General Terms and Conditions Profundo B.V.
21 August 2015
1 General provisions
1.1 In these General Terms and Conditions Profundo refers to the legal person Profundo B.V., with its seat in Amsterdam, registered at the Dutch company register under Chamber of Commerce number 55290833.
1.2 In these General Terms and Conditions the term client refers to a party with whom Profundo concluded a written agreement.
1.3 In these General Terms and Conditions the term assignment refers to all possible activities which Profundo offers to possible clients, including research, consultancy, training and other activities.
1.4 In these General Terms and Conditions the term research proposal refers to a description by Profundo of the activities offered to a possible client, including a time planning and quotation.
2 Applicability and amendments of the General Terms and Conditions
2.1 These General Terms and Conditions shall apply to all agreements between Profundo and the client, unless the parties agree otherwise in writing.
2.2 The terms and conditions of the client will only bound Profundo, if Profundo has expressly accepted them in writing.
2.3 Deviations from these General Terms and Conditions shall be in writing only and may only apply to an individual agreement that is at stake.
3 Research briefing
3.1 Before Profundo will start writing a research proposal, both parties should ensure that Profundo is sufficiently informed about the objectives of the client with the assignment.
3.2 Research proposals of Profundo are partly based on information provided by the client. The client guarantees that he has to his best knowledge provided all essential information necessary for the design and execution of the assignment.
3.3 The client guarantees that he is entitled to all the information provided to Profundo for the assignment.
4 Research proposals and quotations
4.1 Research proposals written by Profundo include a clear description of the proposed activities in the field of research, consultancy, training or otherwise. The research proposal also includes a time planning for the execution of the proposed activities and the submission of the results, as well as a quotation of the estimated costs (including fees and estimated number of hours to be spent). All elements of the research proposal can be changed in consultation with the client.
4.2 Al research proposals submitted by Profundo is not binding as long as no agreement has been reached with the client. The agreement, including all details on activities, time planning, costs and other specifications, is considered to be concluded once the client has returned a signed version of the research proposal.
4.3 If the client drafts its own contract based on the research proposal written by Profundo, the agreement is considered to be concluded once both parties have signed this contract.
4.4 Profundo may charge a fee for making a research proposal, provided that this was agreed with the client in advance.
4.5 If the client has requested more than one (potential) contractor to submit a research proposal, the client is obliged to inform all (potential) contractors about the number of requests.
4.6 If the client does not comply with the obligation pursuant to article 4.5 and the assignment is not assigned to Profundo, the client is obliged to pay the costs that Profundo has incurred in connection with the submission of the research proposal.
4.7 The daily fees offered in research proposals include all office costs and the costs for travel and accommodation in the Netherlands. Costs for travel and accommodation outside the Netherlands will be budgeted separately.
4.8 The costs and fees offered in research proposals do not include VAT. If the client is required to pay VAT over the assignment, the required VAT amount will be indicated separately.
4.9 Costs and fees offered by Profundo cannot be increased within three months after the research proposal is submitted, unless Profundo has reserved the right to increase the costs and fees.
4.10 The time planning proposed by Profundo in the research proposal, will remain valid until two weeks before the proposed starting date. If the client intends to conclude a agreement later, Profundo has the right to adjust the time planning.
5 Changes in the assignment
5.1 If the client intends to change the structure and/or content of the assignment after the agreement has been concluded, he has to consult with Profundo in due time. Profundo will cooperate with the suggested changes, provided that this can reasonably be expected of Profundo and provided that agreement is reached on the suggested changes and on the costs that can reasonably be charged additionally or that can reasonably be deducted.
5.2 Profundo is never allowed to make any changes in the agreed structure and/or contents of an assignment without the consent of the client.
6 Submission date and conditions
6.1 The submission date is determined approximately by Profundo in the research proposal and does not constitute a strict deadline.
6.2 The submission date is set based on the expectation that third parties deliver the needed data to Profundo on time. If this expectation turns out to be unfounded, then, even though it may have already been foreseen at the conclusion of the agreement, the submission date will be postponed by as many days as the delay lasted. The submission date will also be postponed if the client, after the agreement is concluded, changes the assignment or otherwise delays its execution.
6.3 If Profundo exceeds the approximate submission date, this does not give the client a right to claim compensation for any damage suffered.
6.4 If the client believes that the exceeding of the approximate submission date can be seen as unreasonably burdensome, the client will notify Profundo in writing of a reasonable deadline. Upon receipt of this notification Profundo is required to consult with the client on the proposed deadline.
6.5 There may be a strict deadline only if a precise date has been laid down in the agreement which is explicitly indicated as a strict deadline. A strict deadline is not binding in case of:
- interim changes in the assignment;
- additional work;
- factors out of the control of Profundo, that may affect the collection and analysis of data;
- late, inaccurate and/or poor provision of data to Profundo by the client;
- non-compliance by the client to his contractual obligations, including the timely submission of comments on a draft-report.
6.6 If the client is in default with respect to his obligation to pay, Profundo has the right to suspend its submission obligation until the client has fulfilled its obligation to pay.
6.7 If the assignment concern as research project, the final report will be submitted in digital form and upon request as a hardcopy (2 printed copies). Draft reports are submitted in digital form. If the assignment involves different types of activities, such as consultancy or training, specific agreements will be made on the submission of the results.
7 Time planning
7.1 If two weeks before the starting date of the assignment proposed in the research proposal no agreement has been concluded yet, Profundo has the right to modify the time planning.
7.2 If the client does not meet its contractual obligations - including the timely submission of comments on the draft report - in a proper, timely and complete way, Profundo has the right to modify the time planning.
7.3 Profundo will exert itself to meet the time planning such as agreed. When urgent matters necessitate to revise the planning during the assignment, this will be discussed with the client as soon as possible.
7.4 If the client wishes to modify the agreed time planning, he shall consult with Profundo. The willingness of Profundo change the time planning partially depends on the willingness of the client to cover the additional costs Profundo must make as a result of the desired change in the agreed time planning.
8.1 Profundo will execute the assignment and fulfil its contractual obligations to its best ability. This is a requirement to make a due effort. However, a full guarantee that all objectives of the client will be met cannot be given. The final result of a research project will depend among others on the availability of the required data in the information sources researched.
8.2 Profundo can be held liable by the client for any deficiencies in the execution of the assignment, provided that these deficiencies are the result of a lower level of care and expertise than may reasonably be expected from Profundo.
8.3 When information sources used by Profundo contain errors, Profundo is not liable for these errors unless it can be demonstrated that Profundo was aware of these errors in the information sources.
8.4 When the client publishes another publication or press release, based on the final report of Profundo, Profundo can not be held liable for the data or conclusions in this publication or press release, unless the client has asked Profundo to control the data and conclusions in the publication or press release.
8.5 The liability for the deficiencies referred to in article 8.2 is limited to the total fee Profundo receives for the assignment.
8.6 Any claims by the client shall be made within three years after the discovery of the deficiencies. After this period the rights of the client expire.
8.7 Any liability of Profundo for any consequential damage suffered by the client is excluded. Consequential damage includes all damages resulting from any use of research results by the client and third parties.
8.8 Persons, companies and organisations which have been researched by Profundo, can rely on the care and expertise of Profundo in the execution of research projects. Any liability for damage suffered by these third parties during the research process is excluded.
8.9 The client grants Profundo a general and unconditional indemnity from claims of third parties arising from:
- information used for the assignment which was provided by the client;
- the use of results of the assignment.
9 Finishing, default notice and premature termination
9.1 An assignment is considered finished when Profundo has submitted the final report and when the client has confirmed orally or in writing to Profundo that he has no further comments on the final report and/or when the client has confirmed orally or in writing to Profundo that he considers the assignment as terminated.
9.2 If Profundo, due to a cause that can be attributed to the client, cannot fulfil the assignment or cannot fulfil the assignment in accordance with the research proposal, Profundo will notify the client in writing and allow him a reasonable time to fulfil his obligations. If the client fails to do so Profundo is entitled to terminate the agreement prematurely through the means of an extrajudicial declaration. Profundo then gains the right to be reimbursed all costs made thus far for the execution of the assignment.
9.3 Article 9.2 also applies when the client systematically does not meet his obligations agreed in the time planning with regard to the provision of data or comments on the draft report, if this would lead to such a long postponement of the submission date that the final report would be outdated at the moment of publication.
9.4 If Profundo or the client goes bankrupt, (provisionally) has to suspend payments or cease operations, the other party has the right to terminate the agreement with immediate effect.
9.5 When the agreement is prematurely terminated by the client, the client is obliged to pay to Profundo a fee for the activities already executed and for the costs incurred. This entails, amongst others, work and costs associated with preparation, consultation, design, data gathering, analysis, reporting and consulting.
10 Intellectual property and publications
10.1 All rights, including the copyright, on the following research materials remain with Profundo:
- research proposals, quotations, etc.;
- all research materials developed by Profundo, such as models, methodologies, questionnaires, instruments and software;
- final reports of assignments agreed with more than one client (multi-client research).
10.2 If the assignment is agreed with one client, Profundo transfers the copyright on the final report to the client. The client thereby obtains as well the exclusive right to determine whether, how and when the final report is published. If the client publishes the report, or a publication based on the final report, the client will mention in this publication that the research was carried out by Profundo (with reference to the website www.profundo.nl). This also applies to accompanying press releases.
10.3 If the client does not publish the final report, Profundo will treat the final report and its contents as confidential at all times. Only after the client publishes the final report, or a publication based upon the final report, Profundo gains the right to disseminate the published publication via its own website or in other ways.
10.4 If the client publishes a publication or press release based on the final report, Profundo is prepared to verify the reproduction of facts and conclusions. If this concerns a large publication, Profundo can charge a fee for this verification.
10.5 After the assignment is terminated, Profundo gains the right to publish a very brief summary of the assignment - mentioning the name of the client, the topic and the main conclusions - on its website, in its newsletter and/or in in its annual report. This right is not affected by what is specified in article 10.3.
11 Payment terms
11.1 If the budget of the assignment exceeds € 5,000, Profundo will, after the agreement is concluded with the client, send an invoice for the first term of 40% of the budgeted amount. After the assignment is finished an itemized invoice will be sent for the remaining 60% plus additional and/or deducted costs, when applicable.
11.2 If the budget of the assignment does not exceed € 5,000, an itemized invoice will be sent after the assignment is finished.
11.3 Payment of invoices by the client is required within 14 days after the invoice date, quoting the invoice number.
11.4 No payments by the client will be accepted when Profundo has not sent an invoice yet.
12 Confidential information
12.1 All information provided by the parties to each other during the briefing and during the execution of the assignment, is strictly confidential and parties are obliged to observe confidentiality at all times. This obligation applies even if the client does not conclude an agreement with Profundo.
12.2 The confidentiality obligation described in article 12.1, does not include the data and conclusions included in the final report, in the case the client publishes the final report. In the case the client publishes a publication based on the final report, the confidentiality obligation does not include the data and conclusions mentioned in this publication.
12.3 The client is not permitted to make public (any part of) the research materials referred to in article 10.1 without the consent of Profundo. The client is allowed to reproduce the materials for internal use.
13 Involvement of third parties
13.1 Profundo is authorized to contract third parties to execute (part of) the assignment. If these third parties were selected and paid by Profundo, Profundo will continue to be fully responsible for the work executed by them.
13.2 If the client asks Profundo to collaborate with a third party on the execution of the assignment, responsibility for his work will continue to be with this third party.
14 Applicable law and settlement of disputes
14.1 Dutch law is applicable to all agreements between the client and Profundo. All disputes arising from or related to the execution of (an) agreement(s) between the parties, shall be settled by the court in Amsterdam, unless Profundo chooses to submit the dispute to the court in the location where the client has its official business address.