General terms and conditions (AGB / GTC)
1. Definition, scope
1.1. The following terms and conditions apply to all market research and consulting services of SCHÖTTMER-INSTITUT GmbH, including all associated areas (the SCHÖTTMER-RESEARCH HUB and the SCHÖTTMER-COMMUNITY).
1.2. All services provided are carried out in accordance with the recognised rules of the market and social research profession, the Berufsverband Deutscher Markt- und Sozialforscher e.V. (BVM), the European Society for Opinion and Market Research (ESOMAR) and the EU Data Protection Regulation (EU-DSGVO).
1.3. The activities summarised above as "market research and consulting services" include, among others, the preparation of offers, study organisation and logistics, room rentals, commissioning of vicarious agents, recruitment of study participants, project coordination, implementation up to evaluation, analysis and presentation, and consulting with regard to study results and possible options for action.
1.4. "Contract" means the contract between the parties, irrespective of its actual legal classification. "Client" is the customer as the purchaser of the main service. SCHÖTTMER-INSTITUT GmbH is hereinafter referred to as the "Contractor" and is the debtor of the main service.
1.5. The following "General Terms and Conditions" (GTC) shall apply to all contracts concluded between the Contractor and the Client and their future transactions, even if these GTC are no longer expressly agreed. By placing an order, the client agrees to the contractor's terms and conditions.
1.6. Deviating, conflicting or supplementary GTC of the Client shall only become part of the contract if and to the extent that the Contractor has expressly consented to their validity. This reservation of consent shall also apply if the Contractor executes the order without reservation in the knowledge of the Client's GTC.
1.7. Insofar as other contractual provisions in the offer, in the order confirmation or in signed delivery contracts contradict these GTC, the other contractual provisions shall take precedence. In all other respects, the various provisions shall apply side by side.
2. Offer & Conclusion of Contract
2.1. The Institute shall submit an offer to the interested party in principle in the form of an investigation proposal stating the services to be provided, the time required and the fee to be paid. Its content may not be published in whole or in part or passed on to third parties or used by the Institute itself. The offer is valid for three months from the date of the offer. The offer may be amended or withdrawn by the contractor at any time until it is accepted by the client.
2.2. The contract shall be concluded by written acceptance of the offer by the Client or by written confirmation of the order by the Contractor. Changes to the order after conclusion of the contract require written confirmation by the contractor.
2.3. Insofar as the Client pursues an objective with the order which is not obvious to the Contractor, the Client shall point this out to the Contractor prior to the conclusion of the contract. The client must then disclose his objective in writing.
2.4. The Contractor cannot grant exclusivity for certain product fields, objects of investigation or investigation methods unless it is expressly agreed. Insofar as exclusivity is agreed, its duration and any additional fee to be charged shall be specified.
3. Execution of the order / Duties of the contractor
3.1. The Contractor shall carry out the assignments in accordance with the standards set by the Contractor, with due and necessary care, and according to scientific methods of market and social research.
3.2. The Contractor does not owe the delivery of specific types of questionnaires, analyses, research results or forms of evaluation.
3.3. The Contractor is entitled to have services performed by subcontractors (vicarious agents). The prior consent of the Client is not required for this. The identity of these subcontractors shall be disclosed to the Client at the Client's request. The Contractor warrants that when subcontracting, the necessary confidentiality will be maintained and the rules and methods of market and social research as well as other legal requirements, such as data protection, will be complied with. If the Client requests a specific subcontractor, the Contractor shall not be liable for the correctness, completeness or quality of its work.
3.4. Agreed performance periods shall commence at the earliest upon receipt of the order confirmation by the contractor, but not before the client or third parties have created the agreed or necessary framework conditions for the performance of the order and also not before clarification of all details of the performance of the order between the contractor and the client. Moreover, agreed performance deadlines shall commence no earlier than 5 working days after receipt of any advance payment due. Fixed performance deadlines shall be postponed accordingly.
3.5. Change requests of the Client accepted by the Contractor shall extend the agreed performance period appropriately, if necessary. In this case, too, firmly agreed performance dates shall be postponed accordingly.
3.6. In the event of a delay in delivery, the Contractor's liability for damages shall be governed exclusively by section 15 of these GTC.
4. Duties to cooperate / Duties of the client
4.1. The Client shall be obliged to cooperate in the execution of the order and shall provide the Contractor with the required documents and information in an accurate, timely and complete manner. When placing the order, the internal order or project number required for the billing process, if any, shall be transmitted to the Contractor without being requested and without delay.
4.2. Methods, models, techniques, software, questionnaires and guidelines, study designs and participant lists created or developed by the contractor or its agents will be treated confidentially by the client. The intellectual property of the contractor shall be protected and preserved.
4.3. The client undertakes in particular towards study participants to protect and safeguard their anonymity and personal rights. This applies in particular to images of persons and private environments.
4.4. The Client shall be responsible for deciding whether and in what way to act on the basis of the Contractor's services. The contractor does not assume any guarantee for the achievement of certain customer goals or customer wishes or specifications set by the customer - whether they are expressly or tacitly expected by the customer.
4.5. If, after being requested to do so by the contractor, the client does not fulfil the duty to cooperate incumbent upon him or only insufficiently for the purpose of the investigation, the contractor shall be entitled, but not obliged, to terminate the concluded contract without notice after prior written notice. In this case, the Contractor may invoice the Client either for the services actually rendered up to the time of termination or, instead, for the agreed or forecast total remuneration less any expenses saved as a result of the premature termination of the contract.
5. Fee
5.1. The prices shown are net prices. Any statutory value added tax and other fees owed shall be borne by the client.
5.2. The agreed fees serve to finance the implementation of the respective projects. For this reason, half of the agreed fee plus the statutory value-added tax shall be due upon award of the contract and after performance of the service owed. Insofar as the approach to the study or the amount of the order make it appear appropriate, a deviating arrangement can be made.
5.3. By placing the order, a payment term of 14 calendar days after receipt of the invoice shall be deemed agreed. The agreed fee is due without any deduction. The invoice can also be effectively received by sending it to the client by e-mail or fax.
5.4. Invoices shall be settled in the currency stated in the offer - as a rule in EURO. Transfer fees for foreign currencies and other transfer fees incurred shall be borne exclusively by the client.
5.5. In the case of projects in which services are rendered outside the euro zone, fee adjustments may also occur during the course of the project: In the event of exchange rate fluctuations of +/- 5% or more between the time of receipt of the quotation and the award of the contract, the costs shall be revised accordingly.
5.6. If the client does not pay a received invoice within the agreed payment terms, default shall occur without prior reminder. The Principal shall also be in default if he receives a reminder after the fee has become due. If the Principal is in arrears with a payment, he shall owe the Company interest on arrears at the rate of 9 percentage points above the base rate per annum, but at least 10% per annum. The Company reserves the right to claim higher damages for default and the right to refuse further performance of the service or to withhold services in the event of default in payment.
5.7. The fee stated in the study proposal basically includes all services described by the contractor in connection with the execution of the assignment in the study proposal. For additional services requested by the client, the contractor may charge an additional fee. Changes to the order volume after conclusion of the contract require an express agreement between the parties.
5.8. Additional costs for which the Contractor is not responsible and which were not foreseeable at the time the order was placed despite due diligence may be invoiced separately by the Contractor if they are linked to an objectively justified reason and are clearly recognisable and sufficiently determined for the Client. This shall also apply if the Client is not responsible for these costs. Insofar as additional costs are foreseeable, they may only be invoiced after the client's consent.
5.9. If the Client terminates the contract prematurely or postpones already agreed dates without the Contractor being responsible for this, the Client shall remunerate the Contractor in accordance with the table below. The percentages refer to the agreed remuneration and include all services directly incurred by the contractor, including all other costs incurred (i.e. also travel costs and supervision), as well as costs for booking technical equipment. Upon agreement and availability of the contractor, the field phase can be postponed by up to 4 weeks. In this case, the remuneration is to be paid according to the table under "Postponement". If a binding new date is not fixed at the same time as the contract is terminated, the remuneration shall be paid in accordance with the table under "Cancellation". Should the actual costs incurred due to cancellation / postponement be even higher, correspondingly higher cancellation costs shall be demanded from the client.
Time Cancellation Postponement
0 - 3 working days before the start of fieldwork 90% 80%
4 - 5 working days before the start of fieldwork 75% 50%
6 - 7 working days before the start of fieldwork 50% 25%
from the 3rd working day after placing the order 25% 10%
5.10. The Client waives the right to assert reservations of payment.
5.11. The Client may only offset against the Contractor's claim with undisputed or legally established claims. The Principal cannot and may not assign or transfer any claims against the Company to third parties. The provision of § 354 a HGB remains unaffected. The same applies to the exercise of a right of retention.
5.12. The Contractor reserves the right to demand up to 100% of the agreed fee from the Client immediately if a significant deterioration in the Client's assets occurs which jeopardises the Contractor's claims.
6. Termination and withdrawal by the contractor
6.1. The Contractor shall be entitled to terminate an order without notice at any time for good cause. Good cause shall be deemed to exist in particular if an advance payment agreed in the order is not received on time or in full, necessary budget extensions are not released or insolvency proceedings are opened or threatened against the Client's assets. In all other respects, § 648a BGB shall apply.
6.2. If it turns out after the order has been placed that the service offered cannot be carried out for reasons which neither the Client nor the Contractor could foresee and for which they are responsible, the Contractor shall inform the Client without delay. If both contracting parties fail to find a methodical solution to the problem, the contractor shall be entitled to return the order due to impracticability. In this case, any consideration already paid by the Client shall be reimbursed by the Contractor without delay.
7. Use of the investigation report & the investigation results
7.1. If the client wishes to quote from the research report in whole or in part, he must identify the quotes as such and name the contractor as the author of the research report. The client shall not publish the results of the contractor in a way that exaggerates, distorts or misrepresents findings or data. The publication must not harm the reputation or the business of the contractor.
7.2. The Client shall indemnify the Institute against all claims asserted against the Contractor because the Client has intentionally or negligently used the duly obtained results in an unlawful manner (e.g. unlawfully and / or falsely advertises with them).
7.3. The use of investigation results and investigation reports in the run-up to legal proceedings (e.g. court proceedings, arbitration proceedings, official proceedings) is prohibited without the prior written consent of the Institute - subject to overriding statutory / administrative provisions or court decisions.
8. Copyright, Intellectual Property
8.1. All offers, methods, models, techniques, software as well as guidelines, study designs, graphical and tabular representations originating from the Institute, know-how embodied in other services of the Institute and lists of participants created or developed by the Contractor or its agents shall remain the intellectual property of the Contractor.
8.2. All intellectual property rights to procedures, principles and formats as well as to all proprietary materials, software, programmes, modules, methods and other materials used or created by the Contractor in the context of the preparation of the offer or the performance of the service shall remain with the Contractor, unless they were created exclusively for the Client.
8.3. The Client's copyright to documents which it has prepared shall remain unaffected.
8.4. If the Contractor provides software or uses images as part of the Services, the Client acknowledges that the use of such software or images may be subject to separate licence conditions.
9. Products, documents and materials provided by the Client
9.1. The contractor shall return to the client the products, documents and other items of the client (together "material") made available for the execution of the order after the execution of the order. As long as the client has not paid the agreed fee, the contractor shall have a right of retention to the client's material.
9.2. The Client is aware that the Contractor passes on the Client's items, in particular the products provided, to the test persons in accordance with their intended use. The risk of loss, refusal to surrender or damage to these items of the Client shall be borne by the Client.
9.3. The Principal shall be obliged to immediately check items returned to him by the Principal for completeness and condition and to immediately assert any complaints against the Company. In this respect, the provision of § 377 HGB shall apply accordingly.
9.4. The contractor does not have to insure the documents and material provided by the client for the execution of the order.
10. Confidentiality regarding business secrets
10.1. The Contractor and the Client undertake to preserve all business secrets of the other contracting party that come to their mutual knowledge in the course of the cooperation and to treat all relevant information and documents confidentially and to use them only for the execution of the order.
10.2. Employees and vicarious agents shall be bound accordingly.
10.3. This obligation shall also apply for the time after the completion of the execution of the order.
10.4. It does not exist for such information for which the other party proves that it was known before receipt or that it was known to the public before receipt or that it became available to the public after receipt without the receiving party being responsible for it.
11. Data protection
11.1. Both contracting parties shall comply with all relevant data protection provisions, in particular the General Data Protection Regulation (DSGVO).
11.2. In the course of providing the service, it may be necessary for the Contractor to process personal data provided by the Client or its vicarious agents or third parties known to it. In this case, the Client shall ensure that it is entitled to provide the personal data in accordance with the statutory provisions and, if necessary, has obtained the consent of the persons concerned.
11.3. The Contractor shall process the personal data provided by the Client exclusively in compliance with the provisions of data protection law, in particular the BDSG and the DSGVO, exclusively for the purpose of providing the contractually owed service.
11.4. In order to protect the personal data against unauthorised or unlawful processing, accidental loss, destruction or damage of the data, the Contractor shall take the necessary technical and organisational security measures, taking into account the state of technical development.
11.5. Completed questionnaires, audio and video recordings as well as computer recordings made by the contractor or its subcontractor in connection with the contractually owed service are the property of the contractor.
11.6. As soon as the personal data is no longer required for the purpose of providing the service, it shall be deleted by the Contractor in accordance with the applicable statutory provisions.
12. Retention requirements
12.1. The Company shall not be obliged vis-à-vis the Principal to retain documents relating to the execution of the order - irrespective of whether in physical or electronic form - unless expressly agreed otherwise.
12.2. The Company is entitled but not obliged to make backup copies of video and/or audio recordings. These backup copies shall be made exclusively as a replacement in the event of data loss and shall only be used in that case. The Company shall destroy the back-up copies irretrievably as soon as the execution of the order has been completed and paid for in full. In individual cases, the Company may also destroy them at a later date. The Company accepts no responsibility for the fact that a loss of data may no longer be compensated if no backup copies have been made or if they have been destroyed.
12.3. The Institute undertakes to retain reports prepared by itself for a period of one year after delivery, unless expressly agreed otherwise.
13. Obstacles in the execution of the order
13.1. The client is aware that the execution of the order - both in terms of time and quality - may depend on certain assumptions, circumstances, documents or products provided by the client, other cooperation by the client or a certain environment.
13.2. Force majeure (e.g. lawful strikes or lock-outs, disruption of operations through no fault of the Company, shortage of labour, energy or raw materials through no fault of the Company, action by public authorities through no fault of the Company) or actions or conduct of third parties for which the Company is not responsible and which cannot be planned (e.g. obstruction of testing measures or blocking of the Project) or conduct for which the Company is responsible (e.g. lack of or untimely cooperation or missing or incorrect information in documents or materials provided or failure of power supply or other supply facilities (together "Obstacles") may delay or delay the performance of the Project.(e.g. lack of or untimely cooperation or missing or incorrect information in documents or materials provided) or failure of the power supply or other supply facilities (together "Obstacles"), may impair the timeliness or quality of the execution of the order or make the execution of the order impossible.
13.3. The client may not refuse payment of the client's fee, either in whole or in part, insofar as the quality of the execution of the order is impaired due to the above-mentioned obstacles or the execution of the order or its result does not correspond to the wishes of the client. Any additional costs and delays caused by the above-mentioned obstacles shall be accepted by the client if the order remains fundamentally feasible as a result despite the obstacles. In the event of considerable additional costs or considerable delays due to obstacles, the contracting parties shall come to an agreement or both contracting parties may terminate the contract. The pro rata fee owed shall remain unaffected by the termination.
14. Liability & Warranty of the Contractor
14.1. Warranty and liability of the Contractor as well as claims for defects of the Client shall be governed by the statutory provisions, unless otherwise stipulated.
14.2. The contractor guarantees the proper execution of the order. In the case of obvious defects, warranty claims shall only exist if the Client notifies the Contractor in writing two weeks after receipt of the inspection report and the inspection results. If a defect is not obvious, the notification must be made immediately after discovery. The warranty period shall commence upon receipt of the service or the examination report and the examination results and shall be one year.
14.3. The Contractor does not guarantee that the data collected, evaluated and analysed by it in accordance with the rules and methods of market and social research can be commercially exploited in a certain way by the Client.
14.4. The Contractor shall not be liable for any damage arising from or in connection with the Client's interpretation of the data / results supplied.
14.5. Claims for damages by the Client against the Contractor or its legal representatives or vicarious agents shall only exist in the event of culpable injury to life, limb or health, a material contractual obligation or in the event of an intentional or grossly negligent breach of duty by the Contractor, its legal representatives or vicarious agents or in the event of fraudulent concealment of a defect in the examination.
14.6. In the event of damage caused by negligent breach of material contractual obligations, the Contractor shall only be liable for foreseeable damage typical of the contract. The amount of damages shall be limited to the total amount of the agreed net remuneration of the respective individual order. The contractor shall be permitted to prove that no damage or a reduction in value has occurred at all or that it is significantly lower than the net remuneration. Compensation for indirect damage and unforeseeable consequential damage is excluded.
14.7. If a claim is made against the Client due to alleged breaches of duty by the Contractor and the Client wishes to take recourse against the Contractor, the Contractor must be informed as soon as possible. The contractor is entitled to conduct or supervise the legal dispute. The costs arising from this are to be reimbursed by the client. The right of the Contractor shall not affect the Client's rights of defence.
15. Delay
15.1. If the Client is in default with the provision of the information necessary for the performance of the investigation or with the provision of the documents required for this purpose, the Contractor shall not be obliged to comply with agreed delivery and performance deadlines. If the client does not fulfil his obligations to cooperate despite the setting of a reasonable grace period by the contractor, the contractor is entitled to terminate the contractual relationship for good cause and to claim damages.
15.2. The Contractor shall only be liable for delayed delivery in the event of default for which it is responsible. The Client may only assert claims for damages in accordance with No. 14.
15.3. The Contractor shall not be liable for the consequences of late delivery or loss of or damage to test material, insofar as the delay or loss or damage is due to circumstances,
15.3.I. which lie outside the Contractor's operational area, in particular in the area of the Client or of courier services and have not been culpably caused by the Contractor, in the event of natural disasters or other cases of force majeure, in the event of sovereign intervention and in the event of industrial disputes or
15.3.II. which are within the contractor's operational sphere but for which the contractor is not responsible, in particular in the event of impairments of the operational sequence due to force majeure, due to sovereign intervention or due to industrial disputes.
15.4. In the event of liability claims due to negligent damage to test samples, the Institute's liability shall be limited to the amount of a maximum of 2,000 euros should a liability case arise on the part of the Institute (see above).
16. Product tests
16.1. The Contractor's contractually owed performance may also include the testing or use of products, samples or test materials, including prototypes, provided by the Client (hereinafter: test products).
16.2. In this case, the Client undertakes to ensure that all contents, packaging and labelling comply with the applicable laws.
16.3. The client is also obliged, if necessary, to obtain prescribed declarations from the persons concerned for the use of the test products in question.
16.4. The client also bears the following responsibility:
- All necessary chemical, medical, pharmaceutical and other required tests, examinations and analyses of the test product have been carried out;
- The test product is suitable for the test;
- The test product does not cause any damage after testing;
- All information required by law or regulation or necessary for product use (such as ingredient lists) will be provided to the contractor so that it can be passed on to the test participant;
- All test products comply with the legally prescribed safety and hygiene regulations.
- In the case of test products to be cooled, the cold chain shall be maintained until the agreed place and time of handover to the contractor.
16.5. The client shall be liable for all damages incurred by the contractor or third parties from the use of the products provided by the client. The client shall indemnify the contractor against all claims asserted against the contractor due to damage caused by the product to be tested.
16.6. In all other respects, the provisions of the Product Liability Act shall apply.
16.7. The Client shall maintain sufficient liability insurance and, upon request by the Contractor, submit proof of sufficient insurance coverage.
16.8. The contractor accepts no liability for the use, loss or damage of the test products after they have been handed over to the respondents.
17. Compliance with laws, minimum wage, right to terminate without notice in case of violations
17.1. Both contracting parties are obliged to comply with all obligations and laws under public law.
17.2. In particular, both contracting parties are obliged to comply with all current and future statutory and other regulations on minimum wages, in particular the provisions of the Minimum Wage Act (MiLoG), and to ensure that the subcontractors commissioned also comply with these statutory provisions.
17.3. Both contracting parties are entitled to terminate the contract without notice if the other contracting party commits a serious breach of contract or violates public law obligations in the aforementioned sense or if there is reasonable suspicion in this respect.
18. References to third parties
The parties mutually consent that they and their affiliated companies may list the company or brand name of the respective other party, its company logo and the project theme or type as a reference vis-à-vis third parties. This consent may be revoked in writing by one of the parties to the other at any time.
19. Final provisions
19.1. If the contracting parties are merchants, the place of performance and jurisdiction shall be the registered office of the Contractor, i.e. Hamburg. However, the Contractor is also entitled to sue the Client at another court having jurisdiction in accordance with the provisions of the German Code of Civil Procedure.
19.2. The contractual relationship between the Contractor and the Client shall be governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) and international private law (IPR) shall not apply.
19.3. Should any provision of these GTC be or become invalid, unenforceable or incomplete, this shall not affect the validity of the remaining provisions. In place of the invalid, impracticable or missing provision, the provision shall be deemed to be agreed which the contracting parties would have reasonably agreed if they had been aware of the invalidity, impracticability or incompleteness.
These GTC exist in both German and English language versions. The English language version is executed by automated translation for translation purposes only. Only the German language version is authoritative.
Hamburg, February 2023