- The GapFish GmbH, Uhlandstraße 175, 10719 Berlin (in the following referred to as GapFish) offers market research companies and trade customers internet services for the performance of market and opinion research studies as well as services related thereto. GapFish manages a database containing participants (“panel”) who are willing to participate in internet surveys. Prior to their admission to the panel, the individual participants are questioned and classed on the basis of specific criteria (“screening“). Thus, it is ensured that the subsequent surveys can be directed at the desired target group.
- GapFish’s scope of activities ranges from the recruitment of panel participants for conducting studies, the conception and performance of fieldwork (programming of the questionnaires) and data supply and analysis of the results up to an all-inclusive service including the provision of the survey on GapFish’s own server (panel hosting and management).
GapFish’s following General Terms and Conditions shall apply to the relationship between GapFish and the principal.
Exclusively these GTC shall apply to the above-mentioned services rendered by GapFish.
Unless otherwise provided in these GTC, the legal regulations shall be deemed agreed. Even if GapFish does not expressly object to any conditions of the principal deviating from the GTC and/or from the legal regulations agreed pursuant to clause 1, those conditions shall not be deemed accepted by GapFish.
2. Scope of performance
The contractual scope of performance of GapFish (cf. subparagraph 2. of the preliminary note) shall be determined on the basis of the content of the concrete order. The scope of performance shall be agreed separately and in writing for any order.
GapFish exercises its activity within the meaning of consulting services in compliance with the recognized professional standards of the market and social researchers.
3. Conclusion of contract
All offers of GapFish shall be subject to change. Contracts shall be made in writing; a written or signed order confirmation from GapFish shall suffice. It shall also suffice if the principal returns the signed, unchanged offer as prepared by GapFish; in this case the principal waives reconfirmation. GapFish and the principal may expressly waive the written form requirement.
4. Price calculations and related obligations of the principal
The price for the services rendered by GapFish shall be calculated per participant. It shall be determined
- according to the percentage share of the target group in the overall population of the Federal Republic of German (“incidence”) indicated by the principal upon placing of the order;
- according to a period required for profiling the participants for the concrete survey (“screening period”) of approximately one minute, unless indicated to the contrary by the principal upon placing the order;
- according to the ratio predicted on the basis of empirical values between automatic termination of the interview if participants answered a question in a form that was not in line with the target group (“screenout”) and actual completion.
- according to further services that are agreed separately (e.g. programming and hosting, special developments etc.). Upon conclusion of the survey, the principal will be charged for every fully completed questionnaire (“complete”). The quality of the answer of the participants (e.g. “click-throughs”) is irrelevant.
For this reason the principal undertakes not to manipulate the number of fully completed questionnaires (“completes”) after placing of the order by the concrete composition of the questionnaire to the detriment of GapFish (for example by “screenout questions” shortly before the end of the questionnaire which usually result in the discontinuation of the questionnaire, e.g. questions requiring the personal data of the participant and the like). In case the principal breaches this obligation, the principal does not only have to pay the price for a complete for all questionnaires that were fully completed, but also for all interviews that were discontinued, unless the principal proves that the questionnaire was not discontinued due to the screenout question. If there is any doubt with respect to the validity of this proof, the obligation for payment will remain with the principal.
Should GapFish determine after conclusion of the contract that the incidence provided by the principal is not accurate or that the screening period exceeds two minutes and there are indications that the principal is to blame for the incidence deviation or the exceedance of time, GapFish may immediately discontinue the survey and begin investigations into the cause and open negotiations with the principal about a price adjustment. In case no agreement on a price adjustment can be reached, both GapFish and the principal are free to withdraw from the contract. If the indicated incidence is undercut, the principal must reimburse GapFish in addition to the agreed remuneration also for any additional expenditures as well as for any damage caused due to shortfall, unless the incidence is undercut although the principal could base its incidence on an recognized source (e.g. Federal Office of Statistics) and no other fault can be charged. In any case the principal must pay for the services already rendered by GapFish.
5. Rejection of orders
GapFish reserves the right to reject individual services – even if they relate to already existing contractual relationships – for important grounds, for example for legal, moral or ethical grounds or for technical grounds. GapFish will immediately inform the principal that it rejects the service.
If the principal is responsible for the reason for the rejection, the principal shall pay the agreed remuneration for the rejected service, unless GapFish culpably failed to use the time freed up by the rejection in other ways.
If the principal is not responsible for the reason for the rejection, the principal shall only be entitled to reimbursement of any downpayment that has already been made. Assertion of further claims by the principal shall be excluded.
6. Obligations of the principal
The principal shall be obliged to provide GapFish with all information and materials required for the proper execution of the services one working day prior to the beginning of the services at the latest. The concrete invitation to the participants that is to cause them to participate (“invitation template”) as well as the questionnaire must be suitable for the agreed purposes, especially for screen presentation in the corresponding environment and in the booked manner and size, and must correspond to the agreed format.
GapFish reserves the right to edit the material supplied by the principal and to make modifications and corrections, especially as regards the dimensions, insofar as this is required or advisable for optimum presentation and deemed acceptable for the principal. Already by signing the contract, the principal agrees to such editing as well as to such modifications and corrections.
If and insofar as the questionnaires are not provided on GapFish’s server, the principal undertakes to grant GapFish access to its system in good time prior to the commencement of the services, which access guarantees collection and billing of the interviews conducted.
Upon placing the order the principal confirms that the contractual completion of the services infringes neither legal provisions nor rights of third parties. The principal is solely responsible for the content of the study, from a media and competitive law standpoint, and in general. The principal guarantees that the study does not contain any factual claims, value judgments or other assertions in words or pictures that breach legal prohibitions or offend against good manners or infringe the rights of third parties (rights to a name, copyrights, data privacy laws etc.). In particular, the principal guarantees that the study contains no content that
- is offensive or libeling, harasses another person or supports harassments,
- is pornographic and/or erotic or in breach of laws for the protection of youths,
- supports racism, fanaticism, hatred or physical violence of any kind against a random group or individual person and
- promotes illegal activities or modes of behavior, especially no content that is violence-glorifying or race baiting. GapFish is not obliged to check whether the orders are legally admissible.
The principal guarantees that the photos used may be used and disseminated without designation of authorship for the purposes of market, opinion and social research without violating rights of third parties (in particular copyrights, personal rights or trademark rights). The principal must not illegally use or disseminate content that is protected by law (e.g. by copyright law, trademark law, patent law, design law or utility model law). The principal guarantees that he/she only uses photos or content containing trademarks or other marks (names of companies, work titles etc.) where he/she possesses the rights of use or is the proprietor of copyrights, trademark rights, ancillary copyrights, personal rights and other rights.
The principal keeps GapFish indemnified from all claims for compensation that are raised against GapFish due to the infringement of copyrights, work title rights or rights of use and related rights of third parties by the principal.
The principal is prohibited from taking any action that might impair the functionality of the panel or the web page of GapFish. In particular, the user must not use any data that might, by their type or nature, size or duplication, endanger the existence or operation of GapFish’s panel or web page.
The principal shall be obliged to indemnify GapFish from all damage, loss and expenditures (including legal advisory fees and expenses of the attorneys employed by GapFish) which GapFish incurs in total or individually due to court proceedings or as a result of threatened or asserted claims that arise from the principal`s failure to comply with the duties owed and warranties given in the contract or on the basis of the contract or from the content of the market research study together with its embedded links.
The principal shall be obliged to immediately check after GapFish’s first assignment whether GapFish’s service is in conformity with the contract and shall notify GapFish of any complaints in writing or by e-mail. In case the principal fails to notify GapFish in due time and in the proper form, the service rendered is deemed to comply with the contract.
The principal is solely responsible for closing the study in a timely manner and has to make sure that no further interview will be conducted after completion of the final complete. The principal will be billed for all completes up to the closing of the study. After the end of the study, the principal shall immediately inform GapFish about the user identities (“final Ids”), unless otherwise agreed in writing.
7. Obligations of GapFish; service provision
After the order has been placed, GapFish invites panel participants suitable for the principal’s target group by e-mail to participate in a survey until the principal closes the survey because the desired number of completes has been reached. The participants remain anonymous for the principal. The principal will not forward the concrete answers of the respective participants – not even to GapFish.
The order is deemed fully completed
- Sample: if the number of booked contacts has been called up from GapFish’s in-house system; GapFish sends the principal a written report (“reporting”) about the contacts called up and the number of interviews conducted in case GapFish’s access to the system of the principal functions properly;
- Complete service: upon provision of the agreed tabular and outcome reports;
- Individual services: upon fulfillment of the performance obligations individually defined in the contract.
GapFish shall only be obliged to fully complete the order insofar as and if the principal fulfills all contractual obligations in proper form and in due time. Otherwise, GapFish reserves the right to withdraw from the contract.
Should the agreed time schedule be delayed due to low participation, the principal shall grant GapFish a reasonable extension of the time schedule.
In case the contractual services cannot be provided due to force majeure or other circumstances outside of GapFish’s control, GapFish is not obliged to perform for the duration of the impediment of performance that occurred due to these events.
Should the inability to provide services or the impediment of performance become permanent or last for a not insignificant amount of time, GapFish reserves the right to withdraw from the contract.
GapFish undertakes to treat any information provided by the principal as strictly confidential and to exclusively use such information for fulfilling the order.
GapFish can only guarantee the exclusivity for certain product fields, objects of study or research methods if this is expressly agreed in the contract in writing. In this case an own participant database will be created that can be used by the principal itself (“private panel”). Insofar as exclusivity is agreed, its duration and the fee that is to be additionally charged shall be determined upon placing of the order.
8. Protection of personal data of panel participants / contractual penalty
All personal data of the participants solely remain at GapFish. Disclosure of personal data of the panel participants to a principal that conducts the study as market research institute shall only be possible in separately agreed cases and only with prior consent of the respective participants and GapFish (No. 4 subs. 5 of the ”Declaration for the Territory of the Federal Republic of Germany concerning the ICC/ESOMAR International Code of Marketing and Social Research”).
The anonymity of the interviewed persons or the test persons must not be endangered by a deviating agreement.
Should the principal attempt to obtain contact data of the participants without the necessary consents, the principal must pay GapFish for every single attempt or successful acquisition of the contact data a contractual penalty to the amount of 600 Euros. GapFish’s claims to payment of the agreed remuneration or of compensation shall not be affected thereby. In addition, GapFish expressly reserves the right to withdraw from the contract. .
9. Ownership / copyright and right of use in the data collected and the documents prepared
The ownership of and the copyrights in the material prepared by GapFish for carrying out the order (e.g. questionnaires, written documents etc.) remain with GapFish. Transfer of rights of use in this material requires an express written agreement. In all cases in which GapFish has conceptualized the study, the ownership of the accrued data remains with GapFish, unless otherwise agreed in writing.
In case GapFish furnishes survey results, those can, unless otherwise agreed in writing, be freely used by the respective principal – and only by the respective principal. The principal indemnifies GapFish from any claims that are asserted against GapFish because the principal has deliberately or negligently used the results obtained in a proper manner in an illegal manner (e.g. advertises illegally or deceptively with them).
If and insofar as the object of the contract is study results which originate from joint studies conducted by the principal and GapFish, it shall in the individual case be contractually agreed whether and, if applicable, which parts or whether all of the study results will be made available to the principal. However, the principal will not receive an exclusive right of use and may only use the results for himself/herself. The content of results from joint studies may, unless otherwise agreed, only be fully or partially published or disclosed to third parties with prior written consent from GapFish. Study results from joint studies also must not be duplicated, printed or stored, processed or distributed in information and documentation systems for the purpose of publication or for the purpose of disclosure to third parties without prior written consent from GapFish.
10. Terms of payment
Any agreed remuneration is exclusive of the statutory value-added tax that is valid at the time the service is rendered.
In case GapFish carries out panel hosting and management for the principal, the agreed fee shall already be due upon placing of the order without deduction. In all other cases half of the agreed fee shall be due when the order is placed, the remaining fee shall be due immediately upon invoicing without deduction. The costs arising from dunning and deferment of payment shall be borne by the principal.
In the case of recruitment or use of panel participants for a study the invoice shall be issued after expiration of the agreed period between sending the invitations to the survey and the end of the survey period by the closing of the study (field time). Fees shall be calculated on the basis of the number of completes; in case GapFish is not given a suitable access to principal’s system for preparing the invoice based on the number of completes, the principal shall be obliged to pay the amount that is calculated on the basis of the booked and sent contacts and the agreed individual price for one complete, unless the principal can provide proof to GapFish of the number of fully completed interviews by submitting a clearly comprehensible documentation.
In case the principal is in default of payment or if an application is made to open insolvency proceedings against him, GapFish shall be entitled to withhold any further services and to bill any services already rendered. In case of default of payment or opening of insolvency proceedings GapFish shall in any case be entitled to make further services, even if they have already been contractually agreed, conditional on an advance payment of the remuneration for all existing orders.
The principal may only offset claims of GapFish with undisputed or legally valid claims. .
In case of an inadequate provision of a service that does not only insignificantly impair its purpose, the principal shall be entitled to flawless supplementary performance. GapFish reserves the right to choose the type of supplementary performance. This shall in particular apply for the case that GapFish did not provide a service at all or provided only parts of it due to a technical breakdown for which GapFish is responsible. Reduction of remuneration can only be requested if the service cannot be repeated or is not deemed acceptable for the principal. The principal may set GapFish a reasonable term for repetition. In case the service is not repeated within the time limit set, the principal may request repayment of the remuneration to the extent of the services that were not provided in proper form.
In case GapFish does not provide a service or only in a faulty manner because GapFish received the required information incompletely, delayed or inadequately, GapFish shall be entitled to the full remuneration unless GapFish culpably failed to use the time freed up in another way.
GapFish shall be entitled to destroy the information provided by the principal for provision of the service immediately after the order has been completed.
Claims for compensation against GapFish shall be excluded independent of the legal ground, unless GapFish has acted deliberately or grossly negligently, the claims for compensation arise from the violation of a warranty or an injury to limb, life or health or if one of GapFish’s legal representatives or senior executives slightly negligently breaches an obligation that is of essential importance for achieving the purpose of the contract.
GapFish’s liability for economic decisions made by the principal on the basis of the study results obtained shall be expressly excluded.
Any claims for compensation against GapFish that result from a defect of service shall become time-barred after expiration of one year after commencement of the regular statutory statute of limitation.
Insofar as GapFish`s liability is excluded, this shall also apply to the personal liability of employees, representatives, subcontractors and other members of staff.
13. Data privacy
The principal is instructed in pursuance of the data privacy acts (e.g. Federal Data Protection Act, German Teleservices Act) that GapFish stores company and project data in machine-readable form and processes the same electronically for contract purposes. The principal agrees to said storage. GapFish shall, to the extent that third parties are used for fulfilling its services, be entitled to forward these data to the commissioned third parties if and insofar as this is required.
14. Final provisions
Berlin shall be the place of performance and exclusive place of jurisdiction for any dispute arising from or in connection with the services rendered.
German right shall apply under exclusion of the UN Convention on Contracts for the International Sale of Goods.
15. Partial invalidity
Should individual provisions of these GTC or parts thereof prove invalid, the validity of the remaining provisions shall not be affected thereby. Individual provisions shall be replaced by the legal regulation.
16. Amendments to the General Terms and Conditions
GapFish reserves the right to amend or renew these GTC at any time with effect for the future and has no obligation to separately announce this amendment or renewal. The currently valid version of the General Terms and Conditions is kept available on the web page from the date on which they become valid.
(GTC last updated: January 1, 2013)