General Terms and Conditions of Business of LINK Marketing Services AG (in the following “LINK”)
based on the general Terms and Conditions of business of the asms – Association of Swiss Marketing and Social Research Workers
Preamble The intention with these General Terms and Conditions of Business (hereinafter called “GTC”) is to achieve a fair balance of interests between the client and the agency in market and social research. Editorship of the present GTC is therefore under the Board of the asms – Association of Swiss Marketing and Social Research Workers, comprised equally of clients and agencies.
1 Introduction ¹LINK Marketing Services AG – in the following called “the institute” – carries out its work in the context of advisory services conforming with the recognised practice of the industry. ²The recognised practice of the industry ensues from the codes and guidelines relating to this of ESOMAR (World Association of Research Professionals, Vondelstraat 172, 1054 GV Amsterdam, The Netherlands) and the “Declaration on the ESOMAR Code for the Practice of Market and Social Research for the Territory of Switzerland” of the asms – Association of Swiss Marketing and Social Researcher Workers, which has its headquarters in Cham. They are binding for the institute.
2 Quotations ¹The institute submits a quotation to the interested party principally in the form of a proposal for a survey based on detailed instructions from the Client. The proposal is a framework proposal and includes terms of reference, structure of the survey (methodical procedure, sample survey, length of interview) and evaluation criteria as well as fee demanded, time requirement for the survey and the manner of reporting. ²The expenses of work in connection with the preparation of quotations are only to be reimbursed if the interested party has been informed about this. ³A quotation remains valid for 60 days from the date of the quotation. ⁴It shall be assumed that instructions have been given for consultation if the institute is also to draw up the briefing with the interested party, which, unless otherwise expressly agreed, shall be charged separately in addition to the fee for the quotation and independently of the extra charge for the main contract. The interested party is to be informed of the costs in connection with advisory services prior to commencement of this work stage.
3 Services and fee ¹The institute shall inform the Client in advance, if
a) the contract is to be combined or syndicated with contracts of other clients. The identity of the other client need not be made known. b) a significant part of the services is to be performed by a sub-contractor or an independent consultant. The institute may assign the contract if nothing has been agreed to the contrary. The identity of the sub-contractor and consultant shall be made known to the Client on request.
²The fee stated in the proposal includes in principle all defined services to be rendered by the institute in connection with performance of the contract, including the services of sub-contractors and consultants. ³Addition to services ordered by the Client, such as additional presentations, provision of further copies of the report, additional translation etc. shall be charged separately. The Client shall be made aware of the consequential costs. ⁴The institute may charge additional costs if the Client expresses a desire for amendments or additional items subsequently to signing the contract, if it offers to the Client the additional services in excess of the agreed fee within 5 working days, but in every case prior to performance of the services, and the Client shall not object in good time. The Client may cover the additional costs with a reduction in other services of the institute not performed until that time, unless verifiable damage shall result for the institute. ⁵The risk involved with an all-inclusive contract in making a proper quotation is borne by the institute. If individual elements of service have been quantified within the scope of an all-inclusive contract, that is, if the suppositions upon which the making of the quotation is based have been disclosed, the institute may only charge for additional expenditure on rendering these elements of service, if it proves that the additional expenditure was not foreseeable on issuing instructions despite applying the due care necessary and the Client had been immediately informed. ⁶If the Client shall cancel the contract, the Client shall pay to the institute the fee for the services performed in accordance with contract up to the date of cancellation and reimburse it for all ascertainable costs. The institute may demand an additional charge of 10% of the fee for the cancelled part of the contract in addition to its fee for services performed in accordance with contract, if cancellation shall be made at an inopportune moment and no fault shall be involved on the part of the institute in connection with the cancellation. Evidence of greater damage shall remain reserved. ⁷Postponement of a contract shall be treated as the equivalent of a cancellation if no new date for performance of services shall be fixed. The institute may on postponement separately charge for services and costs which arise on account of the postponement (e.g. services for change of arrangements, costs for the time booked with interviewers).
4 Rights of ownership and copyright Rights of ownership and copyright in the material (data storage media of every description, questionnaires, other written documentation etc.) arising on performing the contract and the data ensuing shall remain with the research institute. Copyright of the Client in documentation that it itself produces remains unaffected.
5 Data control and maintenance of secrecy
a) Basic principle Data relating to markets, opinions and social research shall only be passed to the Client in an anonymous form, unless the Client shall itself be an institute associated with the SWISS INTERVIEW® collective trade-mark (for foreign clients, namely a member of a corresponding organisation) or ESOMAR, or an official office which has undertaken in writing to observe the rules stipulated by SWISS INTERVIEW® and the statutory provisions relating to protection of data and persons. Those cases where the person providing information expressly requests disclosure of his/her identity or expressly consents to communication of his/her identity, shall form a further exception. This consent shall be obtained in both cases through express, duplicated inquiry in the questionnaire.
b) Syndicated Studies ¹Copyright in all information communicated to the Client and control over the data shall remain with the institute to the full extent. The Client shall receive the survey solely for use for its own purposes. It undertakes not to pass to a third party the results of research, reports etc. as well as the material upon which they are based, either in full or as an extract or otherwise in a form of usable information, unless otherwise agreed in writing. Persons or companies with which the Client shall be connected by way of significant interests, with which it has an agency relationship, or which require such particulars for fulfilling a contractual duty as against the Client, shall not be deemed to be third parties. The Client shall however undertake to impose contractually on such persons and companies a prohibition on communication of the information. ²If particular circumstances should require publication of the data ascertained by the institute to a third party, the institute shall at the request of the Client, if need be following consultation with recipients of the same information, decide in respect of consent to such communication to the third party. ³The Client shall be liable for observance of these provisions, as well as for their observance by persons and companies to which the Client has communicated the information. The Client shall owe the institute a contractual penalty in the event of breach, the amount of which the parties shall stipulate separately for each contract. The right to prevent further use of the data and claim to compensation shall not be excluded by reason of this.
c) Surveys ¹The Client may, with commissioned surveys, use the anonymous data and conclusions of the survey for further research projects, for archiving and publication in any form whatsoever. It may grant rights of exploitation in data and conclusions to third parties. The Client shall possess sole control over the data. The institute shall guaranty to the Client not to communicate further specific data and/or knowledge relating to the Client arising from conduct of the survey to a third party without its express permission. ²The institute may however continue to use general insights arising from the survey, for example, for standardising the form of questionnaires or formulating anonymous standard values from several surveys carried out for different clients. It shall ensure that a third party can not conclude the identity of the Client from the results of the survey and use of the know-how. ³The institute and the Client shall endeavour to ensure that the following additional information shall be publicised on first public release of surveys which are intended for publication in communications media:
name of the institute
method of enquiry
date of the survey
literal phrasing of the questions
definition of the basic generality
description of the selection process, as well as
the number of interviews.
⁴The separate terms of the “Guidelines for conduct of public opinion polls relating to voting and elections which are intended for publication prior to the ballot” affecting publication of the “methodical arrest warrant” by the institute itself, remains reserved.
6 Copy of data records The Client may with commissioned surveys demand an anonymous data record from the institute, against payment.
7 Inspection / anonymity The Client shall have the right to inspect the original survey documentation at the offices of the institute. The anonymity of persons supplying information may not however be jeopardised. If measures which shall become necessary to protect anonymity shall give rise to costs, these shall be borne by the Client to the extent that it has been informed about them in advance.
8 Duty to preserve records The institute shall preserve survey documentation in safe custody for one year and data carriers and other material for two years following delivery of the survey report. Longer periods shall require to be expressly agreed.
9 Confidentiality ¹The institute shall not make known the identity of the Client in connection with a certain commission. It shall treat in strict confidence all information received from the Client and use it solely for performance of the contract. Agreements to the contrary shall remain reserved. ²The results achieved shall only be available to the particular Client except when it shall be a question of “syndicated studies” or services which are obviously to be rendered for different clients. ³The institute may mention the name of the Client as a reference without referring to a certain commission.
10 Liability of the institute ¹The institute shall conduct the survey (collection, compilation, evaluation and final preparation of data) with the degree of care necessary according to the recognised rules of market and social research. The institute shall exercise its discretion according to its better judgement, if the issue of instructions shall leave scope for discretion open. Fault in conduct of the survey shall only be present if the institute shall culpably breach the duty of care to which is subject. ²The institute shall undertake to define the structure of the survey and the information thereby collected according to the best of its knowledge and ability (“best practice”), so that it corresponds with the use declared in the instructions from the Client. Likewise, production of the survey shall be made according to the “best practice” rules applicable for market research. Liability for consequential or indirect damage, as in particular for loss of profits, loss of data or loss of earnings, shall in every case be excluded. ³The duty of the market research institute to accept liability for damage for which it is responsible shall be limited in amount to the total amount of the agreed fee for the particular individual commission. ⁴Complaints shall be directed to the institute in writing within 60 days following receipt of the information. ⁵The institute shall not accept liability for faults which may be ascribed to an evaluation program, if such evaluation programs have been made available by the Client. ⁶The institute shall not be liable for the consequences of delayed delivery or loss, or damage to test material, to the extent that the delay or loss, or damage is based on circumstances which lie outside the operational area of the market research institute, or shall not have been culpably caused by the institute, or be the result of natural disasters and other events of force majeure or official action or industrial disputes.
11 Liability of the Client The Client shall accept liability independently of blame for all direct and indirect damage to the institute or third parties arising from use of the test materials made available by it.
12 Delivery of account The agreed fees serve to finance the particular research project. Unless otherwise stated, invoicing will be as follows: 50% on placement of order, 50% on delivery of results.
Payment within 30 days.
13 Exclusiveness ¹The market research institute cannot guaranty exclusiveness for certain fields of products, the subject matter of enquiry or survey methods, unless it shall be expressly agreed. The duration of exclusiveness and any fee to be charged additionally shall be stipulated, to the extent that this shall be agreed. ²If an institute shall receive a request for a survey which the Client wishes to publicise to a broad section of the public or to a closely defined target group (for example, to acquire customers) and it shall already be currently working on such with another client together or on its own account, the institute shall where possible on request for a quotation, but at the latest on receipt of instructions in connection with this quotation: a) refuse, or b) notify the first client and request its consent and then similarly inform the interested parties in respect of the first, current project.
14 Termination of contractual relationship ¹Contracts which are entered into for an unspecified duration and include services to be performed periodically may be cancelled on notice not only be the Client but also the institute at any time by registered letter post in observance of a period of notice of three months, if not otherwise agreed. ²The instructions may be cancelled at any time with immediate effect if one party shall be in arrears with performance of its contractual duties, verifiably for four weeks.
15 Applicable law / place of jurisdiction The contract shall be subject to the law of Switzerland. The parties shall agree the place of registered office of the institute as the place of jurisdiction for all disputes. The institute shall however have the right to take legal proceedings against the Client at its proper place of jurisdiction.
16 Final statement The parties hereto hereby declare that the General Terms and Conditions of Business of LINK Marketing Services AG are a constituent part of this Contract. Individually agreed conditions shall take priority over the General Terms and Conditions in the event of inconsistencies. The Client hereby declares in particular to have taken notice of the clause relating to place of jurisdiction in section 15 and in the event of unauthorised communication of information from ‘Syndicated Studies’ according to sub-section 5 (b) the contractual penalty owed shall be fixed in the present case at CHF 20’000.-.