The company quantilope GmbH, Charlottenstraße 26, D-20257 Hamburg, Germany (“quantilope”) provides the web-based software solution quantilope, all components and functions relating thereto (collectively, the “Platform”), and consulting services relating thereto.
1.1 These General Terms and Conditions of Business (“GTC”) shall apply to contracts formed between quantilope and the client of quantilope (“Client”) for the Client’s use of the Platform (including any projects carried out thereunder) and to contracts governing the rendering of consulting services (in each instance, an “Individual Contract”).
1.2 As a supplement to these provisions in Part A of the GTC, the provisions in Part B of these GTC shall apply to the use of the Platform (including any projects carried out thereunder), the provisions in Part C of these GTC for consulting services, and the provisions in Part D of these GTC for panel access and services. To the extent reference is made in the following to sections of these GTC without specific mention of Parts A, B, C, or D, meant are the sections of the selfsame Parts from which the reference is made.
1.3 The application of any of the Client’s General Terms and Conditions of Business shall be precluded. Any of the Client’s diverging, opposing, or supplemental General Terms and Conditions of Business shall then become a component of the contract only to the extent that quantilope has expressly consented to their validity in writing. This consent requirement shall apply in every case, e.g., even if quantilope, having full knowledge of the Client’s General Terms and Conditions of Business, accepts the Client’s payments without reservation.
1.4 quantilope shall provide the Platform and the consulting services under these GTC only to Clients who are not consumers within the meaning of § 13 of the Bürgerliches Gesetzbuch (the German Civil Code, the “BGB”), i.e., if the respective services cannot be imputed to either the business or to the independent professional work of the end client.
1.5 To the extent that provisions arising from an Individual Contract stand opposed to the individual provisions of these GTC, the provisions arising from the respective Individual Contract shall take precedence.
1.6 quantilope shall have the right to have the services stipulated in the Individual Contract rendered, in whole in part, by third parties.
An Individual Contract is formed (i) when quantilope has an offer concerning the specifically desired scope of services sent to the Client in writing (fax or e-mail shall suffice) and (ii) the Client accepts this offer within ten (10) business days (or the notice period otherwise established in the offer) in writing (fax or e-mail shall suffice).
3.1 quantilope shall be liable to the extent provided by law for any damages which are caused by the no-charge functions of the Platform.
3.2 For all other damages, the following provisions (a) through (e) shall apply:
(a) quantilope shall have unrestricted liability for (i) damages arising from injury to life, limb, or health, which damages are based upon a breach of duty by quantilope or a legal representative or vicarious agent thereof; (ii) damages which are produced by the lack of a material quality (Beschaffenheit) guaranteed by quantilope, or (iii) the event of any malicious conduct by quantilope.
(b) quantilope shall have unrestricted liability for any damages that are caused willfully or by gross negligence by quantilope or by a legal representative or vicarious agent of quantilope.
(c) In the event of the breach of material contractual duties caused by slight negligence, quantilope shall be liable – expect in cases arising under Sect. 3.2(a) or Sect. 3.2(d) – to an amount limited to contractually typical foreseeable damages. ‘Material contractual duties’ are such duties the fulfillment of which are sine qua non for enabling proper fulfillment of the contract and upon the compliance with which the contracting parties may rely in due course.
(d) Liability under the Produkthaftungsgesetz (the Products Liability Act) shall not be affected.
(e) Any liability of quantilope apart from such shall be precluded.
(f) The limitation period for any compensatory damages claims of the Client against quantilope shall be one (1) year, except in cases arising under Sects. 3.2(a), 3.2(b), or Sect. 3.2(d).
4.1 “Confidential Information,” with respect to a party (the “Disclosing Party”), shall designate all non-public confidential information in connection with the business of the Disclosing Party. quantilope and the Client shall comply with this Sect. 4 in the exchange of Confidential Information. Upon disclosure, Confidential Information shall be set for and/or identified as confidential, with the proviso that information of which it was known, or under the given circumstances would have had to be known, to the party receiving this information (the “Receiving Party”), that the Disclosing Party regards it as confidential or protected, shall also be deemed as Confidential Information, even if it was not set forth or identified as such. The Receiving Party shall keep the Confidential Information secret and shall treat it with at least the same degree of care which the Receiving Party uses for protecting its own confidential information, but, however, with reasonable care. The Receiving Party shall use the Confidential Information only for excising rights and for fulfilling duties in accordance with the respective Individual Contract. Confidential Information shall be disclosed only to those employees and contractors of the Receiving Party who have a need to know this Information.
4.2 The obligations under this Sect. 4 shall apply for two (2) years beyond the end of the respective Individual Contract.
4.3 Confidential Information shall not fall under this Sect. 4 to the extent that (i) it becomes generally accessible and such is not based upon any breach of this Sect 4.; (ii) it was known to the Receiving Party prior to the date of receipt and the Receiving Party was allowed to use the Confidential Information freely and without any duty of non-disclosure; (iii) the Receiving Party lawfully obtained the Confidential Information through a third party, who is neither employed by the Disclosing Party nor associated with its business enterprise in another manner, and who supplied this information to the Recipient Party voluntarily and lawfully; (iv) the Receiving Party can prove that this information was independently deduced by employees or personnel of the Recipient Party who had no access to the corresponding Confidential Information, and that no Confidential Information was used to deduce this Information; and/or (v) the Confidential Information has to be disclosed by operation of law or a judicial decision, or disclosure is ordered by an authority having the right to do so for this purpose.
5.1 quantilope reserves the right to change the GTC and the services being offered, to the extent that the respective change is necessary to depict any modifications which were not foreseeable upon formation of the respective Individual Contract and the non-observance of which would deleteriously affect the contractual equilibrium between quantilope and the Client, including, but not limited to, the extent to which quantilope (i) is obligated to cause the services to be in conformity with the law applicable thereto, particularly if the applicable legal framework changes; and/or (ii) is therewith in compliance with a court judgment or other official decision directed against quantilope; and/or (iii) must adjust the Platform due to mandatory security-related issues.
5.2 At no point in time shall the fulfillment of the primary contractual duties be restricted by any changes to the services. Such shall be without prejudice to Part B, Sect. 2.6.
5.3 In cases other than those under Sect. 5.1, quantilope shall communicate any changes to the GTC to the Client in advance. To the extent that the Client does not object to their validity within four (4) weeks of the communication, the changes shall be deemed as accepted with prospective effect. If the Client objects to the changes, then quantilope shall have the right to terminate the respective contractual relationship. quantilope shall provide notice of the silence and the termination right in the communication.
6.1 Each Individual Contract formed between the parties, including these GTC, shall be subject to the substantive law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of international private law.
6.2 The exclusive venue shall be Hamburg, Germany.
6.3 Should one or several provisions of these GTC be or become invalid, then such shall be without prejudice to the validity of the remaining provisions.
6.4 In order to be effective, any changes to stipulations formed between the parties and any deviations and/or amendments to the GTC shall require, subject to Sect. 5, the written-form (Schriftform).
6.5 To the extent not otherwise governed in these GTC or in the Individual Contract, the Client may neither permanently nor temporarily transfer to any third parties, without quantilope’s prior written consent, the rights and duties arising from the Individual Contract.
1.1 The Client shall able upon request to receive a company client account at quantilope (the “Account”). However, there shall not exist any obligation on the part of quantilope. In order to receive an Account, the Client shall have to disclose to quantilope the registration data requested by quantilope. The corresponding Account contract (“Account Contract”) between the Client and quantilope shall be at no charge. The transmission of the registration data shall constitute, in this regard, the offer to enter into the Account Contract. The Client accepts this offer with the initial use of the registration data. If there exists between quantilope and the Client (only) an Account Contract, then the Client shall be able to look at the Platform’s functions but shall not, however, be able to use the Platform.
1.2 Upon formation of the Account Contract, quantilope shall provide the Client specific, personal identifiers for Account use (the “User Identifiers”). The Client shall be obligated to treat these User Identifiers in the strictest confidence and not to disclose the User Identifiers to any third parties at any time.
1.3 In accordance with the stipulations made in an Individual Contract, quantilope shall moreover be able to allow the Client to generate additional User Identifiers for the Client’s individual employees. The User Identifiers for the Client’s employees shall make possible for them – subject to the governing provisions in these GTC – access to the Client’s projects or project data that the Client carries out over the Platform, and, subject to Sect. 2.5, has carried out. A ‘Project’ is a fixed-term market research study, comprised of a one-time data collection (at least ten (10) data sets), the evaluation of the collected data, and the representation of the results of the evaluation. ‘Project data’ are the respective contents, data (inter alia, questionnaire data, panel data, etc.) and analysis results with respect to a project.
1.4 The number of stipulated User Identifiers shall not be allowed to be exceeded; the Client shall ensure that each employee having the right to the User Identifiers treats them confidentially and does not disclose them to any third parties at any time.
1.5 The simultaneous use of the one and the same User Identifier across multiple end devices shall not be permitted.
1.6 The Client shall be obligated to inform quantilope without undue delay if the Client obtains any knowledge that his or her User Identifiers are being used by any unauthorized persons.
2.1 In principle, quantilope offers two (2) different types of license packages for the fee-based use of the Platform:
(a) With the “pilot project license,” the Client can (1) carry out and manage a project stipulated by Individual Contract within a limited time period of three (3) months from the start of the contract, and have access to the commensurate project data in accordance with Sect. 2.4.
(b) With the “annual license,” the Client can carry out and manage a number of projects per contractual year, stipulated by Individual Contract, with a performance spectrum similarly stipulated by Individual Contract, and have access to the commensurate project data in accordance with Sect. 2.4.
2.2 Additional use rights of the Client with respect to the Platform and the Client’s account shall come from the individually stipulated contracts.
2.3 With the Platform, quantilope is providing a technology for configuring, carrying out, analyzing, and visualizing results of polls or market research studies. This technology in and of itself, however, does not, for its part, avoid user errors or content-based errors of the Client (e.g., unsuitable study design, leading questions, ambiguous formulations), or any consequential detriments resulting for the data collection, for the data analysis, and for the analysis results and/or incorrect conclusions and business decisions, which are made on the basis of the analysis results.
2.4 Within the framework of the functionalities of the Platform in accordance with Sects. 2.5, 2.6, and 4.5 below, the Client shall be able to obtain access to the project data generated by quantilope for the Client and/or by the Client, also to the extent that these contain client data within the meaning of Sect. 4.1.
2.5 In the case of a pilot project license, the access to the project data shall be at no charge for the time period specified in Sect. 2.1(a). In the case of an annual license, the access to project data shall be at no charge for the term of the contract. After expiration of the access period set forth in sent. 1 or sent. 2, quantilope shall have the right to delete the Client’s project data immediately after the end of the term of the contract.
2.6 In the exercise of its own reasonable discretion, quantilope shall update the Platform from time to time in the course of updates, upgrades, and releases. quantilope shall be able to technologically guarantee access to project data from projects which were carried out under a prior version of the Platform only for the period of two (2) years after the date of the first publication of a new release of the Platform.
2.7 quantilope shall make the Platform available on servers for use at the access point of quantilope’s computing center (“Transfer Point of the Service”). To use the Platform, it is necessary for the Client to have his or her own access to the internet and, via this access, to access the Platform at the Transfer Point of the Service. To achieve error-free use of the Platform, quantilope recommends the respectively current version of the browser Chrome, because with other browsers or with outdated versions of Chrome, a non-optimal depiction of the user interface can result.
2.8 The Platform is 98% accessible. ‘Accessibility’ denotes, with regard to the term of one (1) calendar year, the ratio of the time period in which use of the Platform was possible for the Client with the existing internet connection (plus the time period, in which the access was not possible due to planned servicing work or due to disruptions not within quantilope’s influence), in the ratio to the length of the entire calendar year.
3.1 To the extent not otherwise governed in the Individual Contract, quantilope shall grant the Client the geographically unrestricted, fixed-term, revocable, non-exclusive, non-sub-licensable and non-transferrable right to use the Platform for the Client’s own operational purposes.
3.2 To the extent not otherwise governed in an Individual Contract, the Client shall not have the right (i) to rent, lease, lend, reproduce, re-sell, or in any other manner to distribute or to share the Platform or the access thereto, even over the internet or a public or private downstream data network; (ii) to use the Platform for developing other services; (iii) to activate and to use components of the Platform for which no use rights have been granted to the Client; (iv) to transfer the use rights in the Platform to third parties or to grant third parties access to the Platform, (v) to modify, to translate, to reproduce, or to decompile the programming code of the Platform, to examine its functions, except to the extent permissible by compulsory operation of law as contemplated by § 69d or § 69e of the Urhebergesetz (the Copyright Act); and (vi) to remove, conceal, or to modify legal notices, including, but not limited to, those concerning the industrial property rights of quantilope.
3.3 To the extent that, over the platform, it is made possible for the Client to reproduce analysis results in reproducible form, e.g., by printing or separate storage, quantilope shall grant the Client, subject to any divergent governing provisions in the Individual Contract, the geographically and temporally unrestricted, revocable, non-exclusive, non-sub-licensable, and non-transferable right to use the reproduced items for the Client’s own purposes. The analysis results in and of themselves shall remain freely exploitable for the Client at any time, independently of the reproduced items generated over the Platform.
4.1 The Client shall be obligated to ensure through suitable measures that the hardware and software employed by the Client in the use of the Platform, including work-station computers, routers, data communication systems and so forth (the “IT Systems”) are free from any viruses, worms, Trojan horses, etc. (“Malicious Software”). Such suitable measures shall include in particular, but not be limited to, the Client’s (i) employing the respectively current version of the operating system software or a virus scanner on the IT Systems of the Client, and (ii) regularly inspecting the IT Systems for Malicious Software and removing such. The Client shall ensure that all data which the Client itself stores on quantilope’s servers in the course of the use of the Platform, e.g., questionnaire data, panel data, images, etc., generated or uploaded by the Client (collectively the “Client Data”) are free from any Malicious Software.
4.2 The Client shall grant quantilope a non-exclusive, geographically unlimited right without a fixed term temporally, to reproduce, to process, to transmit and, as applicable, to otherwise use the Client Data, to the extent that such is necessary to fulfill quantilope’s contractual duties vis-à-vis the Client.
4.3 The Client shall ensure (i) that the Client is the holder of all rights in the Client Data requisite to granting quantilope the rights set forth above, (ii) that the client can freely dispose over the Client Data, and (iii) that the Client Data are not encumbered with third-party rights which stand opposed to a use within the meaning of Sect. 4.2.
4.4 Irrespective of other rights, in the event of any breach of the above assurances, the Client shall indemnify quantilope from all liability vis-à-vis third parties, including reasonable expenses of legal defense. quantilope shall additionally have the right (i) to delete Client Data which do not meet the provisions of Sect. 4.1, and (ii) to delete content which does not meet the provisions of Sect. 4.3, if the Client does not delete such without undue delay despite the request.
4.5 The Client is cognizant that without a separate stipulation, quantilope shall not generate any back-up copies of the Client Data and that quantilope shall have the right to delete Client Data in accordance with Sect. 2.5 and/or Sect. 4.4. It shall be incumbent upon the Client to independently generate back-up copies of the Client Data.
The Client warrants that the Client has the right, pursuant to data protection law, to collect, to process, and use the Client Data within the scope of the use of the Platform or of other quantilope services under these GTC. Any breach of the Client’s duties in this Sect. 5 shall also furnish quantilope the right to extraordinary termination without notice of all existing contracts between the Client and quantilope.
Support services ordered by the Client, including, but not limited to, consulting and technical services, shall be invoiced at cost to the Client in accordance with the price list stipulated in the Individual Contract, and shall be subject to the provisions of Part C of these GTC.
7.1 To the extent not stipulated to the contrary in the Individual Contract, the stipulated fee for a pilot project license shall be payable without undue delay after the contract is formed. In the case of an Individual Contract governing the use of the Platform in accordance with the annual license, the fee shall be fully payable at the commencement of the contract and then completely at the commencement of each extended year.
7.2 Invoicing shall be effected via e-mail and subsequently, at the Client’s wish, via surface mail.
7.3 All stipulated fees are net amounts are shall be understood as being in addition to sales tax and VAT in the statutory amount.
7.4 Any offsetting with counterclaims by the Client or any withholding of payments due to such claims shall be permissible only to the extent that the counterclaims are undisputed or have been determined to be legally binding.
8.1 The statutory warranty provisions as contemplated under § 600 BGB shall apply to the no-charge functions of the Platform or in the event of their no-charge transfer.
8.2 With respect to the fee-based transfer of the Platform, in the event of any defects §§ 536 et seqq. BGB as well as provisions (a) through (d) below shall apply:
(a) The no-fault (verschuldensunabhängig) liability for incipient defects (anfängliche Mängel) as contemplated by § 563a para. 1, 1 variation BGB, shall be precluded. The no-fault liability of quantilope shall continue in existence. In the event determination is made that quantilope is culpable, it shall be acknowledged by the Client that the software as factual matter cannot be created in a fully error-free manner.
(b) The remediation of any defects shall be effected, at quantilope’s option, either by subsequent improvement at no charge or by a replacement delivery.
(c) A client termination in accordance with § 543 para. 2 sent. 1 no. 1 BGB due to non-granting (Nichtgewährung) of the use as contemplated by the contract shall be permissible only if quantilope was given sufficient opportunity to eliminate the defect and such has failed.
(d) quantilope shall assume no warranty for the Client’s internet access, including, but not limited to, the availability and dimensioning of the internet access. The Client shall itself be responsible for its internet access as of the transfer point of the service.
9.1 The Account Contract shall be formed for a term of seven (7) calendar days. After the expiration of this term, the Account Contract shall automatically end and the Client shall have no further access to his or her Account.
9.2 In derogation of Sect. 9.1, an Account Contract shall not end as long as at least one (1) Individual Contract of the Client’s is still ongoing. After expiration of the final Individual Contract, the Account Contract shall automatically end seven (7) days later.
9.3 An Individual Contract governing the use of the Platform in accordance with an annual license shall have an initial term of one (1) year and shall be able to be terminated at the earliest with a notice period of three (3) months as of the end of the initial term. If no termination or no timely termination is effected, then the Individual Contract shall be extended for a respective one-year period if one party does not terminate it with a notice period of three (3) months as of the end of the respective extension period.
9.4 Such shall be without prejudice to the statutory rights of both parties to extraordinary termination.
9.5 Any terminations shall require the written-form (Schriftform).
1.1 The scope of consulting services specifically owed by quantilope, the date of the rendering of the services, the commencement of the term and the duration of the ongoing services, the fees as well as any additionally stipulated terms and conditions shall be determined in the respective Individual Contract.
1.2 The place of performance is the operating site stipulated in the Individual Contract. If no specific operating site is set forth in the Individual Contract, then the place of performance shall be the business seat of quantilope.
The Client shall be entitled to a temporally unrestricted, revocable, non-exclusive, non-sub-licensable, and non-transferable right of use in the work products which are created and transferred to the Client by quantilope within the framework of the consulting services, in accordance with the purposes more closely described in the respective Individual Contract. To the extent not otherwise stipulated in the Individual Contract, the Client shall be allowed to use the work products created within the scope of the consulting services exclusively for his or her own purposes.
In order to render the consulting services, quantilope is dependent upon the support and cooperative assistance of the Client. The Client shall, in particular, be obligated to fully and punctually provide all requisite tools and equipment, information, and documents, and in the requisite quantity, to the employees of quantilope or any third parties retained for rendering the consulting services.
4.1 To the extent not otherwise stipulated in the Individual Contract, the fees for the consulting services shall be based upon the price list stipulated in the Individual Contract.
4.2 To the extent not otherwise stipulated in the Individual Contract, the stipulated fee shall be payable:
(a) for fees on a professional-fee basis (“time and material”), retroactively on a monthly basis
(b) for fees on a fixed-price basis, the stipulated fixed price shall be fully payable in each instance immediately after formation of the Individual Contract.
4.3 quantilope shall issue invoices for the services payable; said invoices shall be payable immediately after receipt of the quantilope invoice (e-mail) at the Client’s.
4.4 Invoicing shall be effected via e-mail and subsequently, at the Client’s wish, via surface mail.
4.5 All stipulated fees are net amounts and shall be understood as being in addition to sales tax and VAT in the statutory amount.
4.6 Any offsetting with counterclaims by the Client or any withholding of payments due to such claims shall be permissible only to the extent that the counterclaims are undisputed or have been determined to be legally binding.
5.1 To the extent that a definite time period or definite calendar dates have been stipulated for rendering the consulting services, neither of the parties shall have the right to ordinary termination of the Individual Contract. If the consulting services are stipulated for an indefinite time, then each party shall be able to ordinarily terminate the Individual Contract with a notice period of one (1) month as of the end of the quarter.
5.2 Such shall be without prejudice to the statutory rights of both parties to extraordinary termination for cause.
5.3 Any termination declarations shall require the written-form (Schriftform). A termination of the Individual Contract shall be without prejudice to the term and effectiveness of the remaining consulting contracts and other agreements formed between the parties.
1.1 Along with accessing its own panels, the Client shall have the opportunity to retain quantilope within the scope of a project with the collection of survey data (the “Panel Service”). The ‘Client’s own panel’ means the collection of survey data by a random sampling carried out by the Client.
1.2 The parties shall stipulate within the scope of an Individual Contract as to the precise scope of the services of a panel service.
1.3 quantilope shall have the right to retain sub-contractors to carry out the panel services.
2.1 Upon commencing the data collection, quantilope shall issue invoices for the panel services; these shall be payable immediately after receipt of the quantilope invoice (via e-mail) at the Client.
2.2 Invoicing shall be effected via e-mail and subsequently, at the Client’s wish, via surface mail.
2.3 All stipulated fees are net amounts and shall be understood as being in addition to sales tax and VAT in the statutory amount.
2.4 Any offsetting with counterclaims by the Client or any withholding of payments due to such claims shall be permissible only to the extent that the counterclaims are undisputed or have been determined to be legally binding.
3.1 For panel services, those surveyed shall fundamentally remain anonymous for the Client.
3.2 In the course of the survey, the Client shall not be allowed to collect any data that lets the participants be recognized or makes them identifiable (the “Anonymization Mandate”). Such shall also apply to any technical means of identification (e.g., time-stamp analysis or using URL parameters).
3.3 It shall not be possible for the Anonymization Mandate to be abrogated by the consent of the participant to/for the purpose of collecting personal data.
3.4 For connection of one’s own panel, Sects. 3.2 and 3.3 shall apply mutatis mutandis.
The panel data generated within the scope of the panel services are project data but not Client Data within the meaning of Part B. Sect. 4.1. To the extent necessary for the fulfillment of quantilope’s duties, Part B Sect. 4.2, shall, however, applymutatis mutandis.
6.1 To the extent an interview period has been stipulated for rendering the panel services, neither party shall have the right to ordinary termination of the Individual Contract.
6.2 Such shall be without prejudice to the rights of both parties as provided by law to extraordinary termination for cause.
6.3 Any termination declarations shall require the written-form (Schriftform). A termination of an Individual Contract shall be without prejudice to the term and effectiveness of the remaining Individual Contracts formed and other stipulations between the parties.