General Terms and Conditions

of Facit Research GmbH & Co. KG, Friedenstr. 24, 81671 Munich and Facit Digital GmbH, Friedenstr. 24, 81671 Munich for services in the areas of consulting, market, media and social research, and statistical analyses

-       henceforth referred to as “FACIT” –

 1.    Validity of these Terms and Conditions

The following General Terms and Conditions (henceforth referred to as “Conditions”) shall exclusively apply to any deliverable and service in the areas of consulting, market, media and social research, and statistical analyses which is provided by Facit Research GmbH & Co. KG and Facit Digital GmbH (henceforth referred to as “FACIT”); these Conditions are duly accepted by the Client when the contract is awarded or the service is received. They shall also apply to any future business with the Client with regard to deliverables and/or services in the areas of consulting and market research. The validity of any deviating or supplementary Terms and Conditions on the part of the Client is excluded, even if FACIT does not expressly refute them.

2.    Conclusion of the contract; subcontracting to third parties; request for modifications

2.1.     Unless otherwise agreed in writing, tenders submitted by FACIT are non-binding. A contract shall only be concluded once the order has been confirmed in writing by FACIT, and this contract shall exclusively be based on the content of the order confirmation and these Conditions. In order to become effective, any oral agreements or undertakings require written confirmation by employees of FACIT who are authorized as its representatives.

2.2     In order to fulfil its obligations arising from the contract, FACIT is also entitled to commission third parties as subcontractors.

2.3    If – after the contract has been concluded – the Client requests changes to a specified service/performance when compared to the original specification (for example, a client briefing), this alteration to the specified service/performance shall require a corresponding written agreement by the parties involved. If this alteration causes additional expenditure and/or FACIT is obliged to provide additional services, FACIT is entitled – following prior notification – to demand additional remuneration.

2.4     Possible travel expenses outside of Munich will be charged separately, unless otherwise stated.

2.5    Our offers are valid for three months from the date of the offer.

3.    Nature and quality; liability for defects / defective performance

3.1    If and insofar as FACIT is obliged by the contract to produce a work or outcome as set out in Section 631 ff. German Civil Code, the following shall apply:

3.1.1   FACIT shall provide the Client with the work or outcome in accordance with its agreed nature and quality; the contractual nature/quality shall be exclusively assessed in accordance with the specific agreements concerning its features and characteristics that have been made in writing by the parties.

3.1.2   The unconditional acceptance of the work/outcome by the Client shall nullify any of his rights and claims with regard to defects that were already recognizable at the time of the acceptance. The assertion of claims with regard to defects that were not recognizable at the time of acceptance is excluded unless the Client notifies FACIT without delay – and in writing – of the defect after it has been discovered.

3.1.3   Whenever FACIT is notified of a defect, it is entitled to inspect the defective work/outcome; the Client shall provide FACIT with the necessary time and opportunity to do so. If a complaint about a defect that is made by the Client proves to be unjustified and the Client has recognized this prior to raising the complaint or has negligently not recognized it, the Client undertakes to reimburse FACIT for any loss or damage arising in connection with this.

3.1.4  FACIT shall at its own discretion remedy defects by eradicating them at no cost to the Client or alternatively by providing a non-defective work/outcome free of charge (collectively known as “subsequent performance”). The Client shall provide FACIT with the necessary and appropriate time and opportunity for this subsequent performance.

3.1.5   If the subsequent performance fails to materialize, is unacceptable to the Client, or FACIT has refused it in accordance with the statutory provisions, the Client may at its own discretion withdraw from the contract in accordance with the statutory provisions or reduce the agreed price and/or demand compensation or the reimbursement of its wasted expenditure as set out in Section 6. 2.

3.1.6   The period of limitation for the Client’s rights with regard to defects shall amount to 12 months, beginning at the point in time when the Client accepts the respective work/outcome. The statutory periods of limitation shall apply to claims for damages made by the Client for reasons other than defects in the work/outcome as well as the Client’s rights in the case of defects that have been maliciously concealed or wilfully caused.

4.    Prices and payment terms

4.1    The Client shall pay FACIT the price agreed in the contract for those deliverables and/or services that FACIT has provided in accordance with the contract.

4.2    Unless otherwise agreed in writing, FACIT shall invoice the Client for travel expenses in accordance with actual expenditure.

4.3    Invoices from FACIT are due for payment (net) by the Client within 10 days of the date of the invoice.

4.4    All prices are subject to sales tax / VAT at the statutory rate applicable on the day when the invoice is submitted.

4.5    If – once the contract has been concluded – FACIT becomes aware of a risk of defective performance on the part of the Client, FACIT is entitled to provide outstanding deliverables and/or services only if advance payment is made or adequate guarantees are provided. If the advance payments or guarantees have still not been provided after an appropriate period of grace has expired, FACIT may either wholly or partially withdraw from individual contracts or all those contracts that are affected. The assertion of further rights by FACIT remains unaffected.

4.6    If the Client delays payment, FACIT is entitled to demand interest on arrears amounting to eight percentage points above the annual base interest rate that is applicable in each case. The assertion of additional damages for arrears by FACIT remains unaffected.

4.7   The Client may only declare his intention to offset claims made by FACIT if his counterclaim is undisputed or has been established by a court of law.

4.8    The Client may only assert a right to refuse performance or a right of retention insofar as his counterclaim is based on the same contractual relationship and is undisputed or established by a court of law.

5.    Delivery dates and deadlines

5.1    Delivery dates and deadlines shall only be binding if they were agreed in the contract as being binding and the Client has promptly made available to FACIT all the information and documents required to provide the deliverable/service and has duly made any partial payments that may have been agreed. Delivery deadlines begin with the date on which the order is confirmed. If any changes are subsequently agreed as set out in Section 2.3, the delivery dates/deadlines shall be correspondingly postponed/extended. FACIT shall notify the Client of any such postponement/extension.

5.2  Events that are unforeseeable, unavoidable and beyond the sphere of influence of FACIT and for which FACIT is not responsible (such as force majeure, war, natural disasters or industrial disputes) shall release FACIT for their duration from its duty of timely delivery / service provision. Dates/deadlines for delivery / service provision shall be postponed/extended in accordance with the duration of this interruption; the Client shall be appropriately advised of the occurrence of this interruption. Either party is entitled to withdraw from the contract if the end of the interruption cannot be foreseen or lasts for longer than two months.

5.3  If the deliverables/services provided by FACIT are delayed, the Client is only entitled to withdraw if FACIT is responsible for this delay and an appropriate deadline for provision of the deliverable/service that has been set by the Client has expired with no result.

6.    Liability

6.1    FACIT undertakes to perform its services whilst adhering to the generally recognized regulations and methodology pertaining to corporate consulting and market and social research. Nevertheless, FACIT does not guarantee that the consulting services and research results it has been commissioned to deliver can be commercially exploited by the Client in a specific manner. FACIT can only support the Client’s decision with its deliverables/services; the Client shall make the decisions himself.

6.2    Limitation of liability and mitigation of damages

6.2.1   The contractual and statutory liability of FACIT in relation to compensation for minor negligence – regardless of the legal basis – shall be limited as follows:

(a)   If essential obligations arising from the contract are infringed, the amount of FACIT’s liability shall be limited to foreseeable damages that are typical of contracts.

(b)   FACIT shall neither be liable for the infringement of non-essential obligations arising from the contract nor as a result of minor negligence.

6.2.2   The limitations to liability as set out in 6.2.1 shall not apply in cases of compulsory statutory liability or culpable physical injury. Furthermore, they shall not apply if and insofar as FACIT has provided a guarantee.

6.2.3  Points 6.2.1 and 6.2.2 shall correspondingly apply to FACIT’s liability for wasted expenditure. The Client is obliged to take appropriate measures to prevent and reduce any loss or damages.

6.1    FACIT undertakes to perform its services whilst adhering to the generally recognized regulations and methodology pertaining to corporate consulting and market and social research. Nevertheless, FACIT does not guarantee that the consulting services and research results it has been commissioned to deliver can be commercially exploited by the Client in a specific manner.

6.2    Limitation of liability and mitigation of damages

6.2.1   The contractual and statutory liability of FACIT in relation to compensation for minor negligence – regardless of the legal basis – shall be limited as follows:

(a)   If essential obligations arising from the contract are infringed, the amount of FACIT’s liability shall be limited to foreseeable damages that are typical of contracts.

(b)   FACIT shall neither be liable for the infringement of non-essential obligations arising from the contract nor as a result of minor negligence.

6.2.2   The limitations to liability as set out in 6.2.1 shall not apply in cases of compulsory statutory liability or culpable physical injury. Furthermore, they shall not apply if and insofar as FACIT has provided a guarantee.

7. Client's obligation to cooperate

7.1    The Client undertakes to make available to FACIT all the information necessary to provide the deliverables and services. Even if not requested, he further undertakes to advise FACIT of any circumstances that might be significant in relation to the provision of deliverables and services by FACIT and where the Client realizes that FACIT is unaware of them.

7.2   If the Client delays acceptance or infringes other obligations to cooperate, FACIT shall without prejudice to its other rights be entitled to withdraw from the contract in accordance with the statutory provisions.

8.    Confidentiality

8.1    Even once the contract has been completed, the parties undertake to treat in strict confidence any information and documents received from the respective other party in the context of carrying out the contract (including tender documents submitted by FACIT); neither shall this information / these documents be made accessible to any third party, and this information / these documents must exclusively be used to carry out the contract. Nevertheless, the parties are entitled to pass this information and these documents to their colleagues/employees if and insofar as the latter must be aware of it/them in order to carry out the contract. However, any such passing to colleagues/employees presupposes that the latter undertake to duly comply with the duty of confidentiality as set out in this Section 8, and indeed – within the context of what is legally possible –  beyond the termination of the legal relationship on whose basis the respective colleague/employee is bound to the receiving party.

8.2    The duty of confidentiality as set out in 8.1 does not apply to information and documents

8.2.1  which at the time when they were accepted by the receiving party were already in the public domain or were subsequently made public by the receiving party without infringing the duty of confidentiality as set out in 8.1 or

8.2.2   which the receiving party was fully aware of at the time of disclosure or

8.2.3   which regardless of the confidential information and/or documents were developed by the receiving party itself or

8.2.4   which the receiving party acquired lawfully and in full from a different source which is entitled to disclose this information to third parties or

8.2.5  which is released from such restrictions in accordance with written authorization from the disclosing party or

8.2.6  which must be disclosed by the receiving party by law or in accordance with the decision of an administrative body, provided that the receiving party promptly notifies the disclosing party of a disclosure of this kind and in doing so ensures to the best of its ability to only disclose as little information as is required.

9.         Copyrights; rights to the research results; storage of survey data

9.1       Unless otherwise agreed in writing, FACIT is the sole owner of all the rights to the concepts, proposals, methods, procedures and procedural techniques, insights, data, questionnaires, know-how, presentations, illustrations and other results that have been used, gathered, obtained and created in advance of and in the context of the contract, together with their material representations (e.g. documents, electronic data carriers). The only exceptions to this are the concepts, proposals, methods, procedures and procedural techniques, insights, data, questionnaires, know-how, presentations, illustrations and other results (together with their material representations) which the Client notifies to FACIT in writing / submits to FACIT before the contract is carried out and which are owned by the Client.

9.2       Subject to the provisions in Section 9.3 and Section 10, FACIT grants the Client an exclusive usage right to the research results that have been submitted to the Client, including their material representations. The Client is not entitled to wholly or partly copy, edit, or alter the research results or to transfer the rights to them to any third party unless this is the express object of the agreed deliverable or service. If the Client wholly or partly publishes the research results or communicates them to the wider public, he must in a suitable and appropriate manner indicate that the research results have been produced as a result of FACIT’s services, and only after FACIT has approved the actual text that is to be published.

9.3       The Client is forbidden to use the research results (including their material representations) prior to legal proceedings (e.g. court proceedings, arbitration proceedings, official/administrative proceedings) without the previous written consent of FACIT – subject to legal/administrative regulations or legal decisions that may take precedence.

9.4       Notwithstanding Section 9.2, FACIT only grants the Client a non-exclusive usage right to research results (including their material representations) which have been submitted to the Client and which are the outcome of syndicated studies. Section 9.2 also applies to research results (including their material representations) which are the outcome of syndicated studies.

9.5       The Client shall indemnify FACIT against any claims by third parties which are asserted against FACIT because the Client has used the research results submitted to the Client by FACIT in a wilfully or negligently unlawful manner, and in particular by means of unlawful and/or false advertising.

9.6       Unless otherwise agreed in writing, FACIT will only submit the research results to the Client, and not the methods, procedures, insights, data and questionnaires which have been used, gathered, obtained and created. FACIT will store the data, questionnaires and research results together with their material representations for a period of at least two years following the submission of the research results.

10.    Self-promotion and utilization by FACIT

9.1   FACIT shall be entitled to utilize at no cost to itself and to the customary extent the contractual relationship with the Client for the purpose of self-promotion on the part of FACIT so long as the Client does not refuse this in writing in individual cases.

9.2    FACIT shall moreover be entitled to utilize for internal purposes the data, questionnaires and research results that have been gathered, obtained and created in the context of a contract, together with their various manifestations and publish them in anonymous form.

11.       Product tests

1.         The Client shall indemnify FACIT against any claims made by third parties against FACIT or employees of FACIT which result from loss or damage caused by the product that is to be tested on the Client’s behalf.

2.         The Client is responsible for ensuring that all the necessary chemical, medical, pharmaceutical or other technical checks/examinations/analyses relating to the product that is to be tested have been carried out. He assumes responsibility for ensuring that the product that is to be tested is suitable for the test, and that if a check/examination/analysis as set out in the previous sentence  was necessary and has taken place that there was no indication that the product can cause any kind of loss or damage. The Client is responsible for ensuring that any information that is prescribed by law or regulation and/or that is necessary for the product to be used is made available to FACIT so that the latter can pass this on to the test participants.

3.         The provisions of the Product Liability Act shall apply in all other respects.

12.  Final provisions

10.1    Any changes and additions to the contract and/or these Conditions must be in writing if they are to be effective. This also applies to any amendment to this requirement that such changes or additions should be in writing.

10.2    Oral or written secondary agreements shall only be binding for FACIT once they have been confirmed in writing.

10.3    If individual provisions of the contract and/or these Conditions become wholly or partly void or invalid, this does not affect the validity of the remaining provisions.

10.4    The sole place of jurisdiction for any disputes arising from or in the context of the contractual relationship between the parties shall be the registered office of FACIT.

10.5    These Conditions together with the contractual relationship between the parties are subject to the law of the Federal Republic of Germany.