General Terms and Conditions of Business
§1 Validity of these General Terms and Conditions of Business
The following general terms and conditions of business shall apply for all market and social research projects which the client requests ISM GLOBAL DYNAMICS to quote for or to carry out.
If the client’s own general terms and conditions of business contradict or deviate from ISM GLOBAL DYNAMICS’s general terms and conditions of business, these shall not apply automatically, even though the client should demand absolute precedence of his own general terms and conditions of business. However, in case of deviation and/or contradiction, all concurrent and not contradicting terms and conditions shall apply.
Any additional amendments require without exception written approval by both parties involved. Further the legal regulations shall apply.
ISM GLOBAL DYNAMICS submits research proposals to the client stating the nature of the task to be resolved, research method(s), the time required and the fees due. The client shall receive this research proposal for the sole purpose of deciding whether or not to commission ISM GLOBAL DYNAMICS. The contents of the proposal must not be made available in whole or in part to any third party without mutual written consent.
Acceptance of the proposal by the client must be in written, also by e-mail.
The proposal shall be valid without changes for the period of 3 months. However, during this period, ISM GLOBAL DYNAMICS may withdraw or change the proposal at any time as long as no binding acceptance has been received from the client.
Exclusiveness for specific product fields, objects or methods of research can only be guaranteed by ISM GLOBAL DYNAMICS through written approval stipulating the duration as well as any additional fees that may be incurred.
In principle, the fee stated in the research proposal covers all services necessary for the execution of the study. The client will be informed about any additional costs not being included in the agreed project fee – e. g. test material or travelling cost – in the research proposal. Any additional cost will be charged upon finalization of the study.
The research proposal submitted by ISM GLOBAL DYNAMICS is based on the information delivered by the client. ISM GLOBAL DYNAMICS may charge any additional costs to the client’s account which arise due to missing or incorrect information delivered by the client, provided they are linked to a legitimate factual cause and are clearly comprehensible for the client. This shall apply despite the fact whether the client is responsible for these costs.
The project fee is always quoted in Euros (€) and net, i. e. without value-added tax. Should the client explicitly request the quotation with another currency, this is subject to changes in currency exchange rates. Reference quotation will be the average exchange rate of the month of quotation. In case of additional costs arising due to changes of the exchange rate, ISM GLOBAL DYNAMICS may charge the client with these additional costs after written announcement.
Unless any different regulation has been agreed, 50 % of the fees are due upon placement of the order and 50 % upon completion of the project, payable to ISM GLOBAL DYNAMICS. In case the study consists of several project phases where partial results are to be delivered, each project phase will be invoiced separately. On delay of payment, ISM GLOBAL DYNAMICS shall be entitled to charge interest on arrears at a rate of 8 percentage points above the base interest rate. ISM GLOBAL DYNAMICS also reserves the right to withhold services if payments are overdue.
§4 Execution of the Project
ISM GLOBAL DYNAMICS will carry out any project and research in the sense of advisory services in accordance with the acknowledged principles and recognized codes of practice of market and social research (ADM and ESOMAR).
ISM GLOBAL DYNAMICS shall be entitled to subcontract parts of the project to third parties as long as they are sufficiently qualified and working in accordance with the acknowledged principles and recognized codes of practice of market and social research (ADM and ESOMAR).
Should it emerge after commissioning the project that the study cannot be conducted due to unforeseeable reasons – both for the client and for ISM GLOBAL DYNAMICS – the client will be informed immediately. If no methodological solution to the problem is found, ISM GLOBAL DYNAMICS shall be entitled to withdraw from the contract due to impracticability.
§5 Property Rights, Copyright and Accessory Obligations
ISM GLOBAL DYNAMICS shall own all rights vested in it by the Copyright Act. The client especially acknowledges that regarding research proposals, methods, concepts, procedures and methodologies as well as for publications, presentations and graphics designed by ISM GLOBAL DYNAMICS, the exclusive copyright and as well as the proprietary right are entitled to ISM GLOBAL DYNAMICS. The client’s copyright in the documents drawn up by him shall remain unaffected.
All documents, materials and data resulting from the execution of the project shall remain property of ISM GLOBAL DYNAMICS. This shall also serve the purpose of ensuring anonymity of respondents and test persons. The client shall be entitled to view all documents, materials and data in the premises of ISM GLOBAL DYNAMICS during the legal retention period. All deviant requests by the client shall be agreed upon in writing when commissioning the project.
The client and ISM GLOBAL DYNAMICS shall undertake to treat all information exchanged while carrying out the project as strictly confidential. This shall apply accordingly to all companies and persons subcontracted by ISM GLOBAL DYNAMICS with the execution of part deliveries for the project. Further, this obligation extends to the time after completion of the project. All information publicly available or accessible before commissioning of the project shall not be affected.
§6 Research Results and Report
The client will be provided with research results and report for internal use. Circulation to a third party or publication – also if essential parts are concerned – needs prior written consent by ISM GLOBAL DYNAMICS. This does not affect information belonging to the client due to copyright or property rights.
If the client wishes to excerpt research results or parts of the research report, these excerpts have to be clearly marked and have to name ISM GLOBAL DYNAMICS as being the author. ISM GLOBAL DYNAMICS shall not be responsible for damages arising from the client’s illegal or negligent use of the research results.
§7 Warranty and Liability
ISM GLOBAL DYNAMICS’s liabilities as well as the client’s claims arising from defects are subject to the statutory provisions, unless otherwise stated.
ISM GLOBAL DYNAMICS guarantees the correct execution of the survey respecting the scientific principles and methods of analysis according to §4. ISM GLOBAL DYNAMICS shall be notified in writing by the client of any warranty claims arising from apparent defects within 2 weeks after receipt of the research results. In case of non-apparent defects, the period of notice starts upon notification of the defect, however not later than 3 months after receipt of the final legally relevant data and for a maximum period of 1 year after that date.
ISM GLOBAL DYNAMICS shall not be liable for damages incurring due to decisions and recommendations taken by the client in connection with the research results. The client acknowledges full responsibility for all measures and decisions taken. This shall not apply in case of grossly breach of duty or negligent behaviour on the part of ISM GLOBAL DYNAMICS, its legal representatives or its vicarious agents. These involve in particular culpable violation of life, body or health as well as fraudulent concealment of defects of the study.
In case of damages caused by negligent breach of key contractual duties, ISM GLOBAL DYNAMICS shall be liable only for typical and foreseeable damages. In this case compensation is limited to the net amount of remuneration of the project in question. Compensation for indirect damages as well as unforeseeable consequential damages shall be excluded.
In case the client is taken responsible for alleged breach of duty of ISM GLOBAL DYNAMICS and should therefore intend to seek recourse against ISM GLOBAL DYNAMICS, ISM GLOBAL DYNAMICS shall be notified at the earliest possible. ISM GLOBAL DYNAMICS is entitled to institute or supervise legal proceedings. This right does not affect the client’s right of defence.
§8 Delay, Damage or Loss
ISM GLOBAL DYNAMICS shall treat all material, especially test products, received from the client with utmost diligence. Transportation shall be at the client's risk and cost.
Therefore, ISM GLOBAL DYNAMICS shall only be liable in case of loss and/or damage of test material or in case of delivery delay and possible consequential costs if caused by grossly negligent behaviour of ISM GLOBAL DYNAMICS. ISM GLOBAL DYNAMICS may also not be liable in case the above-mentioned damages are due to third parties involved or circumstances (in particular force majeure, riot, strike, acts of sovereignty, lock-out), which ISM GLOBAL DYNAMICS may not have foreseen, influenced or averted.
Should the client default in delivering the information or material necessary for the execution of the project, ISM GLOBAL DYNAMICS may extend the delivery and performance deadlines accordingly.
§9 Product Tests
In case the project includes testing or use of products, samples or test material (including prototypes) from the client, the client shall have unlimited responsibility that all contents, packaging and labelling meet with the statutory provisions of the respective country. Further, the client shall be responsible to provide ISM GLOBAL DYNAMICS with the disclaimer for test persons or – in case ISM GLOBAL DYNAMICS issues the disclaimer – to give a written approval to ISM GLOBAL DYNAMICS, as far as they are compulsory for the products, samples or test material involved.
The client shall be responsible that all necessary chemical, medical, pharmaceutical and other tests/examinations/analyses of the test products have been duly executed prior to commissioning ISM GLOBAL DYNAMICS with the project. Further, the client shall be responsible for the implied warranty of usability of the product for this test and that no indication regarding possible harm resulting from the product is given.
The client shall indemnify ISM GLOBAL DYNAMICS for all loss, damage and claims from third parties which are due to the usage of the products, samples or test material in the course of the survey. Therefore, the client engages to conclude an appropriate product liability insurance.
ISM GLOBAL DYNAMICS shall not be liable for the use, loss or damage of these products, samples or test materials after having handed them over to test persons.
In all other respects, the regulations of the product liability laws shall apply.
§10 Final Clause
The place of deliverable and performance shall be ISM GLOBAL DYNAMICS’s principal place of business, i. e. Bad Homburg v. d. H. In case of any business disputes in relation to the order, the exclusive venue shall be Bad Homburg v. d. H. Any contract shall be governed solely by the laws of the Federal Republic of Germany.
The invalidity of individual contractual provisions shall not affect the validity of the remainder of the contract. An invalid clause shall be replaced by a valid one, which comes closest to the commercial purpose as well as the interests of both contracting parties.
Any modifications or amendments to this contract must always be made in writing to be effective.