordance with the valid laws, regulations and internal policies of IFF.
9.4. Insofar as the survey documentation is stored according to article 9.3 above, copies thereof can be made available to the client at his request and at his own cost. A perquisite to such a provision is that the anonymity of the respondent be maintained. IFF is not obliged to make copies of the survey results available to the client, if, at the sole discretion of IFF, such a provision would be a violation of ADM guideli nes, the German declaration of the ESOMAR codex and/or the valid data protection regulations . The client guarantees that all survey documentation that is made available to him by IFF will be kept and used according to the valid data protection regulations .
9.5 . The client shall fully indemni fy IFF or its delegated bodies for all claims and intangible damages incurred by IFF or its subcontractors in conjunction with a violation against the valid data protect ion regulations or other requirements, in particular against the current terms on the part of client.
10. Warranty and Liability
10.1. IFF’s liability and the client’s claims arising from defects are governed by the statutory provisions, unless ot herwise stated below. IFF guarantees th at the survey is carried out correctly and that the results are analysed scientifically in compliance with the scientific methods of market and social research , in accordance with article 6.2. Warranty claims for obvious defects shall only be permissible i f the client notifies IFF 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 mont hs after the last legally relevant results (data) are disclosed. The warranty period shall begin with the receipt of the last legally relevant data and shall last one year .
10.2. IFF is not liable to t he client for any loss or damage whatsoever incurred through or in conjunction with the client’s interpretation or recommen d ations in relation to the services supplied or o f the data/results supplied . The client hereby acknowledges that he is solely responsible for the consequences of the actions he takes as a result of the findings or due to his interpretation of the findi n gs, unless it is a result of a violation of duty on the part of IFF in terms with article 10.3 following.
10.3. The client shall only be entitled to make claims against IFF or its legal representatives or is 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 premeditate d or g rossly negligent breach of duty by IFF, its legal representatives or its vicarious agents, or in cas es 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, IFF 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 particu lar 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 IFF, and should the client intend to see recourse against IFF; IFF should be informed at the earliest possibl e time. IFF is entitled to conduct or be in charge of the lawsui t. This right of IFF shall not affect the client’s right of defense.
11. Product tests
11.1. Should the services include the testing or using of the client’s products, sample or test materials (including prototypes) and/or the products of a third party that the client supplies, it is the clients responsibility , notwithstanding anything to the cont rary in the current agreement, that (i) all contents, packaging and labeling meet all of the prevailing laws of the respective country; and (ii) the client is responsible for supplying disclaimers/waivers of respondents or to approve drafts for disclaimer s/waivers of respondents compiled by the company, that under certain circumstances may be required for the products, samp les or test materials concerned. The client shall be responsible for ensuring that all the necessary chemical, medical, pharmaceutical or other tests / studies / analyses of the test products 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 e xamination gave no indication that the product could cause harm. The client shall be responsible for ensuring that all information prescribe by the law or ordinances and / or necessary for the use of the product, is made available to IFF, so that the latt e r may pass it on to the persons participating in the test.
11.2. The client must indemnify IFF for all losses, third party claims , claims, damages, costs, expenses or liabilities (or lawsuits, investigations or proceedings therewith) that IFF may incur under certain circumstances , directly or indirectly due to or in connection with the tests or usage of these products, samples or test materials. If requested by IFF, the client must provide proof of adequate product liability, or for another liabili ty insurance determined by IFF.
11.3. IFF is not liable for the use, the loss or the damaging of these products, samples or test materials once they have been given over to the respondents.
11.4 . In all other respects, the regulations of the product liability laws shall apply.
12.1. The obligations contained in the current agreement, which due to their nature outlive the termination or expiration of this agreement, retain their validity even after the termination or expiration of this agreement.
12.2. Written notice or consent in the sense of these General Terms and Conditions is taken to include telefax and email .
12.3. IFF is not liable for failure to fulfill its obligations under this contract as a resu l t of fire, storm, riots, strikes, illness, shortage of materials, lockouts, war, floods, civil strife, terrorism, governmental decrees, local or national restrictions or bans.
12.4. The parties declare that they have not concluded the current agreement on the basis of any (made negligently or in good faith) statements, insurances, commitments, warranties or interpretations of a person (that is party to t he agreement or not), but based only on the explicit information contained in this agreement. This clause does not exclude the liability of the client or that of IFF for fraud or fraudulent misrepresentation.
12.5. Should any provision of this agreement be or become unlawful, void or unenforceable under the laws of a jurisdiction, then (i) the legality, validity or enforceability of the remaining provi sions of this agreement in this jurisdiction; or (ii) the legality, validity or enforce ability of that or any other provision of this agreement in accordance with the laws of another jurisdiction shall remain unaffected .
12.6. None of the provisions contained in the current agreement can be enforced by third parties.
12.7. The current agreement is subject to German laws. In the event of a dispute, the parties undertake to submit to the jurisdiction of the German courts, where lies the exclusive jurisdiction , whereby these courts are not solely responsible with regard to the enforcement of judicial decisions .