General Terms and Conditions of IvoMar Marktonderzoek B.V. as applicable to the carrying out of assignments to conduct market research
Article 1 - General
1.1. These general terms and conditions apply to all offers and/or quotations and/or assignments and/or agreements pertaining to the carrying out of market research, hereinafter to be referred to as ‘the Assignment’, issued or accepted by a market research agency that is an affiliated member of the MOA, hereinafter to be referred to as ‘the Agency’, and the (potential) client, hereinafter to be referred to as ‘the Client’.
1.2. Any deviation from these General Terms and Conditions is to be agreed in writing and only applies to the Assignment to which it explicitly refers. Any general terms and conditions by the Client shall not apply unless the parties have agreed in writing that (parts of) said terms and conditions are applicable in addition to these General Terms and Conditions. 1.3. If one or more of the provisions in these General Terms and Conditions should prove to be invalid, contrary to the law or otherwise unenforceable, this shall have no effect on the validity of the other provisions. To replace the invalid or unenforceable provision, the parties will negotiate in good faith concerning a new provision that will fulfil the purpose of the invalid or unenforceable one to the greatest possible degree. 1.4. All Assignments shall be carried out in accordance with the code of Marketing Research and Statistics. Under no circumstances shall Assignments be carried out in violation of the mandatory provisions and prescriptive requirements of the International ICC/ESOMAR Code of Practice.
Article 2 - Research briefing
2.1. The Agency shall seek to obtain a sufficiently clear idea of the objectives that the Client wishes to achieve with the Assignment.
2.2. Any research proposals submitted by the Agency are based on information provided by the Client. The Client vouches for the fact that, to the best of its knowledge, it has provided all the information considered to be essential for setting up and carrying out the Assignment. The Client also vouches for the fact that it is authorised to use all the information provided to the Agency, including address details, for the purposes of market research.
2.3. All information provided to the Agency by the Client, either during the research briefing or during the research process, is strictly confidential and the Agency is obliged to preserve the secrecy of the information. This obligation to preserve the secrecy of the information also applies in the event that the Agency has received information from the Client, without subsequently being issued with an Assignment.
Article 3 - Research proposals and quotations
3.1. All research proposals and quotations submitted by the Agency are free of obligation. An Assignment shall be considered as having been accepted, once the Agency has confirmed the Assignment in writing, after having reached an agreement regarding the research proposal, or once research activities have commenced with the Client’s knowledge.
3.2. The rates and costs quoted by the Agency may not be increased for a period of four months following the quotation, unless the research cannot be carried out within the period specified in the research proposal due to fault on the part of the Client, or unless the Agency has reserved the right to increase its rates and costs. The amounts specified in quotations are always quoted exclusive of value added tax.
Article 4 - Liability
4.1. The Agency shall carry out the Assignment to the best of its knowledge and ability. Unless otherwise agreed in writing, this commitment shall be considered an obligation to perform to the best of one’s ability.
4.2. The Agency shall be liable for any shortcomings in the execution of the Assignment, to the extent that these shortcomings are due to failure on the part of the Agency to exercise the necessary care and expertise that could normally be expected in the performance of such an Assignment. Liability for any damage caused as a result of such failure, shall be limited to the sum of the payment received by the Agency for work carried out within the context of the Assignment.
4.3. Any claims by the Client are to be made within one year from the date on which the damage was discovered. By failing to bring forward a claim within the above period, the Client forfeits the right to compensation. Any liability on the part of the Agency for any consequential damage incurred by the Client is hereby excluded. Within the context of these General Terms and Conditions, consequential damage is understood to include all losses incurred as a result of any form of use of the research results by the Client, or by any third party. Hence the Client is to indemnify the Agency against any claims by third parties on this count.
Article 5 - Delivery dates and planning
5.1. Agreed delivery dates shall not be binding in the event of a delay caused by unforeseen circumstances that involve interim changes in the Assignment or other circumstances which neither the Agency nor the Client reasonably had to take into account at the time the agreement was concluded. In the event that the Agency anticipates a delay, the Agency shall notify the Client to this effect immediately.
5.2. In the event that the Client wishes to introduce a change in the agreed schedule, the Agency shall endeavour to incorporate the change, provided that the Client discusses the change with the Agency in good time, and on the condition that, given the circumstances of the case in question, the Agency can reasonably be expected to do so.
When Client deviate of the planned dates of the fieldwork, the Agency has the right to charge the costs to the Client, which occur as a result of the change that the Client wishes to make in the agreed schedule. Unless a different term is agreed in writing, the Client shall, in all cases, notify the Agency of any changes to the agreed schedule at least ten (10) working days before the fieldwork is due to start. In the event that the Client fails to observe said period of notice, the Agency shall be entitled to demand full payment of the agreed fee for the fieldwork. Any alternative income shall be deducted from that fee. General Terms and Conditions of IvoMar Marktonderzoek B.V. as applicable to the carrying out of assignments to conduct market research
Article 6 - Changes / additional work
6.1. In the event that the Client wishes to introduce certain changes to the set-up and/or content of the research, the Client is to discuss the matter with the Agency well in advance. The Agency shall endeavour to incorporate any changes the Client wishes to make, provided that the Agency can reasonably be expected to do so, and provided that an agreement has been reached regarding such changes and the costs that can reasonably be charged in addition to the agreed fee, or deducted from the agreed fee.
6.2. Under no circumstances shall the Agency be permitted to make any changes to the agreed setup and/or content of a research assignment without the Client’s consent.
6.3. In the event that the Agency is likely to perform more work than originally provided for in the research proposal on which the Assignment is based, the Agency shall consult the Client on the matter. Any additional work to be carried out by the Agency shall be paid for by the Client, unless this additional work is necessary due to negligence on the part of the Agency, or because the Agency failed to accurately assess the extent of the work concerned, or could reasonably have anticipated such. The fee for the additional work in question shall be determined in mutual agreement by the parties.
Article 7 - (Premature) termination of the Assignment / suspension and cancellation of the Assignment
7.1. In the event that the Assignment is not carried out in accordance with the research proposal on which the Assignment is based due to a fault attributable to the Agency, the Client shall serve the Agency written notice of default and shall give the Agency the opportunity to carry out the Assignment as agreed, observing a period of notice of one week. Only in the event that the Client cannot reasonably be expected to do so, shall the Client not be bound to grant the Agency the opportunity to carry out the Assignment properly. Any additional costs incurred by the Agency, once the Agency has been served notice of default, do not qualify for reimbursement. Only in the event that the Agency persists in failing to meet its obligations after having been served notice of default, is the Client entitled to cancel the Assignment.
7.2. In the event that the Agency is unable to carry out the Assignment, or is unable to carry out the Assignment in accordance with the research proposal on which the Assignment is based due to a fault that can be attributed to the Client, the Agency shall serve the Client written notice of default and, observing a period of notice of one week, shall offer to carry out the Assignment as agreed, unless the Agency cannot reasonably be expected to do so. The extra costs which Agency has to make for this are at the expense of Client.. In the event that the Client chooses not to take advantage of said offer, the Client shall be obliged to reimburse the Agency for losses incurred arising from the non-performance of the Assignment. The Agency shall be entitled to cancel the Assignment and/or to suspend the execution of the Assignment without having to serve notice of default, in the event that the Client fails to fulfill its obligations towards the Agency altogether, in terms of time, or as agreed.
7.3. In the event that the Agency or the Client becomes bankrupt, applies for (temporary) suspension of payment, or discontinues its operation, the other party shall be entitled to terminate the Assignment with immediate effect.
Article 8 - Conditions of payment
8.1. Unless otherwise indicated the rates specified in a research proposal and/or quotation include traveling expenses and board and lodging expenses. Upon request by the Client, the Agency is to provide a basic specification of any such costs that can be charged to the Client.
8.2. Unless otherwise agreed, payment shall be due within 21 days of the date of invoice. Any outstanding payments shall be subject to interest calculated at the statutory rate from the date on which payment is due. In the event that the Client fails to fulfill one or more of its obligations towards the Agency, all reasonable costs incurred in the process of seeking to obtain payment without going to court are to be paid by the Client, with a minimum of 15% of the claim. The Client is not entitled to suspend any of its obligations towards the Agency, nor is the Client entitled to set off any of its obligations against obligations on the part of the Agency.
Article 9 - Intellectual property
9.1. All rights (including the copyright) pertaining to the following (research) materials continue to rest with the Client, or shall be transferred to the Client: a. Questionnaires, instructions, specifications and data files furnished by the Client, and any other information provided by the Client. b. The results of the market research - in the form of reports, recommendations, and other such documents - in the event that the Assignment involves specially tailored research, on the condition that the Client has settled all outstanding fees relating to the Assignment. Within the context of these General Terms and Conditions specially tailored research is understood to include all market research activities, both qualitative and quantitative, carried out specifically or solely on behalf of the Client.
9.2. The Agency is not permitted to disclose the content of (any part of) the research material referred to in Article 9.1 to any third party without the Client’s consent. 9.3. All rights, including the copyright, pertaining to the following research materials rest and shall continue to rest with the Agency: a. Research proposals, statements of expenditure, quotations and other such documents. b. All research materials developed by the Agency, such as research models, techniques, questionnaires, instruments and software. c. The results of the market research in the form of reports, recommendations and other such documents in the event that the Assignment involves multi-client research. Within the context of these General Terms and Conditions multi-client research is understood to include all market research activities, both qualitative and quantitative, carried out within the framework of research, to the extent that the data is provided by and/or compiled for more than one client. 9.4. The Client is not permitted to disclose the content of (any part of) the research material referred to in Article 9.3 to any third party without the Agency’s consent. The Client is entitled to reproduce the material referred to in Article
9.3. sub clause c. for internal use, and to use this material for other internal purposes.
Article 10 - Damage caused to or by the test material
10.1. All damage caused to test material placed at the disposal of the Agency by the Client shall be paid for by the Agency, unless this damage is caused by factors beyond the Agency’s control.
10.2. All damage caused by the (use of the) test material (among taste samples) placed at the disposal of the Agency by the Client, shall be paid for by the Client, unless this damage was caused by deliberate intent or gross negligence on the part of (the personnel employed by) the Agency. The Client shall indemnify (the personnel employed by) the Agency against any possible claims by third parties in this matter.
Article 11 - Force majeure
11.1. If the Agency is prevented by force majeure from fulfilling its obligations, the Agency will inform the Client thereof immediately and consult with the Client. The Client will cooperate on the desired extension of the period, provided that this can reasonably be demanded of the Client and agreement is reached on this and concerning the extra costs that can reasonably be charged, or that can reasonably be deducted.
11.2. If, due to force majeure, the execution of the Assignment is delayed by more than three (3) months, both the Agency and the Client are authorised to regard the Assignment as having been cancelled. In that event, the Agency is entitled only to compensation of the costs incurred by it.
Article 12 - Secrecy and exclusivity
12.1. The Parties are obliged to preserve the secrecy, vis-à-vis third parties who are not involved in the execution of the Assignment, of all confidential information that they have obtained from one another or from any other source within the framework of the Assignment. Information shall be regarded as confidential if it is communicated by the other party or if this can be deduced from the nature of the information, but in any event the information as referred to in article 2.3 of the General Terms and Conditions.
12.2. The Client is obliged to guarantee the privacy interests of the respondents. The Client is only authorised to apply the research results obtained after the market research for statistical or comparative purposes, provided that these results cannot be traced back to individual respondents. Nevertheless, the Client and the individual respondents shall be free in joint consultation to make agreements that differ from this provision.
12.3. In the event of violation of the provisions set forth in this article, the Client shall owe to the Agency an immediately payable fine of ten (10) times the agreed compensation for the Assignment, without prejudice to the right of the Agency to claim damages.
Article 13 - Transfer of rights and obligations
13.1 The Client is not authorised to transfer the rights and obligations which derive for him from the Assignment in whole or part to any third parties, unless with the written permission of the Agency.
Article 14 - Final provisions
14.1. The Client is never authorised to offset an obligation on his part, whether payable or not, with an obligation of the Agency against the Client.
14.2. All legal claims of the Client against the Agency on the basis of an Assignment or the law are prescribed after the expiry of one year after the period of prescription under the legal rules has commenced.
14.3. These General Terms and Conditions are filed with the Chamber of Commerce. The most recently filed version applies.
14.4. The Agency is authorised to introduce changes in the General Terms and Conditions. These changes shall enter into effect at the announced time of entry into effect, except with regard to assignments agreed prior to that date. The Agency will send the modified General Terms and Conditions to the Client in good time. If no time of entry into effect is communicated, changes shall enter into effect vis-à-vis the Client as soon as the change is communicated or becomes known to him, except with regard to assignments agreed prior to that date.
Article 15 - Applicable law / rules regarding the settlement of disputes
15.1. All agreements between the Client and the Agency are exclusively subject to Dutch law. All disputes that may arise as a result of, or in connection with the execution of an agreement or agreements between parties, are to be settled by the competent judge in the place where the Agency is situated, unless the Agency chooses to bring the dispute before the district court in the place where the Client’s business premises are located. Filed with the Chamber of Commerce of Amsterdam (nr. 33.254.759).
