General terms & conditions
Article 1: Definitions
- In these terms and conditions ‘MarketResponse’ refers to MarketResponse Nederland B.V., which has its registered office in Leusden and/or all and any of the companies with which it has an official partnership.
- In these terms & conditions ‘The Client’ refers to the person or organization that uses services provided MarketResponse and/or wishes to do so.
- In these terms & conditions ‘Management’ refers to the members of the MarketResponse Management Team and its Board Members.
Article 2: Scope
- These general terms & conditions exclude the general terms & conditions of the client and apply to the legal relationship between MarketResponse and The Client, including yet not limited to all proposals issued by, agreements with and services provided by MarketResponse. These general terms and conditions shall also apply to all and any follow-up assignments.
- Any deviating terms and conditions shall only pertain to the agreement insofar as such terms or conditions have been accepted by MarketResponse expressly and in writing.
- MarketResponse shall at all times be entitled to amend these general terms and conditions. If the general terms and conditions are amended after The Client and MarketResponse entered into an agreement, MarketResponse shall inform The Client of such changes and provide The Client with a copy of the amended terms and conditions.
Article 3: Codes of Conduct
- All assignments shall be performed in compliance with the Code of Conduct for Market Research and Statistics (Gedragscode voor marktonderzoek en Statistiek). No assignment shall ever be in conflict with the express requirements of the international ICC/ESOMAR code of conduct.
Article 4: Proposals, quotations, information
- All proposals and further communications, including quotations, are free of engagement and do not bind MarketResponse in any way. The assignment shall only become binding once it has been confirmed by MarketResponse pursuant to Article 5.1.
- All proposals contain a specification of the costs, which is based on the design as described and/or the tasks as specified. The quotation is an estimate made with the greatest possible level of accuracy.
- If MarketResponse is to perform more work than specified in the confirmation with a given Assignment MarketResponse shall consult The Client as soon as possible. The additional tasks to be performed by MarketResponse shall be charged to The Client unless the necessity of the extra work shall lie in negligence on the part of MarketResponse or a grossly incorrect estimate on the part of MarketResponse or if MarketResponse in all fairness ought to have had foreseen the work. The level of remuneration of the extra work in such events shall be determined by parties by mutual consent.
- The proposals shall be based on the information provided by The Client in its request for proposal.
- The Client guarantees that the data and information provided to MarketResponse are correct, complete and up to date. Notwithstanding the further stipulations in the present document MarketResponse shall not be liable in case of non-compliance with the aforementioned guarantee.
- If an assignment is not granted after a research proposal was issued, the costs involved in developing the proposal and the related meetings and discussions may be charged to The Client.
- MarketResponse shall inform The Client beforehand of the hourly fees and the costs on the basis of which the research proposal shall be charged.
Article 5: Agreement
- An agreement between MarketResponse and The Client shall only take effect when MarketResponse has confirmed the assignment in writing.
- The content of the agreement shall cover no more that the work expressly stated in the proposal and/or the confirmation, the specification in the confirmation prevailing.
Article 6: Delivery time
- The times of commencement and/or completion of the work mentioned in the agreement are merely indications, as are the times mentioned when the results shall become available: all are merely an indication.
- Intermediate changes in the assignment or circumstances that are beyond the powers of MarketResponse may lead to the adjustment of such times as mentioned by MarketResponse. The Client shall always be informed of such an adjustment at the earliest possible convenience.
- Circumstances beyond the powers of MarketResponse include The Client being negligent in providing the data and information asked for by MarketResponse and/or required for the assignment. MarketResponse shall at all times be entitled to suspend its services until such time as it has received all the requested and/or required data.
Article 7: (Intellectual) property rights
- The intellectual property rights of all the documents provided to The Client (including electronic files) and software shall at all times fall to MarketResponse, unless The Client and MarketResponse have agreed differently in writing.
- The specification in sub 1 implies that only with MarketResponse’s written consent The Client shall be entitled to copy and distribute the content of the documents and software provided by MarketResponse. The Client, however, shall have the right to copy and distribute said documents and software exclusively for use within its own organization, which does not include any companies within the same group of companies that The Client belongs to. MarketResponse, however, shall have the right to impose limitations as to the number of copies that are allowed.
- All the items provided to The Client shall remain property of MarketResponse until The Client has paid all the amounts due in the scope of the assignment. The risk of damage to any such items shall be transferred onto The Client as soon as such items are provided to The Client. The Client is obliged to return any items on MarketResponse’s first request if The Client fails to make timely payment in view of such delivery.
Article 8: Prices
- All prices for assignments to be performed within the Netherlands shall be net, exclusive of VAT and including any additional costs. Prices for assignments in foreign countries are exclusive of travel and lodging expenses. The latter expenses shall be charged to The Client separately.
- MarketResponse is entitled to have the assignment performed by third parties. The costs entailed shall be specified in the quotation, unless agreed otherwise.
- The agreed prices are based on the going rates and fees on the day the quotation was issued. If and insofar as the factors that determine the costs change after the date of the quotation MarketResponse shall have the right to amend the agreed price accordingly. Such a price change shall be reported to The Client without delay. If The Client may appeal to title 5, part 3, book 3 of the Netherlands Civil Code, it has the right to terminate the agreement after the announced price change.
Article 9: Additional costs
- Any changes desired by The Client after an assignment was granted either in the question or the design of the study, e.g. as to the scope of the study or the question, the stages of the study, the method used or the analysis must be reported to MarketResponse in a timely fashion. MarketResponse shall have the right to charge to The Client any changes in the price that this might entail.
- The agreed price includes the delivery of the agreed number of copies of the report. The report shall be written in Dutch unless agreed otherwise. The costs of providing more copies of the report or of a report in a foreign language shall be charged to The Client separately.
Article 10: Payment
- Payment must be made within 14 days after the invoice date to a bank account to be specified by MarketResponse. Payments to another party than MarketResponse do not discharge The Client of its duty to pay. The value date specified by the bank shall be considered at the date of payment.
- If The Client fails to pay in time it shall be in default from the moment the payment term of the invoice amount has expired irrespective of the reason, and it shall owe statutory interest plus 2%.
- All costs pertaining to the collection of the invoices, both in and out of court, to a minimum of 15% of the invoiced amount shall be payable by The Client.
- In the event of non-timely payment by The Client MarketResponse will always be entitled to suspend the observance of its obligations until such time as The Client has paid the invoice or as per MarketResponse’s request has furnished security for the observance of its commitments resulting from the agreement.
- MarketResponse has the right to demand an advance payment from The Client before commencing the work.
- The Client does not have the right to suspend its obligations resulting from the agreement, nor to settle any payment with other payments to be made to MarketResponse.
- MarketResponse can never be obligated to refund or settle any amount unless this was confirmed by MarketResponse by letter.
- The administration of MarketResponse shall be the determining factor in establishing the work as performed and the level of the amounts charged. If The Client may appeal to title 5, part 2, book 6 of the Netherlands Civil Code it has the right to furnish proof of the contrary.
Article 11: Force Majeure
- If MarketResponse through an act of God or other extraordinary circumstances, e.g. strikes, slow-downs, technical difficulties in the telephone installation or computers, copying capacity, errors in information provided, non-delivery or non-timely delivery by third parties and so on is unable to perform its obligations pursuant to the agreement, it has the right to terminate the agreement either entirely or in part or, if performance is possible after all, to perform its commitments within a reasonable term.
Article 12: Term and Termination
1. The term of the agreement shall be specified in it and may be either indefinite or for a definite period.
2. A separate assignment for which no term has been defined shall end at the time of its completion.
- An agreement with a definite term shall end at the end of said term, unless the term is extended in writing.
4. The Client does not have the right to cancel an agreement with a definite term before the end of such term, unless agreed otherwise by letter.
5. MarketResponse has the right to cancel an agreement with a definite term without being liable to pay damages, with due observance of a reasonable term of notice, unless agreed otherwise by letter. Said term of notice, however, will never be longer than 1 (one) month.
- If either party does not wish to extend a contract with a definite term, it shall inform the other party by letter before the end of said term, with due observance of a reasonable term of notice. Said term of notice, however, will never be longer than 3 (three) months.
- If a contract with a definite period is extended by letter or if neither party has informed the other party that it does wish to extend the contract pursuant to sub 6, and if MarketResponse with the apparent consent of The Client continues to provide services, the contract is considered to be tacitly renewed for an indefinite period.
- The agreement for a definite period can be cancelled by either party with due observance of a reasonable term of notice, which term shall never be longer than 3 (three) months.
- Parties have the right to cancel the agreement without legal intervention and without serving notice of default if:
a. the other party has applied for bankruptcy or is declared bankrupt;
b. the other party has applied for a moratorium of payments or has been granted a moratorium of payments;
c. the business of the other party is discontinued other than in view of a restructuring of the company.
10. MarketResponse has the right to suspend the contract or to cancel it either entirely or in part without legal intervention and without having to serve a notice of default if:
a. The Client fails to perform its contractual duties, without MarketResponse having to serve notice of default;
b. MarketResponse can present a likely case that non-compliance on the part of The Client is imminent, as regards the contract;
c. the control of the company of The Client changes either entirely or in part;
d. MarketResponse receives a claim from a third party as meant in sub 14.8;
e. MarketResponse feels that The Client is insufficiently solvent to be able to meet current and/or future obligations resulting from the contract;
- The Client loses or threatens to lose the free disposal of its assets.
11. After termination of the contract all the work already performed by MarketResponse shall not become subject of any obligations to undo and all amounts due may be claimed immediately from The Client.
12. Termination of the contract does not end the continuing obligations of The Client.
Article 13: Complaints
- Complaints made during the term of the assignment shall only be handled by MarketResponse if and insofar as MarketResponse has been informed of these without delay and in writing. Any delay in the performance of the assignment as a result of a complaint shall be charged to The Client.
- Complaints regarding invoices must be made in writing and ultimately on the due date. After this term has expired The Client is considered to have accepted the invoice.
Article 14: Liability
- Upon entering the contract MarketResponse only commits to performing to the best of its ability and not to guarantee a certain result. MarketResponse cannot guarantee that its deliveries are correct, complete and/or up to date. In all of its work, however, MarketResponse will act as a good commissionee ought to.
- MarketResponse shall only ever be in default after it has received a written notice of default from The Client in which the shortcoming is specified in detail and after MarketResponse – if performance of the contract terms is still possible – is granted a reasonable term, which should be at least two week, to meet the contract stipulations after all and the shortcoming resolved within that term. MarketResponse has the right to determine whether the shortcoming has been explained in sufficient detail.
- All claims must be filed with MarketResponse in writing within four months, or, if the client may rely on title 5, section 3, book 6 of the Netherlands Civil Code, within one year after the merits of the claim arose.
- MarketResponse shall not be liable for any damages suffered by The Client unless these are the result of wilful misconduct or gross negligence of its directors
- MarketResponse shall not be liable for any damages suffered by The Client resulting from the acts of omissions of third party subcontractors.
- If (in spite of the provisions in the above subclauses) MarketResponse (can be held liable for damages suffered by The Client MarketResponse shall always only be liable for pure financial loss, defined as:
- reasonable costs to prevent damage that might be expected to result from the event to which MarketResponse’s liability pertains;
- reasonable costs for establishing the damage and liability;
- reasonable costs for obtaining extrajudicial settlement.
Any liability on the part of MarketResponse for any other form of damage is expressly ruled out, including but not limited to property damage, personal injury, death, indirect damages, immaterial damages and consequential losses, e.g. lost profits, business interruption, client claims, loss of data, loss of electronic files and loss of software.
- If MarketResponse is liable in any way, such liability shall always be limited to the amount that the client has paid for the project from which the damages have resulted of the amount that MarketResponse’s insurance policy covers per damage claim which amount will always be lower. Furthermore, MarketResponse’s liability for all damages suffered by The Client shall be limited to a total cumulative amount of EUR 1,000,000 (one million euro).
- The Client indemnifies MarketResponse against third-party claims, including but not limited to legal fees, arising with reference to its performance of the contract unless such claims can be attributed entirely to MarketResponse. The aforementioned claims also include yet are not limited to claims regarding product liability filed against MarketResponse pursuant to damages suffered by third-parties caused by defects to the products made available by The Client to MarketResponse, claims filed by individual MarketResponse has contracted to perform the contract that in view of said performance concern damages sustained on the premises of The Client and/or third parties, claims regarding the infringement of intellectual property rights as a result of the use of data and/or software made available to MarketResponse by The Client.
Article 15: Confidentiality
- Both parties have a duty to observe strict confidentiality regarding all information provided by arties to each other in view of the assignment. Parties shall only use such information for the purpose that it was made available for, and will only put it at the disposal of individuals within their respective organizations for whom knowledge of such information is required. In view of the aforementioned, parties shall take all the required precautions to safeguard each other’s interests.
- MarketResponse has the right to disclose to a third party that The Client has commissioned the assignment, provided it will inform The Client of such disclosure beforehand and The Client has subsequently consented.
- The duty of confidentiality for both parties shall continue to exist for 10 (ten) years after the contract or, as the case may be, the assignment has ended.
Article 16: General provisions
- In the event of a conflict between the general terms and conditions and the contract, the general terms and conditions shall prevail unless it was expressly agreed differently in writing.
- If at any time MarketResponse does not invoke one or more of the provisions set out in the contract this shall never imply that it waives the applicability of such provisions nor does it acknowledge by doing so that The Client may fail to perform one or more provisions from the contract.
- The nullity, voidableness or further unenforceability of a provision from the contract shall have no consequences for the legal effect of the other provision in the contract. If a provision in the contract is null, void or otherwise unenforceable, MarketResponse shall devise a new legally effective provision within the shortest possible term that covers MarketResponse’s original intentions as much as possible.
- The Client is not entitled to transfer its rights and obligations either entirely or in part, to delegate these, pledge these or encumber them in any other way, without MarketResponse’s prior and written consent.
- MarketResponse is entitled to transfer its rights and obligations either entirely or in part, to delegate these, pledge these or encumber them in any other way without The Client’s prior consent and The Client hereby consents to such acts in advance.
Article 17: Applicable law and disputes
- Contracts between MarketResponse and its Clients are exclusively subject to the Law of the Netherlands.
- Any disputes between MarketResponse and its Clients shall be submitted to the competent court within the Utrecht district with the exclusion of all others, unless statutory provisions dictate otherwise.
MarketResponse Nederland B.V.
3511 ED Utrecht
Tel. #31-33 – 33 033 33, Fax #31-33 – 33 033 30
Bank: ABN AMRO Amersfoort 184.108.40.2061
Trade Register Amersfoort 31030821.
These general terms and conditions were filed at the Office of the District Court at Utrecht.
These general terms and conditions may be consulted on MarketResponse’s website: www.marketresponsegroup.com
VAT # NL 804294811B01. Member of ESOMAR and MOA.