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, as well as for statistical analyses

– hereinafter referred to as “FACIT” –

 

§1    Scope of applicability

The following General Terms and Conditions of Business (“Terms and Conditions”) apply exclusively for all deliveries and services in the areas of consulting, market, media and social research as well as for statistical analyses of Facit Research GmbH & Co. KG and Facit Digital GmbH (“FACIT”). The Client acknowledges them by placing an order or accepting the service. The applicability of differing or supplementary terms and conditions of business of the Client is excluded, even if FACIT does not expressly object to them.

 

§2    Concluding a contract; contracting third parties; requests for changes

1.    Unless otherwise agreed in writing, offers of FACIT are subject to change. A contract is only concluded upon written order confirmation by FACIT and shall be based exclusively on the content of the order confirmation and these Terms and Conditions. Verbal agreements or promises require written confirmation by employees authorised to represent FACIT to be effective.

2.    FACIT is entitled to also commission third parties as subcontractors to fulfil its obligations arising from the contract.

3.    If, after the contract has been concluded, the Client requests a change to a service specification compared to the original specifications (e.g. a Client briefing), this shall require a corresponding written agreement between the parties. If this change results in additional costs for FACIT and/or additional services must be provided by FACIT, FACIT shall be entitled to demand additional remuneration after prior notice.

 

§3    Quality, liability for defects / defective performance

1.    If and insofar as FACIT must produce a work in accordance with Section 631 et seq. of the German Civil Code (BGB) under the contract, the following applies:

1.1.    FACIT will provide the work to the Client according to the agreed quality/characteristics. The contractually agreed quality/characteristics shall be determined exclusively by the specific agreements made in writing between the parties regarding the features and characteristics of the work.

1.2.    The Client’s rights due to defects are conditional on the Client informing FACIT in writing of any obvious defects within two weeks of receiving the respective inspection report and the inspection results. In the case of non-obvious defects, this period shall apply from the time when the Client discovers the respective defect.

1.3.    For each complaint concerning defects, FACIT shall have the right to inspect the work being the subject of the complaint. The Client will grant FACIT the necessary time and opportunity to do so. If a complaint concerning defects by the Client proves to be unjustified and the Client recognised this before submitting the complaint or failed to recognise it due to negligence, the Client shall compensate FACIT for all losses incurred in this connection.

1.4.    FACIT will remedy defects, according to its choice, either by eliminating the defect free of charge for the Client or, alternatively, by delivering a defect-free work free of charge (jointly referred to as “subsequent performance”). The Client shall grant FACIT the necessary time and opportunity for subsequent performance.

1.5.    If the subsequent performance fails or is unreasonable for the Client or if FACIT refuses it in accordance with the statutory provisions, the Client may, according to its choice and in accordance with the statutory provisions, withdraw from the contract or reduce the agreed price and/or demand compensation for losses or reimbursement for its futile expenses in accordance with § 6 clause 2.

1.6.    The statutory limitation periods apply to the Client’s compensation claims for losses based on reasons other than defects in the work and with regard to the Client’s rights in the event of fraudulently concealed or intentionally caused defects.

2.    If and insofar as FACIT is obliged under the contract to provide services in accordance with Section 611 et seq. BGB, the following applies:

In the event of malperformance by FACIT, the Client shall be entitled to its statutory claims.

 

§4    Prices and payment terms

1.    The Client shall pay the price agreed in the contract for the deliveries and/or services that FACIT is obliged to provide under the contract.

2.    Unless otherwise agreed in writing, FACIT will invoice the Client for travel costs based on actual expenses.

3.    FACIT’s invoices shall be due for payment by the Client net within ten days from the invoice date.

4.    Payments must be made free of charge and expenses into FACIT’s bank account as specified on the invoice.

5.    All prices are subject to the addition of VAT at the statutory rate as of the invoice date.

6.    If, after the conclusion of the contract, FACIT becomes aware of a risk of the Client being unable to make payment, it shall be entitled to carry out any outstanding deliveries and/or services only against advance payment or the provision of security. If the advance payments or security are not paid/provided even after the lapse of a reasonable additional time limit, FACIT will be able to withdraw from individual or all affected contracts in whole or in part. FACIT shall remain free to assert further rights.

7.    If the Client defaults on payment, FACIT shall be entitled to demand default interest in the amount of nine percentage points above the current base interest rate per annum. FACIT’s right to assert further compensation for losses due to default remains unaffected.

8.    The Client may only declare offsetting against claims of FACIT if its counterclaim is undisputed or has been established with legally binding effect.

9.  The Client may only assert a right to refuse performance or a right of retention insofar as its counterclaim is based on the same contractual relationship and is undisputed and has been established with legally binding effect.

 

§5    Delivery periods and dates

1.    Delivery periods and deadlines are only binding if they have been agreed as binding in the contract and the Client has provided FACIT with all information and documents required to carry out the delivery or service in a timely manner and has paid any agreed advance payments as agreed. Delivery periods begin on the date of the order confirmation. In the event of subsequently agreed changes in accordance with § 2 clause 3, the delivery periods and delivery dates shall be extended or postponed accordingly. FACIT will inform the Client of any such extension or postponement.

2.    Unforeseeable, unavoidable events that are outside FACIT’s sphere of influence and for which FACIT is not responsible, such as events of force majeure, war, natural disasters or industrial disputes, shall release FACIT from the obligation to deliver or provide the service on time for the duration of the event in question. Delivery and service periods or dates shall be extended or postponed by the duration of the disruption. The Client will be informed of the occurrence of the disruption in an appropriate manner. If the end of the disruption is unforeseeable or if it lasts longer than two months, each party shall be entitled to withdraw from the contract.

3.    If FACIT’s deliveries or services are delayed, the Client shall only be entitled to withdraw from the contract if FACIT is responsible for the delay and a reasonable deadline set by the Client for delivery or service provision has lapsed without success.

 

§6    Liability

1.    FACIT undertakes to carry out its deliveries and/or services in accordance with scientific methods of management consulting and in compliance with the generally accepted professional principles and codes of conduct of market and social research. However, FACIT does not guarantee that the consulting services and investigation results to be provided by it can be commercially exploited by the Client in a specific way. With its deliveries or services, FACIT merely supports the Client in making its decisions. The Client makes the decisions itself.

2.    Limitation of liability and mitigation of losses

2.1.    FACIT’s contractual and statutory liability for compensation for losses due to minor negligence, regardless of the legal basis, is limited as follows:

(a) In the event of a breach of material obligations arising from the contractual relationship, FACIT’s liability shall be limited to the amount of losses that are typical for the contract and foreseeable;

(b) Otherwise, FACIT shall not be liable for breaches of non-material obligations arising from the contractual relationship or for minor negligence.

2.2.    The liability limitations pursuant to § 6 clause 2.1 do not apply in cases of mandatory statutory liability or in the event of culpably caused physical injury. Furthermore, they do not apply if and insofar as FACIT has provided a guarantee.

2.3. § 6 clauses 2.1 and 2.2 apply accordingly to FACIT’s liability for futile expenses.

2.4.    The Client must take appropriate measures to prevent and reduce losses.

 

§7    The Client’s obligation to cooperate

1.    The Client must provide FACIT with all information necessary to provide the deliveries and services. It must also inform FACIT, even without being asked to do so, of any circumstances that may be significant for the provision of the deliveries and services by FACIT and which the Client can recognise as being unknown to FACIT.

2.    If the Client defaults on acceptance or violates other obligations to cooperate, FACIT shall be entitled to withdraw from the contract in accordance with the statutory provisions, without prejudice to its other rights.

 

§8    Confidentiality

1.    Even after the contract has been fully executed, the parties shall treat all information and documents received from the other party in connection with the performance of the contract (including FACIT’s offer documents) as strictly confidential, refrain from making them accessible to third parties and use them exclusively for the performance of the contract. The parties are, however, entitled to pass on that information and those documents to their employees if and insofar as those employees need to be aware of them in order to perform the contract. However, a precondition for such disclosure to employees is that the employees be obligated to observe the duty of confidentiality in accordance with this § 8, including, within the limits of legal possibilities, after the end of the legal relationship on the basis of which the respective employee is bound to the recipient party.

2.    The duty of confidentiality under § 8 clause 1 does not apply to information and documents which:

2.1. were already publicly known at the time of receipt by the recipient party or subsequently became publicly known without any violation of the duty of confidentiality under § 8 clause 1 by the recipient party; or

2.2. were fully known to the recipient party at the time of disclosure to it; or

2.3. were developed by the recipient party itself independently of the confidential information and/or documents; or

2.4. the recipient party lawfully obtained in an unrestricted form from another source which is authorised to disclose that information to third parties; or

2.5. is exempted from such restrictions based on written consent of the disclosing party; or

2.6. must be disclosed by the recipient party by law or based on a decision issued by an administrative authority, provided that the recipient party informs the disclosing party of such disclosure immediately and uses its best efforts to ensure that only as much information as is necessary is disclosed.

3. However, Facit shall be entitled to use the Client’s confidential information for the purposes of this contract without the Client’s consent and to pass it on to third parties to that extent. However, that right is limited to information which is necessary for daily coordination with marketers and other third parties who must come into contact with that information for the purposes of the fulfilment of this contract. That right does not apply for information such as the Client’s long-term strategic planning or other information which is not directly related to the technical handling of the campaign for the Client.

 

§9    Copyrights, rights to investigation results, storage of survey data        

1.    Unless otherwise agreed in writing, FACIT is the exclusive owner of all rights to the concepts, proposals, methods, procedures and procedural techniques, findings, data, questionnaires, know-how, presentations, representations and other results as well as their embodiments (e.g. documents, electronic data carriers) used, collected, obtained and created in advance of and within the framework of the contract. The only exceptions to this are those concepts, proposals, methods, procedures and procedural techniques, findings, data, questionnaires, know-how, presentations, representations and other results, as well as their embodiments, of which the Client notifies FACIT in writing or hands over to it before the order is fulfilled and which are the Client’s property.

2.    FACIT grants the Client – subject to the provisions of § 9 clause 3 and § 10 – an exclusive right of use to the investigation results handed over to the Client, including their embodiments. FACIT is not liable for investigation results that the Client has copied, edited, modified or transferred to third parties in part or in whole in such a way that losses are incurred by the Client or third parties. If the Client publishes the investigation results (in whole or in part) or communicates them to the public, it must indicate in an appropriate and reasonable manner that the investigation results were obtained through FACIT’s services, after FACIT has approved the specific text to be published.

3.    The Client is prohibited from using the results of investigations, including their embodiments, in advance of formal legal proceedings (e.g. court proceedings, arbitration proceedings, official proceedings) without the prior written consent of FACIT – subject to overriding statutory / administrative regulations or court decisions.

4.    In deviation from § 9 clause 2, FACIT grants the Client merely a non-exclusive right of use to the results of investigations provided to the Client, including their embodiments, that result from joint studies (syndicated studies). § 9 clause 2 also applies to results of investigations, including their embodiments, that result from joint studies (syndicated studies).

5.    The Client shall indemnify FACIT against all claims asserted by third parties against FACIT due to the Client having intentionally or negligently used the results of investigations provided to the Client by FACIT unlawfully, in particular through unlawful and/or false advertising.

6.    Unless otherwise agreed in writing, FACIT shall provide the Client with the investigation results only and not the previously applied, collected, obtained and created methods, procedures, findings, data and questionnaires. Any materials, procedures, findings, data and questionnaires that have arisen in connection with the Client’s investigation results will be provided to the Client. FACIT will retain the data, questionnaires and investigation results as well as their embodiments for a period of at least two years after the investigation results have been handed over.

 

§10    Self-promotion and use by FACIT

1.    FACIT is entitled to utilise the contractual relationship with the Client to the usual extent for it’s own advertising, free of charge, unless the Client objects to this in writing in an individual case.

2.    FACIT is also entitled to use the data, questionnaires and investigation results collected, obtained and created within the framework of a contract and their embodiments for internal purposes, as well as to publish them in an anonymised form.

 

§11    Product tests

1.    The Client shall indemnify FACIT against all claims asserted by third parties against FACIT or FACIT employees due to losses caused by the product to be tested on behalf of the Client.

2.    The Client is responsible for ensuring that all necessary chemical, medical, pharmaceutical or other technical tests / examinations / analyses of the product to be tested have been carried out. If such tests have not been carried out, FACIT’s service refers to the status of the product at the time of the test (e.g. prototypes). The Client shall be responsible as to whether the product to be tested is suitable for the test and, if a test / examination / analysis was necessary and took place in accordance with the preceding sentence, as well as for the absence of any identified indications that the product could cause any losses. The Client shall be responsible for ensuring that all information required by law or regulations and/or necessary for the use of the product is made available to FACIT so that it can be passed on to the test participants.

3.    In all other respects, the provisions of the German Product Liability Act (Produkthaftungsgesetz) apply.

 

§12    Final provisions

1.    Any amendments or additions to the contract and / or these Terms and Conditions must be in writing to be effective. This also applies to any change of this written form requirement.

2.    Verbal or written ancillary agreements shall only be binding for FACIT after they have been confirmed in writing.

3.    Should individual provisions of the contract and/or these Terms and Conditions be wholly or partially ineffective or void, the effectiveness of the other provisions shall remain unaffected.

4.    The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship between the parties is FACIT’s registered office.

5.    These Terms and Conditions and the contractual relationship between the parties are subject to the laws of the Federal Republic of Germany.

 

Version: September 2024