§1 The EARSandEYES GmbH performs its activities as a consultant in compliance with the recognised professional principles applicable to market and social researchers.
§2 The EARSandEYES GmbH generally provides an interested party with an offer in the form of a research proposal setting out the conceptual formulation, the services to be performed in order to realise such concept, the amount of time needed for research as well as the remuneration to be paid. The interested party receives the research proposal solely for purposes of making a decision as to whether to commission the proposed research. To the extent not otherwise agreed, its contents may not be published in whole or in part or provided to third parties without mutual consent. To the extent the client is pursuing a goal that is not apparent to EARSandEYES GmbH, it must make this known. The client must then disclose its goal in writing.
§3 The remuneration stated in the research proposal generally includes all services offered by the EARSandEYES GmbH in connection with the commission contained in the research proposal. EARSandEYES GmbH may request additional remuneration for additional services desired by the client. Additional costs for which EARSandEYES GmbH is not responsible and additional costs that were not foreseeable by EARSandEYES GmbH upon commission of the project despite the exercise of due care may be invoiced by EARSandEYES GmbH separately if they are based on an objectively justified reason and are clearly recognisable by the client and sufficiently definite. The foregoing applies in like manner in the event the client is not responsible for such costs. Changes in the scope of a commission following the conclusion of the contract require a written agreement between the parties.
§4 EARSandEYES GmbH cannot guarantee the exclusivity of certain product segments, research subjects or research methods to the extent otherwise not expressly agreed. Duration and additional remuneration, as applicable, must be established in the event exclusivity is agreed upon.
§5 The client receives research reports solely for its own use. To the extent not otherwise agreed, their contents may not be published in whole or in part or provided to third parties without mutual consent. For such purposes, the research reports may also not be duplicated, printed or saved, processed or disseminated in information and documentation systems of any form. The foregoing provisions do not apply to the results of the research (cf. §6). In the event the client wants to quote the research report in whole or in part it must make such quotes identifiable as such and indicate EARSandEYES GmbH as the author of the research report.
§6 To the extent not otherwise agreed in writing, the research results stand solely to the respective client\’s unrestricted disposition. The client shall indemnify and hold EARSandEYES GmbH harmless as to all claims asserted against EARSandEYES GmbH because the client deliberately or negligently uses legally obtained results in an unlawful manner (for example solicits with them unlawfully and/or deceptively).
§7 All rights to which EARSandEYES GmbH is entitled under the German Copyright Act (Urheberrechtsgesetz) remain with EARSandEYES GmbH. To the extent not otherwise agreed, all material, data storage media of any form, questionnaires, additional written records, etc., created in connection with the performance of the project, as well as data created itself, are the property of EARSandEYES GmbH. The anonymity of persons questioned or of the testers, may not be endangered by such an agreement. The client\’s copyright to documents created by it remains unaffected.
§8 The client\’s participation in the research, as well as a review of the performance and results of the research on the part of the client required separate agreements. In doing so, EARSandEYES GmbH is obliged to guarantee the anonymity of the persons questioned or test persons. The client must bear any additional costs incurred as a result.
§9 To the extent not otherwise expressly agreed, EARSandEYES GmbH undertakes to retain survey documents for a period of one year and data storage media for a period of two years following delivery of the research report.
§10 EARSandEYES GmbH is obliged to treat all information provided by the client as strictly confidential and to exclusively use such information for purposes of carrying out the project.
§11 In the case of untimely delivery based on intent or gross negligence on the part of EARSandEYES GmbH, if the client desires to assert rights from the claim that partial performance rendered is no longer of interest to it, it must credibly substantiate such lack of interest. To the extent the client is a merchant within the meaning of the German Commercial Code (“HGB”), the client shall not be compensated for unforeseeable, non-typical damages and damages attributable to the client\’s sphere of responsibility or risk in cases of delay or improper performance.
§12 EARSandEYES GmbH shall not be liable in cases of slight negligence. The foregoing likewise applies in the event that such conduct also represents an unlawful act. This exclusion of liability does not apply to material contractual obligations on the observance of which the client may accordingly rely.
§13 In the event the research report / research results are not delivered in a timely manner or if test material is damaged or lost and EARSandEYES GmbH is responsible therefor, the client may grant EARSandEYES GmbH a reasonable period to effect cure. Otherwise, applicable provisions of law apply.
§14 EARSandEYES GmbH is not liable for the consequences of late delivery and/or the loss or damage of test material, as the case may be, to the extent the delay and/or loss or damage, as the case may be, is due to circumstances outside of EARSandEYES GmbH’s field of operations, in particular within that of the client, and for the creation of which EARSandEYES GmbH is not responsible, in the case of natural catastrophes or other acts of God, in cases of sovereign intervention and labour unrest; or although within EARSandEYES GmbH\’s field of operations for which it is not responsible, in particular in the case of impairment to business processes due to acts of God, sovereign intervention or labour unrest.
§15 The following terms apply to product tests:
The client shall indemnify and hold EARSandEYES GmbH harmless from all claims asserted against EARSandEYES GmbH and against the employees of EARSandEYES GmbH which result from damages due to a defect in the product tested. The client is responsible for ensuring performance of all required chemical, medical, pharmaceutical or other tests / research / analyses of the test product. The client is responsible for ensuring that the product is appropriate for the test and to the extent a review (see above) was necessary and was performed, that there were no indications that the product could cause any form of harm. The client is responsible for ensuring that all information required by law or regulation and/or required for the use of the project is provided to EARSandEYES GmbH so that such information can be provided to the test participants. Otherwise, the provisions of the German Product Liability Act (Produkthaftungsgesetz) apply.
§16 The agreed fees are intended to finance the investigation in question. Therefore in each case half of the agreed fee plus statutory VAT is due on issue of order, and half upon delivery of the results. If the investigatory approach or amount of order indicate that it is appropriate, a different regulation may be made.
§17 In the event the parties are merchants, the place of performance and jurisdiction is the registered office of EARSandEYES GmbH.
§18 In the event individual provisions are or become ineffective, the validity of the remaining provisions shall not be affected. Ineffective provisions are to be replaced by effective provisions that come economically as close as possible to the provision in question.
§19 These General Terms and Conditions do not apply to cooperation with private market and social research institutions for purposes of performing commissions.