General Terms and Conditions
ipi Institute für Produkt-Markt-Forschung GmbH (ipi)
1. Validity of these Terms and Conditions
1.1 The following General Terms and Conditions shall apply for all product and market research projects and for their execution, as well as for any future product and market research projects which the Client instructs ipi to carry out and for their execution. These Terms and Conditions shall only apply to legal transactions with individuals who act in pursuance of a commercial or professional freelance activity (entrepreneur as defined in § 14 of the German Civil Code). This includes legal entities subject to public law and separate estates subject to public law.
1.2 If the Client has his own General Terms and Conditions, these shall not apply to the extent that they deviate from or contradict ipi'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.
1.3 Should agreements be reached that are at variance with these Terms and Conditions, or that amend them, either on conclusion of the contract or at a later time, these shall require ipi's written consent.
2. Subject of the Contract
ipi will carry out the projects it is commissioned with as advisory services in accordance with the accepted principle and rules of the product and market research profession. Through its services, ipi will support its clients in their decisions. However, it will not itself make these decisions. The nature and scope of the services provided by ipi shall be governed exclusively by the individual contract, unless provisions of these Terms and Conditions also apply.
3. ipi Quotation, Research Proposal
3.1 ipi shall on principle submit an offer to interested parties in the form of a research proposal 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.
3.2 The interested party shall receive the research proposal for the sole purpose of deciding whether to award the contract for the study offered. In the absence of any other agreement, the contents of the proposal must not be 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 study not be obvious to ipi, the latter will inform the Client accordingly. The Client must then disclose his objectives in writing.
3.4 The Client may not issue any instructions to ipi that might falsify the actual findings or outcome of the tests it performs.
3.5 ipi 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.
3.6 Any changes in the project that are made after the conclusion of the contract must be confirmed in writing by ipi.
4.1 The fee stated in the research proposal shall on principle cover all the services offered by ipi in connection with carrying out the project outlined in the research proposal. ipi is entitled to demand additional payment for supplementary services that are requested by the Client.
The price quoted in the offer refers to the respective research scope and is to be regarded as a ballpark figure. Deviations are permitted if they do not unduly compromise the result and serve to complete the order in an appropriate manner. If necessary, the ballpark figure can be exceeded by up to 10 percent without ipi having to notify the Client. Should unforeseen events occur that could lead to the ballpark figure calculated being exceeded by more than 10 percent, the Client must decide whether to pursue or cancel the research. If the order is canceled, ipi will invoice the costs that have been incurred thus far.
4.2 Additional costs which ipi is not responsible for and additional costs which were not foreseeable by ipi at the time that the project was commissioned, despite due care, may be charged separately by ipi, provided they are linked to a legitimate factual cause and are clearly recognizable for the Client and are adequately defined. This shall also apply when the Client is not responsible for these costs.
4.3 The fees agreed upon are intended to pay for the cost of executing the study in question. Therefore, the following terms of payment for ipi services apply:
a) For orders valued at up to € 5,000, payment must be paid net on invoicing.
b) For orders valued at over € 5,000, 50 percent must be paid net upon placement of the order, excluding value-added tax (V.A.T.), with the remaining 50 percent paid net no later than 14 days after invoicing.
4.4 The costs of the test objects, auxiliary materials, and procurement expenses and delivery costs are borne by the Client and are invoiced upon finalization of all purchases. Payment must be made net on invoicing.
4.5 If products and objects of the Client must be accessed for the contractual performance of the service owed by ipi, ipi shall not be liable for compensation for damage to or destruction of these objects resulting from the contractual performance.
4.6 During storage, ipi's liability is limited to the same due diligence as for its own affairs.
4.7 Return of the Client's test objects and auxiliary materials is at its own cost and risk; however, return is performed only upon the Client's express request.
4.8 The Client shall only be entitled to offset the fee against counterclaims if those counterclaims are undisputed or have already been established judicially.
5. Execution of the Project
5.1 ipi shall carry out the project – in line with Section 2 – by means of the scientific methods of product and market research.
5.2 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 ipi, and which were beyond their control, then ipi shall inform the Client of this immediately. If the two parties to the contract are unable to find a methodological solution to the problem, ipi shall be entitled to terminate the project on the grounds of impracticability. In this case, ipi will invoice the costs that have been incurred thus far.
5.3 The co-operation of the Client in the study, and any check-ups by the Client on the execution and the results of the study, shall require a separate agreement. If additional costs arise from this, they must be borne by the Client. In such cases, ipi is – as always – obliged to ensure that the anonymity of respondents or test participants is protected and the neutrality of the study and test results is safeguarded.
5.4 ipi shall be entitled to subcontract parts of the overall project to other departments within its own organization in order to fulfill its obligations.
If subcontracts are to be awarded outside its own organization, ipi may inform the Client of this. At the Client's request, the identity of the subcontractor must be revealed. The Client's commitment starts when the order is awarded as long as the Client does not dissent to this in writing.
5.5 If the Client demands the use of a specific subcontractor, ipi shall not be liable for the correctness, completeness or quality of that subcontractor’s work, unless ipi is in breach of duty according to Section 8.4.
6. Copyright, Property Rights and Accessory Duties
6.1 The rights vested in ipi by the copyright act shall remain with ipi. The Client admits that the sole copyright and all the proprietary rights in research concepts, proposals, methods, procedures and methodologies, graphical and tabulated presentations that originate with ipi, and in any other know-how represented by the services of ipi, are entitled solely to ipi. The Client’s copyright in the documents drawn up by him shall remain unaffected by this. Picture and video material that shows employees or test persons of a study merely serves internal documentation and evaluation purposes and must at no point be furnished to third parties or be duplicated, printed, processed, distributed or published. All protective rights in conjunction with development orders (utility models, patents, design patents, etc.) remain with the Client. ipi is remunerated by the Client in accordance with the guidelines set forth by the employee inventions law.
6.2 The materials arising in connection with executing the project – all forms of data carriers, questionnaires, additional written documents, etc. – and the data collected shall remain the property of ipi, unless otherwise agreed. The anonymity of the respondents or test participants may not be endangered by such an agreement.
6.3 ipi shall undertake to store the survey records for a period of one year and data carriers for a period of six month from the time of submitting the research report, unless expressly agreed otherwise.
6.4 ipi and the Client shall undertake to treat all the information supplied to each other for the purposes of carrying out the research in the strictest confidence and to use it exclusively for the purposes of executing the project. Employees shall be placed under the same obligation. This obligation also extends to the time after completion of the project. It does not extend to such information that the other party can show to have been already known before it was received, or that was available to the general public before being received, or that was available to the general public after being received, without the receiving party having been 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 ipi agrees to their being passed on to third parties or published, in full or in part, or unless ipi releases them for publication due to the nature of the matter or due to copyright issues or property rights (see Section 6). 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 ipi. These provisions shall also apply to the research reports and the research results resulting from syndicated studies. The Client shall not hold a sole right of utilization in these. These provisions shall not apply to merely nonessential parts of the research reports or research results.
7.2 Publications in which comparisons with competitors are made are only permitted with the express permission of ipi, which must first authorize the text in question to be published.
7.3 The use of research results and research reports 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 ipi – save when legal/administrative regulations or court rulings have precedence.
7.4 If the Client wishes to cite the research report, in part or in whole, these citations must be recognizable as such and ipi must be named as being the author of the research report.
7.5 The Client shall indemnify ipi against all claims made against ipi 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. Warranty and Liability
8.1 ipi's liability and the Client’s claims arising from defects are governed by the statutory provisions unless otherwise stated below. ipi guarantees that the survey is carried out correctly and the results are analyzed scientifically. Warranty claims for obvious defects shall only be permissible if the Client notifies ipi 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.
8.2 ipi does not guarantee that the data collected, processed and analyzed by it in accordance with the rules and methods of product and market research will be able to be used by the Client in a specific commercial manner.
8.3 ipi shall not be liable for damage incurred through or in connection with the Client’s interpretation of the data/results supplied, unless ipi is in breach of duty according to Section 8.4.
8.4 The Client shall only be entitled to make claims against ipi 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 ipi, its legal representatives or its vicarious agents, or in cases of fraudulent concealment of a defect in the survey.
8.5 In the case of damage caused through the negligent breach of key contractual duties, ipi shall only be liable for foreseeable, typical damage. 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.
8.6 Should the Client face claims for damage on account of alleged breach of duty by ipi, and should the Client intend to seek recourse against ipi, ipi must be informed at the earliest possible time. ipi is entitled to conduct or be in charge of the lawsuit. This right of ipi shall not affect the Client’s right of defense.
8.7 If the Client culpably violates one of the obligations defined in the General Terms of Business, ipi is entitled to receive a penalty payment that is in the total amount of the order as invoiced by five (5) times.
9. Delay of Performance
9.1 Any deadline set by the Client for delivery of the expert opinion shall only be deemed agreed if expressly confirmed by ipi.
9.2 Should the Client delay in providing the information necessary for carrying out the survey or providing the necessary documents, ipi 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 ipi has granted an appropriate extension, ipi is entitled to terminate the contract for serious reasons and to claim damages.
9.3 If delivery is postponed, ipi shall only be liable in cases of default. The Client can only pursue liability, warranty, and damage claims according to Section 8.
9.4 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 ipi'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. ipi shall inform the Client of the beginning and end of such disruptions as early as possible. In the case of long-term stoppages caused by acts of God or stoppages beyond ipi's control, ipi shall be entitled to terminate the contract for serious reasons, with the exclusion of all claims for compensation.
10. Product Tests
10.1 The Client shall indemnify ipi against all claims made against ipi or its employees as a result of damage caused by any defect in the product to be tested.
10.2 ipi can only be held liable for damage caused to the property of the Client – regardless of the legal reason – if ipi or its employees caused the damage as a result of improperly executing the order through willful intent or gross negligence. Any claims for damage beyond the aforementioned shall be excluded.
10.3 The Client shall be responsible for ensuring that all safety and certification tests required to "market" the product, such as chemical, medical, pharmaceutical or other tests, studies, and 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 law or ordinances and/or is necessary for the use of the product is made available to ipi before testing begins so that the latter may pass it on to the persons participating in the test.
10.4 In all other respects, the regulations of the product liability laws shall apply.
11. Final Clause
11.1 The place of performance and venue shall be Stuttgart - ipi's place of business.
11.2 Unless specifically agreed otherwise in writing, the contractual relationship between ipi and the Client shall be governed by the laws of the Federal Republic of Germany.
11.3 Written notice or consent in the sense of these General Terms and Conditions is also taken to include telefax and e-mail transmissions.
Stuttgart, October 2014
Managing Director ipi Institute