§ 1 Scope
1.1 These provisions in their currently valid version apply to all services by SirValUse Consulting GmbH (referred to hereafter as provider), regardless of the content or legal nature thereof. They take priority over all customer contract conditions ("Conditions of Purchase", "Special Contract Conditions" etc.), even if the provider does not contradict deviating conditions or counter-confirmations by the contracting partner. Any such conditions are herewith explicitly rejected.
1.2 Insofar as quotations or contracts of the provider contain clauses which deviate from the following general terms, the individually agreed contract provisions take priority over these general terms.
1.3 These terms apply to natural persons and legal entities acting in conclusion of the contract in the scope of their commercial or self-employed activities (entrepreneurs) and to legal entities in accordance with § 310 para. I German Civil Code.
§ 2 Remuneration/Conditions of Payment/Settlement
2.1 Orders placed with the provider come into effect with the bidder's written or electronic order confirmation, which also states both the remuneration and the conditions of payment.
2.2 Insofar as services are settled on the basis of outlay, the provider is entitled to submit monthly invoices. The provider's staff shall keep a list of the daily working hours stating the project concerned. The customer can demand to see the list at any time.
2.3 All accounts receivable are due on issuing the invoice for payment within 14 days without any deductions.
2.4 If the customer defaults in payment, interest is charged on the sum owed amounting to 8 percentage points over the basic interest rate. This does not affect the right to claims for higher default damages.
2.5 Until all current and future accounts receivable arising from the business relationship with the customer have been paid completely, the bidder retains the right of ownership to the supplied products.
2.6 Notwithstanding his right to refuse payment for missing or faulty services, the customer is not entitled to withhold payment. He can only settle up against accounts receivable which have been ascertained by law or are accepted by the provider.
§ 3 Customer's Duty to Cooperate
3.1 The customer ensures that the provider is given all documents needed to fulfil the contract unsolicited and in plenty of time and that the provider is informed of all matters and circumstances pertaining to fulfilment of the contract.
§ 4 Sales and Distribution Measures
4.1. The customer permits the provider to name him to third parties as a customer; in particular the provider is entitled to identify the customer as such on his web site.
4.2 In case of an accordant agreement that is to be arranged separately, the provider is allowed to use the customer's name (the customer's firm) for his own acquisition purposes.
§ 5 Confidentiality by the Provider/Data Protection
5.1 The provider is obliged without any time limits to treat all business and corporate secrets and all other confidential information made known to him in the context of executing the order with absolute confidentiality. Only the customer himself, but not his vicarious agents, can release the provider in writing from this duty to confidentiality.
5.2 The provider undertakes to impose the above duty to confidentiality on all persons instructed by him to execute the order.
5.3 Either contracting party may process the data of the other contracting party automatically as part of processing the order, or arrange for such data to be processed by third parties.
§ 6 Disturbances in Performance
6.1 Insofar as punctual performance is impeded by a cause for which the provider is not responsible, including strike or lock-out, the provider can request an appropriate postponement of the deadlines. If the outlay is increased for reasons for which the customer is responsible, the provider can also insist on remuneration for his additional outlay.
§ 7 Liability of the Provider for Violated Rights
7.1 The provider shall obtain all necessary information about third-party rights with regard to his service and acquire these rights from third parties where necessary to fulfil the contract.
7.2 If a third party makes claims on the customer for violated rights, the customer shall inform the provider immediately. It is then up to the provider - and where applicable his subcontractors - where admissible, to reject the submitted claims at his costs. The provider shall exempt the customer from any third-party claims.
7.3 If third-party rights are infringed by any service, the provider shall proceed as follows at his own choice and costs:
- acquire the right for the customer to use the service, or
- design the service so that it does not infringe third-party rights
- take back the service at the invoice price (less appropriate compensation for use).
Notwithstanding claims for damages according to § 7 General Terms.
7.4 The provider is entitled to prohibit the customer's use of the service according to the above provisions if claims based on third-party rights have been filed against him.
§ 8 Provider's Liability for Damages
8.1 The provider is liable to the customer, for any legal reasons whatsoever, for any damage caused by his staff through wilful intent or gross negligence and for any damage caused by the lack of warranted qualities.
8.2 If in the case of unpunctual performance caused by wilful intent or gross negligence of the provider, the customer wants to assert his rights based on the claim that the partial performance is no longer of interest to him, he must make this lack of interest credible.
8.3 In the case of slight negligence, the provider is only liable if the provider has infringed a cardinal duty. Liability for any one case of damages is limited to the order value but not to less than �?� 50,000. For on-going payments of flat rate amounts, liability is limited to the flat rate amounts to be paid in the year in which the individual damages occurred. On concluding the contract, the customer can demand extended liability at a surcharge.
The provider is also liable for slight negligence if the damages are covered by the provider's business liability insurance. The provider undertakes to preserve the insurance cover existing on conclusion of the contract.
8.4 Compensation is not paid for unforeseeable, untypical damages and damages attributed to the customer's sovereignty or risk both in the event of delay and poor performance, when the customer is a merchant in accordance with the German Commercial Code.
8.5 The provider assumes no liability for the loss of customer data. For any other data loss, the provider is only liable for the outlay necessary by the customer for reconstruction of the data given proper data backup procedures, on condition that the provider has correctly fulfilled his duties to provide correct instructions for the data backup procedures.
8.6 Any claims for contractual damages of the customer on the provider lapse within twelve months of the claim arising, unless shorter statutory periods of limitation exist.
8.7 Notwithstanding any claims arising from §§ 1 and 4, Product Liability Law.
§ 9 Miscellaneous
9.1 Subject to German law. Insofar as foreign customers would be subject to the United Nations Convention on Contracts for the International Sale of Goods adopted into German law, this is precluded.
9.2 If individual provisions of these terms and conditions should be or become ineffective, this does not affect the validity of the remaining clauses. Ineffective provisions are to be replaced by clauses whose commercial success corresponds as closely as possible to the intentions of the invalid clause.
9.3 Any changes or additions to these terms or to the contract must be made in writing and must be marked explicitly as such.
9.4 Place of jurisdiction for disputes with a merchant, a legal public law entity or special public assets is the provider's headquarters.
§ 1 Subject of the Contract
1.1 The provider names a project manager, the customer names a responsible contact partner, both of whom are entitled to take decisions or obtain these without delay. The project manager shall record all decisions in writing. The contact partner is available to the provider to supply any necessary information. The provider is obliged to involve the contact partner wherever necessary for execution of the order.
1.2 The provider shall inform the customer regularly of the status of work.
1.3 Insofar as the customer's requirements do not already result from the task stated in the contract, the provider shall define the details with the customer's support, draw up a corresponding specification and submit it to the customer for approval. The customer shall grant written approval within 14 days when conform with the contract. The specification is binding for all further work.
The specification is continuously refined in consultation with the customer while being implemented in software.
If the provider sees that the customer's task is faulty, unclear or not feasible, he shall inform the customer in writing without delay. The customer then decides how to proceed further.
1.4 The customer ensures that qualified staff are available for use of the software at the latest on installation.
1.5 The provider shall use suitably qualified staff with all the necessary specialist know-how and provide these with on-going support and supervision throughout execution of the order. Accordingly, the provider decides at his own discretion which staff to use or replace.
§ 2 Change in Service
2.1 If the customer changes his requirements, the provider agrees to concur insofar as this is acceptable for the provider, particularly with regard to outlay and schedule. Insofar as fulfilment of requests for change affect the contract conditions, the provider can insist on a corresponding adjustment of the contract conditions, in particularly the amount of remuneration or postponement of the deadlines.
At the provider's request, the customer shall detail his request for change to the same degree which the original task is detailed in the contract. On request from the customer, the provider shall assume this task on payment of his outlay.
2.2 Any agreements about changes are to be recorded in writing.
2.3 The provider shall enforce the request to adapt the contract without delay. The customer shall contradict without delay if he does not agree to the requested contract adaptation.
§ 3 Work Location, Customer's Duty to Cooperate
3.1 The work can be performed on the customer's premises if required.
3.2 The customer is obliged to support the provider where necessary and to create in his business all prerequisites necessary for proper completion of the contract. At the provider's request, the customer shall make sufficient work stations and working equipment available, without charge.
§ 4 Acceptance
4.1 The customer undertakes to check the contractual conformity of the software plus documentation with regard to essential functions and to declare acceptance in writing when conform with the contract. The period for review amounts to three weeks, unless otherwise agreed.
As part of the installation procedure, the provider is willing to support the customer during an acceptance test at extra charge.
4.2 The software counts as being accepted as soon as its use is not considerably limited because of reported faults after the end of the test period of two weeks. The provider shall draw the customer's attention to this in writing during installation.
4.3 Insofar as partial deliveries have been agreed, these are accepted individually. Correct interaction of all partial deliveries is then part of the acceptance tests of the final delivery.
§ 5 Rights of Use
5.1 The customer is entitled to use the software including documentation for the contractually stipulated purpose.
5.2 All other rights of use are reserved for the provider. The provider may use the software for other purposes unless subject to confidentiality as per § 4 General Terms.
§ 6 Warranty
6.1 The provider warrants that when used according to the contractual purpose, the software corresponds to the task in the form stipulated according to § 1.3 ST-CS without any errors which nullify or impair its suitability.
The 2-year warranty period starts with acceptance.
6.2 The customer only has any claims to warranty when reported errors are reproducible or can be illustrated by computer outputs. The customer shall report any errors in writing in an understandable manner stating all information required to detect the error.
Where necessary, the customer shall support the provider in eliminating errors, in particular at the provider's request, supplying a data carrier with the corresponding program together with working equipment.
6.3 The provider shall eliminate errors in an appropriate period of time.
6.4 The customer shall set an appropriate period of time for eliminating errors. If all attempts to eliminate the error fails, the customer can insist on reduction of remuneration, rescission of the contract or damages according to § 7 General Terms, within the statutory prerequisites.
6.5 The warranty lapses for any programs which have been modified by the customer or in which the customer has interfered unless the customer can prove in the context of the error report that his intervention had not caused the error.
6.6 The provider can insist on remuneration of his outlay insofar as he has worked on the basis of an error report without an error existing or without the customer providing the prerequisites as per § 4.1 SE-BE, the provider has drawn attention to the fact, the customer has still insisted on troubleshooting but the provider has found no errors.
§ 7 Miscellaneous
7.1 In addition to these special terms, the General Terms also apply (GT).
§ 1 General
1.1 The provider performs his activities in the sense of consultation services in compliance with the recognised code of practice for market and social research.
§ 2 Quotation
2.1 The provider submits a quotation to the interested party always in the form of a study proposal which states the task, the services required to fulfil the task, the time required for the study and the fees to be paid.
2.2 The interested party receives the study proposal only for the purpose of deciding whether to award the contract for the proposed study. Unless otherwise agreed, the contents thereof may only be published completely or partially or forwarded to third parties with mutual consent.
2.3 Insofar as the customer pursues a purpose with the order which is not obvious for the provider, he shall inform him accordingly. The customer must then reveal his purposes in writing.
§ 3 Fees
3.1 The fees stated in the study proposal cover all services offered by the provider in the context of performing the order in the study proposal.
3.2 The provider can demand additional fees for any services required by the customer going beyond this scope.
3.3 Additional costs for which the provider is not responsible and additional costs which the provider could not foresee in spite of all due care and attention when the order was awarded, can be invoiced separately by the provider if these are linked to a justified reason and are clearly apparent and adequately defined for the customer. This also applies when the customer is not responsible for these costs.
3.4 Changes to the order volume after conclusion of the contract must be subject to an explicit agreement between the parties.
3.5 The agreed fees serve to fund the performance of the corresponding study. For this reason, half of the agreed total fees plus statutory value added tax are due for payment on placing the order and half when the results are supplied. Different arrangements can be made where this appears appropriate with regard to the study method or order total.
§ 4 Exclusivity
4.1 The provider cannot guarantee exclusivity for certain product areas, study objects or study methods, unless this is agreed explicitly.
4.2 Insofar as exclusivity is agreed, the duration thereof and any possible additional fees are to be stipulated.
§ 5 Use of the Study Reports
5.1 The customer receives the study reports only for his own use. Unless otherwise agreed, the report contents may only be completely or partially published or forwarded to third parties with mutual consent. The study reports may also not be duplicated, printed, or saved in any kind of information or documentation system, or processed or distributed for such purposes. These rules do not apply to the actual results of the study (see § 6 ST-UT).
5.2 If the customer wants to make complete or partial quotations from the study report, he must clearly mark the quotations as such and name the provider as author of the study report.
5.3 It has been agreed that the customer will receive copies of the recordings of the sessions (this means exclusively audio and video data, but not written transcripts). This obligation is considered to be satisfied when the provider makes all existing recordings available to the customer, insofar as these cover at least 80% of the sessions carried out.
§ 6 Use of the Study Results
6.1 Unless otherwise agreed, the study reports are only available to the corresponding customer for his free use.
6.2 The customer exempts the provider from all claims made against the provider because the customer has used the correctly obtained results for an illegal purpose with wilful intent or gross negligence (e.g. using the results for illegal and/or incorrect advertising).
§ 7 Copyright
7.1 The provider reserves all rights to which he is entitled according to the copyright law.
7.2 The provider is entitled to ownership of all material produced in performing the order - data carriers of all kinds, questionnaires/surveys, other written documents etc., together with the actual data themselves, unless otherwise agreed. The right of the interviewed/test persons to remain anonymous may not be jeopardised by such an agreement.
7.3 This does not affect the customer's copyrights to all documents he has produced.
§ 8 Involvement of the Customer
8.1 The involvement of the customer in the study and in checking the execution and results of the study is subject to separate agreement. The provider is obliged to ensure that the interviewed/test persons remain anonymous.
8.2 Any resulting additional costs must be paid by the customer.
§ 9 Data Storage Periods
9.1 The provider undertakes to keep survey documents for a period of twelve months and data carriers for a period of two years after delivery of the study report, unless explicitly agreed otherwise.
9.2 On principle, none of the video raw data of the sessions conducted will be stored.
§ 10 Provider's Liability for Damages
10.1 If the study report/study results are not supplied on time or if test material should be damaged or lost for reasons for which the provider is responsible, the customer can set the provider an appropriate period of grace. Otherwise the statutory provisions apply.
10.2 The provider is not liable for the consequences of delayed delivery or loss or damage of the test material insofar as the delay or loss or damage is caused by reasons which,
a) are outside the provider's sphere of influence, particularly within the customer's sphere of influence and which have not been caused culpably by the provider, natural disasters or other cases of force majeure, intervention by the public authorities and industrial disputes, or
b) are within the provider's sphere of influence but not his responsibility, particularly impediments to operational procedures caused by force majeure, intervention by the public authorities or industrial disputes.
§ 11 Miscellaneous
11.1 These Special Terms do not refer to the cooperation between private market and social research institutes for the performance of orders.
11.2 In addition to these special terms, the General Terms also apply (GT).
