GENERAL TERMS AND CONDITIONS OF GAPFISH GMBH

To make these General Terms and Conditions (T&Cs) easier to read, we will dispense with the additional use of female and non-binary pronouns. The use of male pronouns will be considered gender-neutral.

GapFish GmbH, Uhlandstraße 175, 10719 Berlin (hereinafter referred to as “GapFish” or “we/us”) offers its contracting parties (hereinafter referred to as “Client”) services to conduct market research studies and opinion polls as well as other associated services.

The following GapFish T&Cs, in their form at the time of conclusion of the contract, will apply to the contractual relationship between GapFish and the Client and all subsequent contracts between GapFish and the Client, even if this is not agreed again separately.

1. EXCLUSIVE VALIDITY OF OUR T&Cs

The relationship between GapFish and the Client will be governed exclusively by our T&Cs. Any Client T&C’s differing from these T&Cs shall not apply, even if GapFish does not expressly object to this, unless agreed in writing prior to the conclusion of the contract.

2. SCOPE OF SERVICES

The contractual scope of services is determined in accordance with the content of the specific contract, which is always agreed separately in writing.

GapFish carries out its activities in compliance with the recognised professional standards of market and social research. These are currently accessible at:

An order is fully completed once the relevant services to be provided in accordance with the specific order have been provided by GapFish.

To avoid any misunderstandings: internet access is not part of the service.

3. CONCLUSION OF CONTRACT

Unless expressly stated otherwise, quotations provided by GapFish are always non-binding and are valid for a period of three (3) months from the date that they are sent to the potential Client.

Contracts must be concluded in writing (§ 126b of the German Civil Code).

4. FEES/PRICING CRITERIA

4.1 Fees

Payment of the agreed fee is owed for the services expressly stated in the quotation. Any additional services requested by the Client shall be agreed separately in writing and paid for separately by the Client.

If the agreed pricing criteria in accordance with No. 4.2 differ from the order after conclusion of the contract, GapFish reserves the right to temporarily suspend work on the project and adjust the price accordingly after informing the Client of this in writing. If the Client is not in agreement with the price adjustment, both parties are free to withdraw from the contract. No. 5 will apply.

4.2 Pricing criteria

GapFish’s fee is calculated on the basis of the number of fully completed questionnaires (hereinafter referred to as “Complete(s)”) and is detailed in the specific agreement between GapFish and the Client.

The relevant criteria for calculating the price for each Complete and which must be defined in the order are those that affect the ratio of Completes to interview/survey starters (= participants who start a survey) and/or the incentivisation of participants, in particular:

  • Incidence (also IR or incidence rate): the proportion of the target group within the pre-selectable population to be invited by GapFish or the proportion of expected Completes within the pre-selectable population on the GapFish panel. Technically, the incidence is defined as Completes/(screenouts + Completes), where screenouts are defined as people who are not part of the target group and who are therefore excluded from continuing to answer the questionnaire within the first six (6) questions. If the incidence stipulated in the order deviates from the incidence actually measured by 10% (not percentage points) or more, GapFish is entitled to suspend the service/adjust the price accordingly. This same right will apply if the specified incidence was based on a recognised source (e.g. German Federal Statistical Office, etc.) or if GapFish estimated this incidence at the Client’s request and/or in consultation and agreement with the Client, if it transpires that the basic principle(s) and/or context for the incidence chosen as a starting point were incorrect and/or incomplete.
  • Screening time: time or number of questions within which participants are identified as not belonging to the target group (and are therefore identified as screenouts) or as not meeting the quotas (and are therefore identified as quota-fulls). These questions are always asked at the start of a survey. If the screening time exceeds two (2) minutes or the number of screening and quota questions exceeds ten (10), GapFish is entitled to suspend the service/adjust their fee accordingly.
  • LOI (also mLOI or length of interview or survey processing time): the median length of the interview for all participants who fully completed the questionnaire. The LOI is a key factor in the incentivisation of participants as well as influencing participant dropout rates. If the LOI differs from the LOI agreed in the order by more than two (2) minutes, GapFish is entitled to suspend its service/adjust the price accordingly, unless GapFish is responsible for the difference. This right will also apply if the Client is not responsible for the difference, for example because the LOI is affected by technical factors and loading times beyond GapFish’s control.
  • Quotas (also quota system or quota plan): desired allocation of the total number of all Completes (sample) in accordance with quota characteristics (e.g. age, gender, region). All quotas/the quota plan shall be discussed with GapFish at the quotation stage and agreed in the order. If quota characteristics are crossed (cross-quotas), this shall also be discussed and agreed. Changes to the quota plan entitle GapFish to suspend its service/adjust the price accordingly.
  • Invalids (also quality fails or quality checks or bad respondents): participants who are excluded from answering the questionnaire due to the Client’s technical checking systems (e.g. duplicate checks, hardware test systems, IP checks, quality control mechanisms, control questions, etc.). GapFish shall be informed of the checking systems and mechanisms when asked to submit a quotation and these shall be agreed upon in the order. If the proportion of invalids exceeds the number of people who have started a survey (interview starters) by 10%, the number of invalids exceeding 10% are classified and calculated as screenouts.
  • Device suitability (also device or mobile compatibility): the compatibility of the questionnaire with the participants’ hardware or software. If a questionnaire cannot be completed using all standard types of hardware (desktop, laptop, tablet, smartphone) and browsers (Google Chrome, Microsoft Internet Explorer, Microsoft Edge, Mozilla Firefox, Apple Safari, Opera) or can only be completed subject to specific hardware or software requirements, GapFish shall be informed of this at the time of enquiry and this shall be stipulated in the order. If, during a project, it transpires that the device suitability does not correspond to the device suitability stipulated in the order, GapFish is entitled to suspend its service/adjust the price accordingly.
  • Survey language: A survey must always be conducted in all languages of the respective country, unless otherwise agreed in writing.
  • Field time: The duration of the field time shall be specified in the order and shall include the number of weekdays or the specific dates, as a minimum. A change to the field time specified by the Client, for example a reduction or extension, entitles GapFish to suspend its work/adjust the price accordingly.

The quality of participants’ answers has no bearing on pricing or the total fee as this is purely subjective and therefore does not qualify as a criterion. The parties may agree specific quality criteria in writing at the quotation stage, provided the particular circumstances allow for this.

If surveys are not programmed and hosted by GapFish and the Client does not provide suitable access to its systems which allows GapFish to independently track the number of survey/interview starters, dropouts, screenouts, quota-fulls, invalids and completes, then the values measured by GapFish’s system will be used as the exclusive basis for determining pricing criteria. If interview starters cannot be allocated a clear status, they are treated as screenouts. Every participant redirected to GapFish via complete-redirect is always calculated as a Complete, even if this is due to the Client’s incorrect use of the complete-redirect link.

If surveys are not programmed and hosted by GapFish and the measured values based on the pricing criteria in the Client’s system differ from the measured values in the GapFish system by more than 5%, the measured values in the GapFish system will apply as the basis for pricing. This will not apply if the Client can demonstrate to GapFish in a transparent and verifiable way that the values measured by GapFish are incorrect.

4.3 Questionnaire programming and hosting

The amount payable to GapFish for programming and hosting the questionnaire is always defined in the specific agreement between GapFish and the Client.

Criteria relevant to calculating the price are such criteria that entail work on the part of GapFish. In particular:

  • LOI (also mLOI or length of interview or survey processing time): the median length of interview of all participants who have fully completed the questionnaire. The LOI is used by GapFish as a reliable and objective measure for estimating the length of a questionnaire. Accordingly, the (provisional) LOI also determines the costs for programming a questionnaire.
  • Quotas (also quota system or quota plan): the desired allocation of the total number of all Completes (sample) in accordance with quota characteristics (e.g. age, gender, region) has a significant influence of the amount payable. All quotas/the quota plan are/is discussed with GapFish at the quotation stage and agreed in writing in the order. This includes whether quota characteristics should be crossed (cross-quotas), or whether quotas for various splits or monads are required in the questionnaire, or whether allocations over the duration of the field time (e.g. daily or weekly quotas) are required.
  • Number of survey languages: GapFish’s price calculations are based on the assumption that programming is only in the national languages of the country concerned. Any additional languages required can be provided at the Client’s request for an additional fee.
  • Complexity (also programming and questionnaire complexity) and special programming: GapFish’s price calculations are based on the assumption that the questionnaire programmed by GapFish has been designed by the Client and supplied to GapFish in Word format. At the Client’s request, GapFish can provide individual advice relating to the questionnaire for an additional fee. The questionnaire must include the text for questions, answer options, programming instructions and filtering instructions. Unless otherwise agreed in writing, GapFish’s calculation is based on the assumption of a single, linear questionnaire without any special programming or script/split/monad controls. Typical question types include single-choice, multiple-choice, matrix, scaled, open-ended, ranking and rating questions. The inclusion of up to 10 images supplied by the Client in the final size as PNG or JPG is included in the quoted price. Additional question types and requests can be arranged for an additional fee.
  • Required output: GapFish’s price calculations are based on the assumption that the output will be a labelled and a clean raw data set supplied in Excel or SPSS. Data cleansing is carried out in accordance with GapFish’s standards. Special requirements on the part of the Client with regard to data cleansing and additional result processing or result deliveries, such as a field report, compiling code frames, coding or re-translation of responses to open-ended questions, creation of a set of tables, data visualisation and analyses and interpretations are not included in the quotation, unless expressly agreed in the order. However, these can be arranged at the Client’s request at an additional fee.
  • Field time: The duration of the field time (number of weekdays or exact dates) has an impact on the price and is included in the price calculation for the GapFish quotation.

4.4 Additional services provided by GapFish

If the Client would like GapFish to provide additional services, the prices provided by GapFish in the quotation will apply together with the specific pricing criteria. If, during the project, it transpires that the actual criteria differ significantly from the criteria agreed in the order, GapFish is entitled to suspend its service/adjust the price accordingly.

4.5 Net prices

All agreed prices are net prices and are subject to VAT (value added tax) at the statutory rate applicable at the time when the service is provided.

4.6 Default and insolvency proceedings

If the Client defaults on a payment or if insolvency proceedings are commenced against the Client, GapFish can withhold any further services and immediately submit an invoice for all services already rendered. In the event of default or insolvency proceedings, GapFish is in all cases entitled to make the rendering of any further services dependent on the advance payment of fees for all existing orders, even if these had already been contractually agreed.

5. CANCELLATION OF ORDERS

GapFish reserves the right to cancel an order for an objectively justified reason and to refuse to complete the work. An objectively justified reason exists if it transpires that the order breaches rules of professional conduct, No. 6.3, 8 or the last paragraph of No. 10.2 of these T&Cs, or a statutory prohibition, if this is required for technical reasons, or in the event of a failure to agree with the Client about the price adjustment requested by GapFish following a significant deviation from the agreed pricing criteria (see No. 4.2). GapFish shall inform the Client of the cancellation and the reason for cancellation in writing without delay. However, GapFish will endeavour to find an amicable solution with the Client in order to avoid cancellation.

If the Client is responsible for the cancellation, the Client shall pay the agreed fee less the expenditure saved by the cancellation.

If GapFish is responsible for the cancellation, the Client is entitled to a refund of the advance payment. Any further claims are excluded.

6. CLIENT’S OBLIGATIONS/INDEMNIFICATION

6.1 Client’s general obligations

The Client is responsible for the project and shall ensure that he acts in accordance with applicable law and the rules of professional conduct outlined in No. 2 above and shall provide GapFish with appropriate assistance in the provision of contractual services.

In particular, the Client must ensure that GapFish has all information and materials required to carry out the order no later than one (1) working day before GapFish commences with the performance of contractual services.

Furthermore, the Client shall provide all information required by GapFish for future invoicing at the time of placing the order. This includes the invoice address, cost centres, delivery address, order numbers or project names, which are presumed necessary for the Client to accept the invoice. Information not provided at the time of order cannot be required on the invoice and cannot therefore be used as justification to refuse to accept the invoice. Consequently, invoices submitted by GapFish are due for payment on the contractually agreed payment date, even without this information.

Furthermore, the Client shall ensure the content of a study/survey and the data processing is carried out in accordance with rules of professional conduct, which can be viewed at the following URL: https://www.rat-marktforschung.de/branchenkodex/.

The Client shall also be required to check that the services rendered are being carried out in accordance with the contract as soon as services have commenced. If there are obvious differences from the agreed contractual terms, the Client must immediately inform GapFish of this in writing, e.g. by email.  Should a difference from the agreed contractual terms become apparent at a later date, the Client shall inform GapFish of this in writing as soon as the Client becomes aware of this.

6.2 Client’s special obligations in the case of studies not programmed and hosted by GapFish (sample only)

If the questionnaires are not intended to be provided on GapFish’s server, the Client shall grant GapFish access to its system in good time before services are rendered, and no later than one (1) working day beforehand to ensure that completed interviews can be recorded and invoiced. If this is not possible, the Client shall ensure that, on the final pages of the questionnaire, participants are correctly redirected to the GapFish system, including the transfer of the participation pseudonyms (participation_id) and the specific status of the participation pseudonyms (hereinafter referred to as “Redirects”). For this purpose, GapFish will provide four (4) different redirect links (Redirects). (“complete”, “screenout”, “quota-full” and “invalid”). Depending on the status assigned to the particular survey participant or the particular participation ID in the questionnaire, the Client must use the specific redirect link provided by GapFish to redirect participants to the GapFish panel. The redirect link used decides what information and incentive the participant receives from GapFish and it is therefore essential for the particular participant’s user experience.

Information on what each status type means:

  • complete: The participant belongs to the target group, matched the quotas and answered all survey questions.
  • screenout: The participant was identified as not being part of the target group within the first 10 questions and was redirected to GapFish without being able to answer all survey questions.
  • quota-full: The participant is part of the target group but was identified as not matching the quotas within the first 10 questions and was redirected to GapFish without being able to answer all survey questions.
  • invalid: The participant was identified as an ineligible participant, e.g. because he has already participated in the survey (duplicate check) or had not passed quality checks agreed with GapFish in advance (e.g. control questions, plausibility checks, etc.).

The Client shall implement GapFish redirects correctly in its survey and immediately inform GapFish in writing of any problems with the survey, the closing of quotas or with ending the survey.

On completion of the study, the Client must independently ensure that no further interviews can be conducted, and interview starters are redirected to quota-full status. In all cases, the Client will be charged for all Completes achieved until the Client ends the study.

On completion of the survey/study, the Client must immediately inform GapFish of the participation pseudonyms (“final IDs”) with the respective status (“complete”, “screenout”, “quota-full”, “invalid”), unless the parties have agreed otherwise in writing. 

6.3 The Client is responsible for the lawfulness of the survey/study

Conducting the survey in accordance with the contract must not be in breach of any statutory provisions and must not infringe any third-party rights. It is the Client’s responsibility to ensure that the content of the study or survey complies with press laws, competition laws and any other legal requirements, even if the survey is programmed and hosted by GapFish on behalf of the Client. A study may not contain any factual claims, value judgements or other statements in words or pictures which breach statutory prohibitions or infringe third-party rights (e.g. rights to the use of a name, copyright, data protection law). In particular, the study must not include any content that

  • is offensive or libellous or that harasses or supports harassment of anyone,
  • is pornographic and/or in breach of the Youth Protection Act,
  • supports racism, bigotry, hatred or physical violence of any kind towards any group or individual, or
  • promotes illegal activities or conduct, particularly content glorifying violence or inciting people to riot.

 

GapFish is not obliged to check orders for their legal permissibility.

Photos used by the Client must be able to be used and distributed for the purpose of market research, opinion polls and social research without naming the originator and without infringing third-party rights (in particular copyrights, personal rights or trademark rights). The Client shall not use or distribute content which is protected by law (e.g. by copyright law, trademark law, patent law, design law or utility model law) without authorisation. The Client may only use photos or content containing trademarks or other identifiers (company logos, work titles, etc.) if the Client holds the rights of use or is the owner of the copyrights, trademark rights, ancillary copyrights, personal rights or other rights.

6.4 Indemnification

If a claim is made against GapFish by a third party in association with an order on the grounds of a breach of a prohibition or applicable law stipulated in No. 6.3 (e.g. competition law, data protection law, copyright law, work title rights or rights of use and associated third-party rights or personal rights), or because the Client has used the data and/or results generated by the survey/study unlawfully, either deliberately or as a result of negligence (e.g. used these for unlawful/false advertising), the Client shall indemnify GapFish from all claims, including the costs of a reasonable legal defence, when first requested to do so. In such cases, the prerequisite is that GapFish immediately informs the Client of the third-party claims in writing.

7. FORCE MAJEURE

If the failure to provide the contractual service is due to force majeure or other circumstances beyond GapFish’s control, there is no obligation to provide a service for the duration of the obstacle to performance caused by these events.

If the obstacle to performance or the inability to provide the service is permanent or persists for a significant period of at least three months, both parties are entitled to withdraw from the contract.

8. CONFIDENTIALITY

GapFish shall treat all information supplied by the Client as strictly confidential and shall only use it to carry out the order. GapFish is entitled to destroy the information provided by the Client for the provision of the service as soon as the order has been fulfilled.

The Client shall treat the content of the contract concluded with us and the associated information, especially quotations including pricing and/or feasibility and/or participant data provided for study purposes, in the strictest confidence, unless this is in contravention to applicable laws obliging the Client to disclose and/or pass on confidential information.

The obligation to maintain confidentiality does not include information which was already common knowledge when the contract was concluded or subsequently became common knowledge without any breach of obligations to maintain confidentiality or which the Client lawfully received from third parties. The burden of proof that confidentiality does not apply is carried by the party making this claim.

The obligation to maintain confidentiality shall persist for a period of two (2) years after the order has been fulfilled.

9. NO EXCLUSIVITY

Exclusivity for particular product segments, research subjects or research methods is only granted by special agreement and at an additional fee.

10. DATA PROTECTION

10.1 Data protection in relation to the Client

We take data protection very seriously and comply with all relevant data protection laws, in particular the requirements of the General Data Protection Regulation (GDPR). The Client’s personal data will only be processed by GapFish to carry out or fulfil an order, or to carry out pre-contractual measures requested by the Client (Art. 6, para. 1b) of the GDPR); further information about data protection is provided in our Privacy Policy.

10.2 Protection of participants’ data

In order to protect participants’ personal data, they remain anonymous for the Client. Instead, GapFish provides the Client with anonymous participation pseudonyms (participation IDs), which cannot however be used to identify the participants. On completion of an order, the Client must immediately delete the IDs provided.

All personal data about participants remain with GapFish. The transfer of panel participants’ personal data to the Client conducting the study as a market research institute is only possible in separately agreed cases and only with the prior informed consent of the participants concerned and GapFish (Art. 4, para. 5 of the “Declaration for the Territory of the Federal Republic of Germany concerning the ICC/ESOMAR International Code of Market and Social Research”).

Individual answers provided by specific participants will not be shared by the Client, not even with GapFish.

GapFish is only permitted to share pseudonymised profile master data stored in the GapFish panel with the Client for the purposes of quality assurance and quality control by the Client, and the reasons for this must be stated by the Client at the time of enquiry. Alternatively, the Client must obtain the relevant consent from the survey participants and must inform GapFish of this intention when requesting a quotation.

Under no circumstances is the Client entitled, without GapFish’s prior written consent, to try to access the participants’ contact details or other personal data, or to contact them using data from elsewhere, unless this is done for study-related purposes, which were agreed by GapFish and the relevant participants beforehand in accordance with applicable data protection laws. If, by way of exception, survey participants’ personal data are processed, the Client is obliged to comply fully with the requirements of data protection law, in particular the GDPR.

11. CONTRACTUAL PENALTY

For each instance where the Client wilfully breaches the ban on contacting participants without our prior written consent, or the ban on obtaining participants’ contact details or other personal data, or in the case of a failure to delete participant IDs on completion of the order, a contractual penalty to be determined at our discretion and subject to review by the relevant district or regional court shall be payable by the Client. The same applies if the Client wilfully transfers or sells a personal detail about a participant to a third party without our prior written consent.

This shall not prejudice GapFish’s claims to payment of the agreed fee and the right to withdraw from the contract and claim damages.

12. COPYRIGHT/RIGHT OF USE/NAMING OF GAPFISH

12.1 Copyright for materials

If GapFish produces its own material to carry out the order (e.g. questionnaires, graphics, supporting documents, text), GapFish retains the copyright and all rights of use, unless expressly agreed otherwise in writing.

12.2 Simple right of use for the Client

Subject to full payment of the agreed fee by the Client, GapFish grants the Client the permanent, irrevocable and non-transferable right to use the deliverables provided within the scope of the contract.

 

12.3 Simple right of use for GapFish

If it is necessary for the completion of an order, GapFish is permitted to duplicate, edit and correct material prepared and provided by the Client, especially the amendment of dimensions, insofar as the Client can be reasonably expected to accept this. Insofar as this is possible and can be reasonably expected, GapFish will discuss the modifications with the Client and inform the Client of this insofar as this is reasonable.

12.4 Naming Gapfish

The Client is only permitted to name GapFish as the company conducting the survey with express prior written consent.

13. WARRANTY

13.1 Defective performance

In the event of a defect, the warranty law applicable at the time applies. For defective performance in relation to any hosting services provided by GapFish (see No. 4.3), the warranty rules of rental law apply (Section 536 et seq. of the German Civil Code), but with the proviso that the obligation to pay damages shall only apply in the event of fault, contrary to Section 536 a para. 1, 1st alternative of the German Civil Code.

13.2 Limitation period for damages

Any claims for damages against GapFish resulting from defective performance expire after one (1) year from the start of the ordinary statutory limitation period.

14. LIABILITY

We assume unlimited liability in the event of malice, wilful misconduct or gross negligence, within the scope of our expressly provided warranty, for damages resulting from death, personal injury or damage to health and in accordance with the provisions of the Product Liability Act. In the event of the negligent breach of an essential contractual obligation which must be fulfilled to carry out an order and in whose fulfilment the Client regularly trusts and should be able to trust (so-called “cardinal obligation”), we accept limited liability with respect to the reasonably foreseeable damage at the time of conclusion of the contract.

All further liability is excluded.

Where GapFish’s liability is excluded, this will also apply to the personal liability of employees, representatives, agents, e.g. subcontractors and other colleagues.

15. FINAL PROVISIONS

15.1 Jurisdiction

The place of performance and exclusive jurisdiction is Berlin, provided the Client is a businessman, legal entity under public law, or a special fund under public law. The same applies if the Client has no place of general jurisdiction in Germany or the EU, or the place of residence or habitual abode is not known at the time when legal action is brought.

15.2 Applicable law

German law applies to the exclusion of the rules on the conflict of laws in international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).

15.3 Invalidity of a clause

Should individual provisions of these T&Cs or parts thereof prove to be invalid or unenforceable, or should there be an omission, this does not affect the validity of the remaining provisions (preservation). Statutory regulations, if they exist, replace invalid clauses. If there are no statutory regulations or if there are omissions, the applicable provision is the provision GapFish would have chosen after giving appropriate consideration to both parties’ interests if it had known about the invalidity of the T&Cs or the omission.

T&Cs last updated: February 2021