INITIAL CONCEPT General Terms and Conditions
INITIAL CONCEPT (the Contractor)
"Acceptance" means the acceptance in writing by a Customer of an Offer made by the Contractor in relation to the Service.
"Customer" means the party to whom the Contractor is providing the Service, as stated in the Offer.
"Confidential Information" means all information or data relating to the service, of any kind or in any form, that is disclosed by one party to the other as a result of this Agreement, including the Offer and anything else issued by the recipient party that is derived from or based on the information and data disclosed to it by the disclosing party.
This does not include information or data: (a) that is or becomes available in the public domain for reasons other than a disclosure made by the recipient party, or by a third party to whom the recipient party has disclosed this information; (b) that was already lawfully in the possession of the recipient party prior to the disclosure by the disclosing party; (c) that is obtained by the recipient party at a later date from a third party, provided that third party is entitled to disclose this information to the recipient party; or (d) that must be disclosed due to a legal provision or at the behest of a regulatory authority.
"Agreement" means these General Terms and Conditions in combination with the Offer, which together constitute the full agreement between the parties. In the case of any discrepancy, these General Terms and Conditions shall prevail over the terms of the Offer, unless the parties agree in writing that specific provisions in the Offer shall prevail over the provisions of these General Terms and Conditions.
"Single Client" means the studies specifically tailored to the Customer that are carried out by the Contractor on a case-by-case basis.
"Deliverables" mean research results, reports, data, summaries, commentaries, discussions, and/or analyses that are delivered by the Contractor to the Customer under the Agreement.
"Fee" means the fee(s) charged by the Contractor for the provision of the Services to the Customer, as stated in the Offer.
"Intellectual Property Rights" mean copyright, database rights, trademarks, trade or business names, service marks, registered and non-registered designs, patents and/or expertise (including working methods), rights to confidential information, and all other intellectual property rights, wherever in the world they are applicable, and irrespective of whether these intellectual property rights have been registered.
"Multi-Client" means services delivered by the Contractor to one or more Customers that do not relate to a Single Client (or are not customized), and continuous market research, including all outsourced services.
"Offer" means the definitive offer made in writing and/or the definitive quotation made in writing by the Contractor to the Customer (exclusive of VAT or any other local sales taxes or other applicable taxes, including withholding tax unless stated otherwise, which in any case shall be charged to the Customer at the rate applicable at the time in the relevant currency).
"Service" means the Single Client and/or Multi-Client Service as described in the Offer or in another document that has been agreed by both parties.
"Tax" means all kinds of taxes, levies, duties, deductions, rebates, fees, and government levies (both national and local) of any fiscal nature that are imposed, fixed or levied at any time by a governmental, national, federal, local, municipal or other body, including any related (financial) penalties, interest, levies, and charges.
In these General Terms and Conditions, references to the singular shall be deemed to include references to the plural and vice versa (unless the context requires an alternative interpretation).
1. The Agreement
1.1. The Customer contracts the Contractor, and the Contractor agrees, to supply the Services and Deliverables in accordance with these General Terms and Conditions, which may only be amended with the written agreement of both parties.
1.2. The Customer is deemed to have accepted the Offer: (i) when it indicates to the Contractor in writing (including via email) that it has accepted the Offer; or (ii) when it indicates to the Contractor in writing (including via email) that it wishes the Contractor to begin providing the Service (including, without limitation, the submission of a purchase order in relation to the Service or to any part thereof).
1.3. If the Customer does not accept the Offer within two (2) calendar months, the Offer shall expire (including the Fee stated in the Offer by the Contractor), unless an authorized representative of the Contractor agrees in advance in writing to an extension of the term of the Offer. The Contractor reserves the right to amend or withdraw the Offer at any time (including the Fee stated in the Offer by the Contractor), provided that the Offer has not yet been formally accepted by the Customer.
1.4. Unless agreed otherwise in writing, this Agreement shall apply to all Services and Deliverables that are supplied by the Contractor to the Customer.
2. Payment of Fees
2.1. Unless agreed otherwise in writing, half of the Fees shall be paid on the Acceptance Date, and the remaining balance shall be paid on delivery of the Deliverables. In cases where a Service is delivered in stages, with interim Deliverables, a final invoice shall be issued for each stage on delivery of the interim Deliverables in question.
2.2. All invoices are payable from the invoice date onward and must be paid within 30 days. Any payments made after this 30-day deadline shall give the Contractor the right to charge interest at the statutory commercial rate from the date of the invoice until the date on which the Contractor receives the full payment. The Customer is required to pay this interest immediately on request.
2.3. The Contractor has the right to recover all costs incurred during the provision of the Services, provided that these costs are eligible to be recovered and are not already included in the Fees.
2.4. If the Fee is based on information provided by the Customer that subsequently proves to be incomplete or incorrect, the Contractor shall have the right to increase the Fee to reflect any additional time required to provide the Services (or additional services), as well as to reflect any additional costs necessarily incurred by the Contractor.
2.5. In relation to Services delivered wholly or partly outside the Netherlands, in the event that the equivalent cost to the Contractor in euros of obligations relating to work undertaken abroad on behalf of the Customer is higher than the costs set out in the Offer due to fluctuations in the exchange rate, the Contractor shall have the right to charge for these obligations at the applicable exchange rate at the time when the payment from abroad is made. Where the prices quoted in the Offer are in a currency other than the euro, the exchange rate in euros for the applicable currency on the Acceptance Date in the Netherlands will be set at the daily exchange rate of ABN AMRO Bank for the purchase of the relevant currency.
2.6. In the event that Tax is levied on an amount of money owed to the Contractor (or its authorized representative) under this Agreement, the amount owed to the Contractor shall be increased in such a way that the net amount received by the Company (or its authorized representative) after Tax shall be equivalent to the amount that would have been received if no Tax had been levied on the payment, or any increased payment.
3.1. The Agreement shall cease to be valid once the assignment is completed, or once the term of the agreement as defined in the Offer has expired. Either of the parties may terminate the Agreement at any time and without an explicit reason by notifying the other party in writing with due observance of a notice period of thirty (30) days.
3.2. Either of the parties may terminate this Agreement with immediate effect (a) due to a material breach of contract by the other party that cannot be rectified or, if it can be rectified, is not rectified within 30 days of a demand being submitted to the breaching party; or (b) if the other party goes bankrupt, or is liquidated (whether voluntarily or otherwise), or is wound up, or if a receiver or liquidator is appointed for all or part of its assets, or if a request is submitted or a meeting is called to make a decision about the other party being liquidated, wound up or declared bankrupt, or if the other party undergoes an analogous procedure under the law applicable to its registered office or legal jurisdiction.
3.3. For Multi-Client Services, if (a) the number of participants in the Multi-Client Services falls below a level that is acceptable to the Contractor or (b) the Contractor is unable or deems it unfeasible to continue the Service or any part of it, the Contractor shall be entitled to terminate this Agreement at any time, with due observance of a notice period of 1 month. The Contractor shall make reasonable efforts to complete all Deliverables that are currently in progress, and the Contractor reserves the right to receive payment for completing these Deliverables.
4. Amendment, Delay, or Withdrawal
4.1. If the Customer requests an amendment to the Service (including amendments to data and times), the Contractor reserves the right to amend the Offer (including, without limitation, a corresponding adjustment to the Fee).
4.2. In the event that a Service is curtailed, delayed, withdrawn or prematurely terminated by the Customer, the final invoice shall include the balance of Fees for the provision of the Service, as well as all costs and expenses reasonably incurred by the Contractor as a result of any actions or omissions on the part of the Customer, together with all third-party costs for which the Contractor is irretrievably contractually liable and which the Contractor is required to pay. For example, the Customer is liable for costs and expenses incurred by the Contractor relating to any fieldwork undertaken in advance of the booking that was subject to delay, was not used or was not fully utilized due to any actions or omissions on the part of the Customer. A cancellation fee of at least 25 percent of the difference between the aforementioned total invoice amount and the full project price shall also be charged.
4.3. The Customer is responsible for ensuring the timely delivery to the Contractor of all data that the Contractor reasonably needs in order to supply the Services and the Deliverables. If the Customer fails to comply with this provision, the Customer shall be liable for any resulting delay and for any reasonable additional costs and expenses incurred by the Contractor during provision of the Service.
5.1. The Contractor has the right to transfer its rights and responsibilities under this Agreement to a subcontractor without the prior written consent of the Customer.
5.2. Without prejudice to the provisions set out above, neither of the parties may transfer the Agreement in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld.
5.3. To support the Contractor in the provision of the Service, the Contractor has the right to subcontract the Service and the Deliverables in whole or in part to suitable third parties, agencies or fieldwork companies. The Contractor is solely responsible for the quality of the service provided by any subcontractors in cases where these subcontractors are directly appointed and paid by the Contractor. If the Customer chooses to appoint a particular subcontractor, the Contractor shall not be liable for the accuracy, completeness or quality of the work carried out by that subcontractor.
6. Contractor Obligations
6.1. The Contractor shall exercise reasonable professionalism and care in supplying the Service and the Deliverables. Nonetheless, the Customer shall recognize and accept (a) that the percentage response rates to surveys/questionnaires cannot be predicted and are not guaranteed by the Contractor; (b) that all the figures included in the Deliverables are estimates based on samples, which are subject to limitations owing to statistical errors/approximations; and (c) that it is possible that certain assumptions on which a Deliverable is based may not remain constant when the Deliverable is translated from the controlled test stage to the actual market situation, and that subsequent changes to the market situation or to the test product itself may influence the original forecasts regarding the results, including the possibility of a Deliverable being declared invalid.
6.2. The Contractor expressly disclaims any liability for all other obligations and guarantees, whether implicit or explicit, including guarantees concerning saleability and suitability for a particular purpose.
6.3. Both parties agree to make reasonable efforts to uphold the ESOMAR Code of Conduct.
6.4. The Contractor shall make reasonable efforts to supply the Services and the Deliverables in accordance with the estimated deadlines set out in the relevant Offer. However, the Contractor is not liable for any failure to meet the proposed deadlines, or for any loss or damage incurred by the Customer due to a delay caused directly or indirectly by any actions or omissions on the part of the Customer and/or any third party for whom the Contractor is not responsible under this Agreement.
6.5. If the Contractor agrees to supply a Deliverable to the Customer in electronic format, both parties shall make reasonable efforts to comply with the security requirements that the Contractor may issue to the Customer from time to time.
7. Intellectual Property Rights and Public Statements
7.1. The Intellectual Property Rights to an Offer issued by the Contractor are and remain the sole property of the Contractor.
7.2. For Multi-Client Services, the Intellectual Property Rights to the Deliverables shall be held by the Contractor at all times. On completion of the Service and following payment of all Fees owed to the Contractor, the Customer shall have the right to use the Deliverables in good faith for appropriate internal professional purposes or for other purposes set out in the Offer, but not shall not have the right to license the Deliverables to other parties.
7.3. For Single Client studies, the Intellectual Property Rights to the Deliverables shall be held by the Customer, provided that all Fees owed to the Contractor in relation to those Deliverables are paid.
7.4. The parties agree that both during this Agreement and after the termination or expiry of this Agreement, the Contractor shall have the right to use all Deliverables and all other results and reports issuing from the Services for its own internal purposes, as part of its own databases, and for purposes relating to its business operations under the conditions set out in this article, as well as in connection with any legal disputes.
7.5. Notwithstanding the foregoing article 7.3, all expertise and all Intellectual Property Rights of any kind relating to technologies, principles and formats, as well as to all materials, software, programs, macros, algorithms, modules, methods and all other items that are used or created by the Contractor in order to generate an Offer or to carry out the Services and that are of a general nature or are otherwise not produced exclusively for the Customer, shall remain the sole property of the Contractor at all times, and the Customer confirms that it will not make any use of or otherwise infringe upon these Intellectual Property Rights.
7.6. The Deliverables supplied by the Contractor are generally exclusively intended for internal use by the Customer. The Customer undertakes to notify the Contractor in advance of any intended further publication of a Deliverable, or of all or part of the results supplied by the Contractor. The Customer undertakes not to publish any Deliverables in a manner that exaggerates, distorts, or misrepresents either the Contractor's findings or any data supplied by the Contractor, or that may damage the Contractor's business or its reputation.
7.7. The Customer understands and agrees that it must inform the Contractor in writing before the start of an assignment if the Customer plans to produce advertisements, public announcements, marketing materials, press releases etc. ("public statements") that contain all or part of the Deliverables or any component of the Services. The Customer shall only make a public statement of this kind based on a Deliverable or on any component of the Services after obtaining the Contractor's prior written consent.
7.8. Each of the parties has the right to name the other party in marketing or advertising materials in a secondary manner as its service provider or Customer in the context of declaring sources; aside from this right, the Customer does not have the right to use the Contractor's name, trademark, logo or slogans without the Contractor's prior written consent.
7.9. In the event that one or more of the obligations under article 7.8 are breached, the Customer is obliged to pay an immediately payable penalty of EUR 15,000 for each infringement and a penalty of EUR 5,000 for every day that the breach continues, without prejudice to the Contractor's right to demand fulfillment of this Agreement and to demand compensation for any damage incurred by the Contractor in excess of the amount of the penalty.
8.1. The recipient party agrees that it (a) shall only use the Confidential Information to meet its obligations under this Agreement; (b) shall treat all Confidential Information provided by the disclosing party as private and confidential, and shall not copy this Confidential Information or disclose it to third parties; (c) shall not disclose the Confidential Information or any part thereof to any individual without the express written permission of the disclosing party, with the exception of any directors, employees, parent company, subsidiary companies or contracted subcontractors of the recipient party who need access to this Confidential Information in order to use it in connection with the Services, and who are bound by the applicable obligations with respect to confidentiality and non-usage; and (d) shall immediately comply with any written request issued by the disclosing party to delete or return any part of the disclosing party's Confidential Information (along with all copies, summaries, and excerpts of this Confidential Information) that is in the possession or under the control of the recipient party at that time.
8.2. Without limiting the general validity of the foregoing article 8.1, the Offers issued by the Contractor contain confidential information about the Contractor, and the Customer shall maintain the confidentiality of that information, and shall not take content from, disclose to third parties or otherwise make use of the contents of any Offer or any information or ideas of any kind whatsoever that are disclosed in connection with pitching or briefing procedures without the prior written consent of the Contractor; nor shall the Customer make use of any Offer for any other purpose than that of examining its contents with a view to appointing the Contractor to supply the Services listed in the Offer.
9. Data Protection and Ownership and Storage of Data
9.1. If the Service and/or the Deliverables require the names of individuals and/or other personal data to be disclosed to the other party for the purposes of managing or processing that data, the disclosing party must obtain the necessary consent of the individuals in question, or otherwise ensure in advance that it is entitled to disclose that data under applicable local data protection laws and regulations.
9.2. In relation to personal data disclosed by the Customer to the Contractor, the Contractor shall: (a) process that data solely in connection with the provision of the Service; (b) adopt such technical and organizational security measures against unauthorized and unlawful processing, loss, destruction of or damage to personal data as may be required in accordance with the state of technological developments and the cost of such measures, in order to guarantee a level of security that is appropriate to the damage that may ensue from such processing, loss, or damage, and that is appropriate to the nature of the data under protection; and (c) answer reasonable questions asked by the Customer in order for the Customer to be able to monitor the Contractor's compliance with this provision. The Customer undertakes to comply with applicable local data protection laws and regulations, to securely store any personal data supplied by the Contractor, and to use that data solely in accordance with applicable local data protection laws and regulations. The Contractor reserves the right to approach an individual again to request their participation in follow-up studies, subject to obtaining that individual's prior consent.
9.3. Completed questionnaires, audio and video tapes, and computer files that are created by or on behalf of the Contractor during the provision of the Services shall remain the property of the Contractor and shall be retained, stored, and destroyed/deleted in accordance with applicable laws and regulations and with the Contractor's internal policy. Data is stored in Office 365. This is held in a European data center belonging to Microsoft. It is subject to strict security arrangements. For more details please visit:
9.4. The Customer may obtain copies of the research data created for a Deliverable on request and at its own expense (taking into account the requirements of the ESOMAR Code of Conduct on respecting the anonymity of respondents), provided that this data is still in the possession of the Contractor under article 9.3. For the sake of clarity, it is hereby specified that the Contractor is not obliged to supply copies of research data to the Customer if, at the Contractor's sole discretion, supplying that data would conflict with the ESOMAR Code of Conduct and/or with applicable data protection laws and regulations. The Customer guarantees that it will store and use all research data provided by the Contractor solely in accordance with all applicable data protection laws and regulations, and that it will fully indemnify the Contractor against all claims arising from conflicts with these regulations.
10. Limitations and Exclusions of Liability
10.1. Unless otherwise agreed by means of a letter or fax signed by both parties, the total liability for claims, demands, compensation, costs (including legal costs and Fee reimbursement obligations) and expenses arising from unlawful actions or omissions and/or breaches to the terms and conditions set out in the Agreement shall be strictly limited to the lower of: (i) the total sum of the Fees received from the Customer by the Contractor during the twelve (12) months preceding the claim or (ii) the sum of the Fees payable to the Contractor in relation to the specific Deliverable that forms the subject of the claim in question. The Customer's right to submit a claim against the Contractor shall expire either one year after the date on which the Service was completed or the Deliverable was delivered, or one year after the termination or expiry of this Agreement, whichever is earlier.
10.2. The Contractor is not liable for any loss of profit, revenue, data, or business opportunities, or for any consequential losses on the part of the Customer. Liability is not excluded in the event of (a) fraud and/or (b) death or personal injury caused by the fault of one of the parties, and/or (c) damage resulting from the intentions or deliberate recklessness of the Contractor and/or the members of the Contractor's management team or board of directors. The Customer recognizes that the Offer is drawn up in such a way that if the Customer requires additional protection or cover, the Customer must take out its own insurance for that purpose.
10.3. If the Contractor is required to provide conclusions and/or recommendations as part of the Services, these conclusions and/or recommendations solely and exclusively represent the opinion of the Contractor and are based on variable assumptions that are applied in the field of market research and forecasting, which are based on a controlled test environment. Although this data is the result of careful analysis and thorough work procedures, it constitutes just one of the many factors that should be taken into account by the Customer. Under no circumstances is the Contractor liable to the Customer for loss or damage of any kind relating to the conclusions or recommendations provided by the Contractor in connection with the Services or included with the Deliverables, or for any claim made by the Customer against these conclusions or recommendations. The Customer hereby acknowledges that it is solely responsible for the consequences of any actions it takes that are based on the Deliverables, or on its interpretation of the Deliverables.
11. Product Testing
11.1. If the Service involves testing or usage of products, samples, or test materials (including prototypes) and/or third-party products that are supplied by the Customer, the Customer guarantees and declares, subject to any contrary provisions of this Agreement, (i) that the contents, packaging, or labels comply with all applicable legislation in every relevant jurisdiction; and (ii) that it shall be responsible either for issuing an exclusion of liability/waiver of rights to respondents or approving a draft exclusion of liability/waiver of rights drawn up by the Contractor, which may be required for the products, samples, or test materials in question. The Customer indemnifies the Contractor and any subcontractors against any losses, third-party claims, demands, compensation, costs, levies, expenses, or liabilities (or legal proceedings, inquiries, or other associated procedures) suffered or incurred by the Contractor and subcontractors that relate to, directly or indirectly arise from, or concern the testing or usage of these products, samples, or test materials. If required to do so by the Contractor, the Customer shall provide evidence to demonstrate that it is adequately insured against product liabilities and any other liabilities as determined by the Contractor.
11.2. Under no circumstances is the Contractor liable for usage or loss of or damage to these products, samples or test materials once they have been issued to respondents.
12.1. Any obligations under this Agreement which by virtue of their nature remain applicable after the termination or expiry of this Agreement shall retain their validity accordingly.
12.2. All notifications under this Agreement must be given by post or by fax. In the event of a notification being sent to the Company, a copy of the notification must be sent to the General Director of the Company. Notification via email is insufficient.
12.3. The Contractor is not liable for failing to meet its obligations under this Agreement owing to fire, storms, riots, strike action, sickness, material shortages, lockouts, war, flooding, civil unrest, terrorism, or inspections, restrictions, or prohibitions imposed by local or national authorities.
12.4. The parties hereby agree that, in concluding this Agreement, they have not relied upon statements, assertions, guarantees, obligations, or arrangements (whether made innocently or due to negligence) made by any person (whether a party to this Agreement or otherwise) other than those expressly set out in these terms and conditions. However, nothing in this article can limit any liability arising from fraud or misrepresentation on the part of either the Customer or the Contractor.
12.5. If a provision of this Agreement is or becomes unlawful, invalid, or unenforceable under the laws of any jurisdiction, this shall not influence or restrict: (i) the legality, validity, or enforceability in that jurisdiction of any other provisions contained in this Agreement; or (ii) the legality, validity, or enforceability of that or any other provision of this Agreement under the laws of any other jurisdiction.
12.6. None of the provisions of this Agreement may be enforced by a third party.
12.7. This Agreement is subject to Dutch law, and the parties agree that any disputes shall be referred to the competent court in Amsterdam, whose competence is exclusive except for the enforcement of a judgment, in which case its competence is non-exclusive.
Initial Concept B.V.
2013 BZ Haarlem
Tel. +31 (0)20 820 3600
Chamber of Commerce number 34278248