General Terms and Conditions of Newcom Research & Consultancy B.V.
The following applies to each offer and/or proposal and/or instruction and/or research proposal and/or agreement for the performance of market research in the broadest sense of the word – by Newcom Research & Consultancy B.V. –, in particular, yet not exclusively for the production and making available of designs and measure instruments, the conduct of questionnaires and researches, the processing and analysing and/or reporting of the results obtained:
The General Terms and Conditions of the MarktOnderzoekAssociatie (MOA), approved by the members’ council on 17 May 2010;
and
The current General Terms and Conditions of Newcom Research & Consultancy B.V.
If and insofar as the current General Terms and Conditions of Newcom Research & Consultancy B.V. are in conflict with and/or deviate from the General Terms and Conditions of MOA, the provisions of the current general terms and conditions will prevail at all times.
Article 1. Conclusion of contract
1.1 Contracts will only be concluded when Newcom Research & Consultancy B.V., hereinafter to be referred to as: Newcom, confirms in writing the instruction given to it.
The confirmation of the instruction (written agreement) is deemed to reflect the content of the contract completely and correctly. The client is deemed to agree with the content of the confirmation of the instruction, unless it has made known in writing, within 5 days of its date, not to agree with it.
Article 2. Execution of instruction (contract)
2.1 Newcom will carry out the instruction independently and not in the employment of the client.
Newcom will carry out the instruction to the best of its knowledge and ability. This obligation is in the nature of an obligation to perform to the best of its ability.
2.2 Newcom is permitted to engage third parties for the execution of the instruction, if and insofar as this is desirable or essential for the good execution of the instruction, such at the discretion of Newcom.
2.3 Unless the nature of the work instructed is not suitable and/or parties have agreed otherwise in writing, the instruction to Newcom consists of the performance of the following work and phases:
a. To make a design and a measure instrument;
b. To set out and hold a questionnaire/research;
c. To process the (questionnaire/research) data obtained;
d. To analyse the (interview/research) data obtained, in order to obtain results;
e. To report data and results in accordance with the Newcom guidelines: summary, introduction, formulation of problem, description of research procedure and research results, conclusions, recommendations;
f. To present and/or multiply the reporting referred to under e.
2.4 After each phase, referred to in Article 2.3, Newcom will report in writing or by e-mail to the client. Client will be asked to approve the report. Client is deemed to have approved the report, if it has not made known to Newcom, within 14 days after Newcom has asked for approval, that it wishes to have modifications made to the phases or reporting concerned.
The client may only request modifications to essential points of the item submitted for approval, if the costs arising from these modifications will be paid by the client in advance, unless Newcom deviated demonstrably from the essential points of the phase approved or established immediately before that. The modification(s) made will be submitted for approval at a further to be agreed time pursuant to these terms and conditions.
After Newcom has applied modifications at the client’s request, the client will again be asked to approve the report.
After the report has been approved by the client, the current phase ends and the next will start.
2.5 Newcom will take care of obtaining any required permission to publish or multiply - but not to edit or change - the research results for the agreed distribution area.
2.6 Newcom will insure the material and production costs at its expense and under the standard condition of Newcom, and furthermore insure itself against statutory liabilities for a specific term, starting on the date of signing the contract until the actual delivery date. At the client’s request, Newcom may arrange further insurance policies at the client’s expense. On the client’s demand, Newcom will send a certified copy of the concerned policies or other evidence.
Article 3. Delivery time and planning
3.1 The delivery times (and planning) given by Newcom will start on the day that the contract is concluded, provided that all information required by Newcom for the execution of the instruction is in its possession.
3.2 The delivery times (and planning) given by Newcom will at no time serve as a firm date, unless explicitly agreed upon in writing.
Delivery times will be extended by the time during which the client has left unpaid any amount due, after it has become payable, as well as by the time during which the client has not or not completely supplied the information required for the execution of the instruction.
In the event of overdue delivery, Newcom will have to be given notice of default at all times.
3.3 Unless otherwise agreed in writing, delivery takes place when Newcom notifies the client in writing of the completion of the reporting with the accompanying described intention of research, research results, conclusions and recommendations with the request to approve the research (as referred to in Article 2 paragraph 4).
3.4 The client is obliged to purchase the items within the agreed term. In the absence of this, Newcom is entitled - at Newcom’s discretion - to demand under the provisions of Civil Code article 6:60 that the competent court releases Newcom from its obligation to supply the agreed items or to demand payment of the purchase price for the part not taken without prior notice of default. If the client fails to fulfil its payment obligations, Newcom will be entitled to terminate the contract without judicial intervention.
If the client still fails to purchase the items within the agreed term in accordance with the aforesaid, and Newcom demands payment of the purchase price, the items are deemed to have been delivered.
Article 4 Price and payment
4.1 All prices specified in a research proposal and/or offer are exclusive of turnover tax and other government levies.
Newcom is entitled to separately charge to the client the costs of the development of the measure instrument or the licence fees, which were paid by Newcom to the entitled parties and are essential for executing the instruction, conducting the research procedure and/or obtaining the research results (at Newcom’s discretion).
4.2 The agreed prices are based on the cost factors applicable at the time the contract (instruction) was concluded, such as raw materials or materials prices, wage costs, taxes, import duties and other government levies.
Newcom will reserve the right to charge increases in one or more cost factors to the client, if these occur after the date at which the contract was concluded.
4.3 Payment will take place in Dutch currency (Euros), without deduction of any discount, in cash at the location where we are established or by transfer to a bank or giro account specified by Newcom, in both cases 14 days after the invoice date at the latest; all this unless explicitly agreed otherwise.
In the event of payment through a bank or giro bank, the date of crediting to the aforesaid bank or giro account counts as the date of payment.
4.4 If the client fails to make (full) payment in time, he will be in default without any further notice of default being required and all claims of Newcom against the client will be immediately due and payable without any notice of default being required.
In that case, Newcom will be entitled, if and insofar as there is sufficient coherence in respect of client failing to make payment, to suspend fulfilling its obligations towards the client, without prejudice to any other rights arising from the common law.
Newcom is entitled to demand payment in cash before delivering the goods or to demand a guarantee for timely payment for all deliveries still to be made. Newcom is then also entitled to terminate the contract without judicial intervention, whereby the client is then obliged to return the delivered goods or obliged to otherwise undo the performance provided by Newcom, without prejudice to Newcom’s entitlement to compensation.
4.5 If the client fails to make timely payment, it will forfeit to Newcom, without further notice from Newcom being required, from the expiry date to the date of full payment, an interest of 2% per month or part of a calendar month, calculated on the agreed price or the unpaid part thereof, which interest will be immediately due and payable without any notice of default being required.
The client will also be obliged to pay to Newcom the extrajudicial collection costs related to the collection of its demands. These costs are determined at 15% of the principal sum, without prejudice to Newcom's right to charge any further reasonable costs pursuant to Article 6:96, paragraph 2, subparagraph c of the Dutch Civil Code.
All the negative consequences of a declining exchange rate or otherwise resulting from late payment or non-payment will be borne by the client, even if the client had complied with its payment obligations in time under the provision in force in its country, but circumstances or measures outside its control meant that the transfer took place in a manner detrimental to Newcom.
4.6 Payments are first set against the costs specified in Article 4, Paragraph 5, then against the interest that has become payable and finally against the principal sum and the accruing interest.
4.7 If the client’s financial position deteriorates substantially after the contract is concluded but before delivery of the goods, Newcom is entitled to refuse to fulfil the remainder of the contract in full or in part, or to demand a change in the terms of payment.
4.8 Any regulations of whichever authority will not change the client’s financial obligations.
4.9 The client's entitlement to set off any claims of Newcom is excluded.
4.10 The full amount is in any case immediately due and payable if payment has not been made by the due date, when the client is bankrupt, has applied for a moratorium, when the client’s business or claims are seized or when he deceases, is being liquidated or dissolved.
4.11 Newcom is entitled to demand from the client that it will provide security for the fulfilment of its obligations, such in particular also after the contract is concluded. If the client fails to provide the security requested by Newcom, Newcom may suspend the performance of its obligations and/or terminate the contract without any judicial intervention, without prejudice to the rights of Newcom arising from the common law.
Article 5 Cooperation of the client
5.1 The client is at all times obliged to timely and fully provide to Newcom all data and information required by Newcom for the execution of the instruction, such at Newcom’s discretion.
The client is obliged to notify Newcom of its approval and/or modifications, as referred to in Article 2 paragraph 4.
5.2 The client is obliged to timely and fully put at Newcom’s disposal all agreed facilities, such as equipment and materials, which facilities must comply with the conditions and requirements set thereto by Newcom.
5.3 The client guarantees the correctness and completeness of all mentioned data and information to Newcom, and indemnifies Newcom in that respect.
The client is responsible for the data, information and facilities mentioned, and indemnifies Newcom in that respect.
5.4 If the client fails to timely or fully provide the data, information and/or facilities mentioned, Newcom will be entitled to suspend the execution of the contract accordingly and to charge the additional costs arising from this in accordance with its customary rates.
Article 6. Retention of title
6.1 The measure instrument designed by Newcom, including the script, irrespective of whether it is incorporated in the research report, will remain the property and in the custody of Newcom in accordance with the provisions referred to in Article 9, Paragraphs 3 and 4 of the General Terms and Conditions of MOA.
The client is (will become) owner of the results arising from the research.
The intellectual property of the research (the rough data, procedure etc.) will remain the property and in custody of Newcom.
Newcom will conform to the ESOMAR/ICC Code for market research.
6.2 Each granting and/or transfer of users, property and/or other rights will occur under the suspensive condition that all amounts, which are the return for the performance delivered by Newcom to the client pursuant to the contract, and/or which are due pursuant to any failure in meeting one or more of the obligations under this contract, have been fully paid to Newcom by the client.
Article 7. Force majeure
7.1 Force majeure, as referred to in Article 11 of the General Terms and Conditions of MOA, is understood to mean each circumstance outside the control of Newcom which is of such nature that compliance with the agreement cannot reasonably be required from Newcom (so-called nonattributable breach of contract).
Force majeure includes: war, civil commotion and hostilities of any kind, blockade, boycott, strike, natural disasters, epidemics, a shortage of raw materials, disruption and interruption of transport provisions, disruptions within Newcom’s business or the business of any of its suppliers, import and export restrictions, impediments caused by measures, laws or orders of international, national and regional (public) authorities.
7.2 If Newcom is unable to comply with the contract (in time) due to force majeure, it is entitled to execute the contract at a later stage, or (if the execution of the contract will be delayed by more than three months due to force majeure) to consider the contract terminated, at Newcom’s discretion.
The client cannot hold Newcom liable for damages in the event of force majeure.
Article 8. Right of recovery / liability
8.1 The client is obliged – at the risk of forfeiting its recovery right – to assess the items (reports) delivered by Newcom, within the term referred to in Article 2 Paragraph 4. If it should then appear that there are faults or imperfections, the client will be obliged to notify Newcom thereof within the term mentioned.
This should take place by registered letter, containing an accurate description of the faults and/or imperfections.
8.2 Faults or imperfections which were not reasonably observable at the time of the aforesaid assessment, should be notified to Newcom by the client in the manner previously specified, within 10 days after these faults or imperfections have come to light, yet at the latest within 12 months after the concerned items (reports) have been delivered to the client.
8.3 Any right of claim which the client has against Newcom in respect of defects in the items supplied by Newcom will lapse if:
The defects have not been notified to Newcom within the period specified in paragraphs 1 and 2 above and/or in the manner specified there;
- The client fails to render any or sufficient assistance as regards investigation into the merits of the complaint;
The application and the use of the items, in respect of which the complaints have been filed, is continued by the client.
8.4 Complaints regarding the prices charged and other complaints in respect of invoices, must be filed in writing with Newcom within 8 days after the invoice date, failing which any claims of the client in this matter towards Newcom are cancelled.
8.5 The filing of complaints does not give the client the right to refuse the acceptance and/or payment of the items or to suspend payment.
8.6 The client must at all times give Newcom the opportunity to recover any fault.
8.7 If Newcom is liable, it will only be obliged, at Newcom’s discretion, to:
a. (free) recovery of the faults or imperfections, or
b. deliver or replace items after (return) receipt of the defective items, or
c. refund the purchase price received or a credit note for the invoice sent to the client with termination of the contract without judicial intervention, all insofar as the purchase sum, the invoice and the contract relate to the supplied defective items, or
d. pay compensation in a form other than described above in consultation with the client.
8.8 If the client has made modifications or has had them made to the items, without the prior explicit and written permission of Newcom, any warranty obligation of Newcom will expire.
8.9 Without prejudice to any obligation(s) pursuant to the aforesaid, Newcom will never be obliged to pay any compensation to the client or to others, unless there is intention or gross negligence on the part of Newcom (by the party who holds Newcom liable by all proving legal means).
Furthermore, Newcom is never liable for any consequential loss or trading loss, direct or indirect loss by any name, including loss of profit and stoppage loss, suffered by the client, its subordinates and persons employed by it or third parties as a result of full or partial re(delivery) of items, delayed or defective delivery or the failure to deliver goods or caused by the items themselves.
Furthermore, Newcom is not liable for any damage due to data loss, damage due to late delivery as a result of changed circumstances, damage because of poor assistance, information or materials by the client, or damage due to information or advice given by Newcom, which content does not form explicit part of a written agreement.
8.10 The client is obliged to indemnify Newcom against any claims that third parties may file against Newcom in the matter of the execution of the contract. More in particular, the client will indemnify Newcom against any claims from third parties related to the production and delivery of an item created by Newcom on the instruction of the client or created by order of Newcom on the instruction of the client.
The client will also reimburse Newcom for any expenses and damage which may arise for Newcom from any legal claims of third parties, such insofar as the law does not dictate that the concerned damage and expenses will be charged to the client.
8.11 If Newcom pursuant to the provisions in the current contract is liable and obliged to pay damages or compensation to the client, the damages or compensation will at all times be restricted to the amount that Newcom was paid for the concerned defective items or work of the client.
Article 9. (Interim) termination, suspension and termination of the instruction
9.1 Partial or complete termination of the instruction (contract) will take place via written declaration from the authorised party.
Before the client addresses a written statement of termination to Newcom, it will at all times first have to send to Newcom a written notice of default and give Newcom a term of at least seven days to meet its obligations at a later date or to recover the failures, which failures the client should report accurately in writing.
Before Newcom sends a written statement of termination to the client, it will first have to send to the client a written notice of default and give Newcom a term of at least 7 days to meet its obligations at a later date or to recover the failures, which failures should be accurately reported in writing by Newcom.
9.2 The client will not be entitled to terminate the instruction (agreement) in whole or in part or to suspend its obligations if it has also been in default with its obligations.
9.3 If the contract (instruction) is terminated, without Newcom being in default, Newcom will at all times be entitled to compensation of all financial loss such as expenses, lost profit and reasonable costs to assess damage and liability, and in particular to pay compensation for:
a. All out-of-pocket expenses incurred by Newcom at the time of termination, increased by any due “cancellation fees” of contracted freelancers and staff;
b. All hours made by Newcom at the customary rate at the time of the termination;
c. A customary percentage of overhead costs on the sum of a. and b.;
d. An amount to be further determined by Newcom in the event of creative, specialist and technical staff leaving.
9.4 In case of partial termination, the customer may make no claim for reversal of services already provided by Newcom, and Newcom will continue to be entitled to payment for services provided.
9.5 Notwithstanding the other provisions in these terms and conditions, either party is authorised to terminate the instruction (contract), without further notice of default or judicial intervention being required, if:
a. the other party is declared bankrupt;
b. the client is granted a moratorium that may or may not be provisional;
c. the other party’s company is wound up or terminated;
d. the other party loses full or partial power of disposition of its assets due to attachment, placement under guardianship or otherwise.
9.6 Continuing performance contracts, concluded for an indefinite period or definite period of time of more than 12 months, can at all times be terminated by either party in writing towards the end of a calendar month and with due observance of a period of notice of at least 3 months.
Contracts (instructions) that have been concluded for a definite period of time and are tacitly renewed (each time) for the same period on the expiry of that term, may be terminated in writing each time towards the end of the current specific period and with due observance of a notice period of at least one month.
Terminations as referred to in the current paragraph do not lead to liability to pay damages or any other form of compensation, unless explicitly agreed otherwise in the current general terms and conditions.
Article 10. Advices, designs and materials
10.1 Information and advices provided by Newcom are only of a general nature and without any obligation.
10.2 Newcom accepts no liability for any design worked out by or on behalf of the client, nor for any advices in view of that design.
The client itself is responsible for the functional suitability of the materials prescribed by the client. Functional suitability is understood to mean the suitability of the material for the purpose for which it is intended in accordance with the client’s design.
10.3 For designs not made by or on behalf of Newcom, Newcom will only assume responsibility for the production according to the instruction and for the soundness of the used materials, insofar as these materials were not prescribed by the client.
10.4 Newcom will never accept any liability for components and/or materials made available by the client itself or prescribed by the client.
