General Terms and Conditions of Business
BESTVISO GmbH (hereinafter, the “Contractor” or “BESTVISO GmbH”) is independently and autonomously active in the business of performing consulting services in accordance with the recognized rules and regulations of the profession of marketing researchers and social researchers. BESTVISO GmbH is retained for the purpose of conducting outsourced business-related market research, i.e., the assumption of all business-related market research activities as well as for business-related market research consulting for our clients (hereinafter “Client” or “Clients”) on the basis of (i) the consulting or managerial proposals made by us and (ii) these General Terms and Conditions of Business, as currently amended. Any general terms and conditions of business of the Client shall not become a component of the contractual agreement; any such are explicitly rejected. These General Terms and Conditions of Business do not apply to consumers, but instead only in commercial transactions.
2. Contract formation and services performed
2.1 The Contractor shall furnish a consulting or management proposal for the party interested, in which the following shall be set forth: the task formulation, the services to be performed to complete said task, the time required for the engagement, and the remuneration to be paid. The Client shall offer the Contractor the formation of a binding contractual agreement upon the basis of the Contractor’s consulting or management proposal and of these General Terms and Conditions of Business. The Client can make its offer to enter into a contractual agreement in writing, over the telephone, via telefax, or electronically. The contractual agreement is formed upon the acceptance of the order by BESTVISO GmbH; for this purpose, no particular form shall be required. The Contractor shall inform the Client with confirmation of the order via entering into the contractual agreement.
2.2 Specifically, the performance to be rendered is the service content described by the Contractor in the Description of Services (Leistungsbeschreibung) of the consulting or management proposal. The scope of services designated in the consulting or management proposal can be expanded or restricted by the contracting parties. Any expansions or restrictions shall always require compliance with the written form as provided by German law (Schriftform). Remuneration shall then have to be adjusted for the new expense. The Contractor shall be able to modify the services on its own to a reasonable extent, if such modification(s) (i) are not effected in bad faith, (ii) are not substantial, and (iii) do not impair the overall character of the services. The Contractor shall have the right to engage vicarious agents for the purpose of rendering the services.
3. Client’s duty to cooperate
3.1 As prerequisite for the rendering of services by the Contractor set forth under (1) above, the Client shall always fulfill its duties to cooperate (cooperative duties) in a timely manner. If the Client is in default with a cooperative duty so that such default (i) makes the rendering of the stipulated services unreasonably more difficult for the Contractor or (ii) temporarily—in whole or in part—makes such impossible, then the Contractor shall have the right to postpone the fulfillment of its performances by an amount of time equivalent to the duration of the hindrance plus an appropriate run-up period.
3.2 The Client shall ensure that all documents requisite for performance of the Contractor’s work are presented to the Contractor in a complete and timely manner, that all information is provided to the Contractor, and that the Contractor is informed in a timely manner regarding all occurrences and circumstances that initially become known only during the performance of the Contractor’s work but are nonetheless necessary in order to perform the tasks assigned. Unless stipulated otherwise, there shall exist no duty of retention, duty of care, or duty of return with respect to the documents made available by the Client for the Contractor.
3.3 At the Contractor’s demand, the Client shall have to confirm to the Contractor, in writing, the correctness and completion of the documents submitted as well as its informational disclosures and oral declarations.
3.4 To the extent that the Contractor does not have the opportunity to obtain information or data relevant to the fulfillment of the order, information or data shall be procured from the Contractor by the Client in accordance with rules and regulations as provided by law, following prior agreement and the assumption of costs.
3.5 Insofar as required for the purpose of rendering services, the Contractor shall receive access to the Client’s business premises at the stipulated dates and times and shall be allowed to pose its own questions to employees concerning various topics.
4.1 The Contractor shall receive the remuneration stated for the services stipulated, plus the respective sales and value-added tax applicable by law. In the individual case, any applicable expenses for travel and lodging, plus the respective sales and value-added tax, shall be separately invoiced to the Client (travel via personal automobile: €0.50 per kilometer traveled; via train: first class; via airplane: in economy class).
4.2 Remuneration shall be due in the following manner: the as a rule, at month’s end, the Contractor shall submit an invoice to the Client for the services rendered after each performance of the contracted service. Remuneration shall be due within ten (10) days of the invoice date and is to be paid to the commercial giro account as designated by BESTVISO GmbH. Insofar as payment has not been tendered, the Client shall be deemed in default of payment without further notice from the Contractor. In the event of default of payment, the Contractor shall have the right to demand default interest in the statutory amount commencing from the day of the default until the day back payment has been made. In the event of non-payment, the Contractor shall have the right to refuse to render any further services until the due payment is effected (defense of non-performance of contract).
4.3 Following a past due reminder notice and the setting of a notice period for payment, the Contractor can withdraw from the contractual agreement and demand compensatory damages for non-performance (§ 323 of the Bürgerliches Gesetzbuch (the German Civil Code, the “BGB”)). As long as BESTVISO GmbH, as Contractor, has not received the remuneration due in full, the Client shall be unable to assert any claims and rights on account of any deficiencies.
5. Warranty, acceptance, subsequent improvement, limitation of actions
5.1 The Contractor shall advise the Client to the best of the Contractor’s knowledge and expertise, and shall render its services with the prudence and care customary in the industry. The Contractor shall not assume any warranty for any particular economic success desired by the Client of analyses, measures counseled, recommendations, or forecasts. Any information or data supplied by third parties or by the Client itself shall be reviewed solely for plausibility, but not correctness.
5.2 Upon the Contractor’s written notice, the Client shall have to accept the market research reports and services rendered within three (3) days. If acceptance is not expressly effected, then any texts delivered shall be deemed as accepted by no later than two (2) weeks after arrival at the Client. Upon commencement of the notice period, the Contractor shall be obligated to notify the Client in particular and in writing of the significance of the Client’s remaining silent. Acceptance cannot be refused on account of non-material deficiencies (e.g., spelling errors).
5.3 If the services give rise to a justifiable complaint, then the Contractor shall receive the opportunity to render subsequent improvement within a reasonable notice period to be set by the Client. The Contractor can elect between remediation of the deficiency and redelivery. If the subsequent improvement at no charge should fail despite two (2) attempts, then the Client shall have, by operation of law, the right (i) to reduce the price after the futile elapsing of a reasonable notice period or (ii) to withdraw from the contractual agreement.
5.4 The limitation period for any claims and rights on account of deficiencies of the Contractor in the services as well as for any and all compensatory damages claims arising from this legal basis shall, in the event of property and financial damages, be one (1) year after acceptance. All claims for compensation for damages to life, limb, or health shall always be subject to the statutory limitation period.
6. Outside services
The Contractor shall have the right to engage, in the name and on the account of the Client, any outside services necessary for performance of the assignment. The Client shall be obligated to issue power of attorney to BESTVISO GmbH for this purpose or as desired. Payments to outside service providers shall be effected directly by the Client to said service provider. The Client shall always be notified in advance of the retention of true outside services.
7. Data protection declaration
7.1 Handling personal data in a sensitive manner is a matter of course for BESTVISO GmbH. The processing and use of entrusted data is effected in accordance with the General Data Protection Regulation (GDPR) of the European Union. Moreover, the company is a member of the Professional Association of German Market and Social Researchers (Berufsverband der Deutschen Markt– und Sozialforscher e. V., the “BVM”), and in this regard shall be subject to the additional specific constraints in the area of market and opinion research.
7.2 The personal data that the Client may make available to the Contractor shall be electronically processed and used by the Contractor, to the extent that such is necessary for establishing, executing, or terminating the agreement. The Contractor shall comply with the provisions of the GDPR in the collection, processing, and use of personal data. Data shall not be passed to unauthorized third parties. Data shall not be transferred in a large scope or in a data collection, and shall not be released on the Internet. Data shall not be transferred abroad. In the course of the market research, the Contractor does not receive from its contracting partners any personal data within the meaning of the GDPR. Insofar as data that are anonymized or not anonymized are transferred to outside service providers for the purpose of carrying out the settlement process, a separate data protection agreement, as the necessity may arise, shall be entered into with each service provider.
The Contractor shall be obligated to treat any and all information received from the Client as strictly confidential and to use such information exclusively for the purpose of carrying out the assignment.
9. Limitation of liability
9.1 The Contractor shall be liable for malice or for gross negligence. In the event of slight negligence, the Contractor shall be liable only if material contractual duty (cardinal duty) has been breached. In the event of slight negligence, the compensatory damages claim against the Contractor shall always be limited to damages that are (i) foreseeable as a possible consequence at the time of entering into the contractual agreement and (ii) typical for such contractual agreements.
The scope of liability for fault-based claims within the aforementioned meaning can be limited in terms of amount by the Contractor in the individual case, both for financial and for property damage.
Limitations of liability shall not apply to any claims arising from injury to life, limb, or health.
9.2 If measures are carried out by the Client itself in the course of consulting rendered pursuant to this Agreement, then the Client shall be responsible for these measures itself. The Contractor shall not be liable to the Client for any economic success based upon the consulting services and recommended measures, nor for attaining forecasts generated by the Contractor. The Contractor shall not be liable for any damages caused by the Client due to incorrect or poor information, incomplete transfer of documents, or its own failure to meet deadlines.
9.3 The Client shall not be liable for services that have not been rendered or that have been inadequately rendered pursuant to no. 6 herein by outside service providers that the Client has retained directly upon the Contractor’s recommendation.
10. Final provisions
10.1 Any and all agreements between the Contractor and the Client shall require compliance with the written form as provided by German law (Schriftform) in order to be valid, even with regard to any subsequent modification or expansion of the services. Such shall apply as well to any waiver of the written-form requirement (Erfordernis der Schriftform) as provided by German law.
10.2 The ineffectiveness of any individual provision of these Terms and Conditions shall not result in the ineffectiveness of the remaining provisions. In this event, the contracting parties shall be obligated to replace the ineffective provision with an effective provision, which most closely approximates the business and economic purpose of the ineffective provision.
10.3 Venue shall be at Hamburg, Germany.
BESTVISO auf einen Blick
BESTVISO ist die Beratungsagentur für das Management von Kunden- und Marktinformationen. Ob bei der Steuerung wichtiger Marktforschungsprojekte, strategischen Empfehlungen oder der konkreten Umsetzung Ihrer Insights in Marketingmaßnahmen oder Innovationen – BESTVISO nutzt das volle Spektrum aller Methoden und Marktforschungsinstitute.
So können wir Ihnen – neutral und institutsübergreifend – neue Insights für Ziele liefern, und bereits vorhandene Informationen sinnvoll vernetzen.
Turn your insights into revenue. BESTVISO. The consulting agency for managing customer and market information.
EG, Aufgang C
Telephone: +49 (0) 40 52 47 89 02-0