GENERAL TERMS AND CONDITIONS (T&C or GTC) OF horizoom GmbH for Business Customers (B2B)
In order to simplify the readability of these General Terms and Conditions (T&C or GTC), we refrain from the additional use of the female and/or diverse form. The use of the masculine form is to be understood as gender-neutral.
horizoom GmbH, Clayallee 288, 14169 Berlin (hereinafter referred to as “horizoom” or “we/us”) offers its contractual partners (hereinafter referred to as “clients”) various services around the implementation of market, opinion and social research studies.
These GTC shall apply in their current version at the time of the respective conclusion of the contract to all contractual relationships between horizoom and the client; this shall also apply to future orders of the client towards horizoom, even if no further separate reference is made to our GTC.
1. EXCLUSIVE APPLICATION OF THESE GENERAL TERMS AND CONDITIONS
In the relationship between horizoom and the client our GTC shall apply exclusively. General terms and conditions of the client which deviate from these general terms and conditions shall not apply, even without express objection by horizoom, unless this was expressly agreed in text form prior to conclusion of the contract.
2. SCOPE OF SERVICES
The concrete contractual scope of services shall be determined by the respective content of the concrete contract or order, which shall be agreed separately in text form in each case. horizoom carries out its activities in accordance with the recognised rules of the profession of market and social researchers. These can be found at the time of the creation of these GTC under:
To avoid misunderstandings: Access to the Internet is not the subject of the service.
3. CONCLUSION OF CONTRACT
Offers made by horizoom are in principle subject to change unless expressly agreed otherwise and are valid for a period of three (3) months from the date of transmission to the potential contractual partner.
Conclusion of contracts as well as changes of agreements always require the text form (§ 126b BGB) in order to be effective; the same applies in the case of an agreement to waive the text form requirement.
4. REMUNERATION & PRICE ASSESSMENT CRITERIA
In addition to the services offered by us, the offer shall list the remuneration to be paid for them. Any additional services requested by the client must be agreed separately in text form and remunerated separately by the client.
50% of the agreed remuneration shall be due for payment when the order is placed and the other 50% when the order is completed, in each case with a payment term of 14 days net without deduction, unless the parties agree otherwise in text form when the order is placed.
If agreed price assessment criteria deviate from the order after conclusion of the contract according to clause 4.2 and/or 4.3, horizoom reserves the right to interrupt the service and after corresponding information of the client in text form the right to an appropriate price adjustment. Should the client reject the requested price adjustment, both parties are free to withdraw from the contract; clause 5 shall apply.
4.2 Price assessment criteria for participant recruitment
The remuneration of participant recruitments by horizoom is basically calculated on the basis of the number of completely filled in questionnaires (hereinafter referred to as “Complete(s)”) and is regulated in detail in the individual agreement between horizoom and the client.
Criteria which are relevant for the assessment of the price for each Complete and must be defined in the contract are those which influence the ratio of Completes (=participants who completely finish a survey) to Interview/Survey Starters (=participants who start a survey) and/or the incentivization of the participants, in particular:
- Incidence (also incidence rate or IR): The proportion of the target group or completes within the population that can be preselected by horizoom. Technically, the incidence is defined as completes / (screenouts + completes), where screenouts are defined as individuals who do not belong to the target group and are therefore excluded from further answering the questionnaire within the first ten (10) questions or two (2) minutes. If the actually measured incidence differs from the incidence agreed upon in the order by 10% (not: percentage points) or more, horizoom is entitled to interrupt the service and to adjust the price accordingly. This right also exists, if the client has referred to a recognized source with the incidence information at the time of request for quotation or if the incidence has been estimated by horizoom at the request of the client and/or in agreement with the client, or if it turns out that the basis(s) and/or the context for the incidence selected in the contract 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 thus as screenouts) or as not fitting the quotas (and thus as quota pulls). These questions are generally to be asked at the beginning of a survey. If the screening time exceeds two (2) minutes or the number of screening and quota queries exceeds ten (10) questions, horizoom is entitled to interrupt the service and adjust the remuneration accordingly.
- LOI (also length of interview): The mean interview duration of all participants who answered the questionnaire in full. The LOI significantly determines the incentivization of the participants, but also has an influence on the dropout probability of participants. If the LOI deviates from the LOI agreed upon in the order by more than two (2) minutes, horizoom is entitled to interrupt the service and adjust the price accordingly, unless horizoom is responsible for the deviation. This right also exists if the client is not responsible for the deviation, for example because the LOI is influenced by technical reasons (e.g. loading times) for which horizoom is not responsible.
- Quotas (also quota plan): desired distribution of the sum of all completes or invitations (sample) according to quota characteristics (e.g. gender, age, region). The quota plan and all quota characteristics and characteristic values as well as possible cross-quotations or also splits, filter guides or monads or distributions over the duration of the field time (e.g. daily or weekly quotas) (together: the quota plan) are to be agreed with horizoom in the offer phase and to be agreed in text form in the order. Post-contractual changes of the quota plan entitle horizoom to interrupt the service and to adjust the price accordingly.
- Invalids (also qualityfails or bad respondents): Participants who are excluded from answering the questionnaire by technical check systems of the client (e.g. hardware check systems, IP checks, duplicate checks, control questions or other control mechanisms). The control systems and mechanisms are to be communicated to horizoom with the request for quotation and agreed upon in the order. If the share of invalids in interview starters (= persons who have started a survey) exceeds a share of 10%, the invalids exceeding the 10% are evaluated and calculated as screenouts.
- device suitability (also device- or mobile compatibility): The compatibility of the questionnaire with the participants’ hardware or software. horizoom recommends that all studies are designed to be answered and processed on both stationary and mobile devices, unless there are urgent methodological reasons to the contrary. If a study cannot be processed with all common device types (desktop, laptop, tablet, smartphone) and browsers (Google Chrome, Microsoft Internet Explorer, Microsoft Edge, Mozilla Firefox, Apple Safari, Opera) or only under certain technical conditions, this has to be communicated to horizoom with the request for quotation and agreed upon in the order. If it turns out in the course of a project that the device suitability does not correspond to that agreed in the order, horizoom is entitled to interrupt the service and adjust the price accordingly.
- Survey language: A survey must in principle be conducted in all the respective national languages of the country or part of the country in which the participants are to be recruited, unless otherwise agreed in text form.
- Field time: The length of the field time (in hours, days, weeks or by specifying concrete dates) i.e. the time within which horizoom is to recruit the participants according to the contract is to be defined in the order. A post-contractual change of the field time specifications of the customer, for example a shortening or an extension, entitles horizoom to interrupt the service and to adjust the price accordingly.
The quality of the participants’ responses is not a price assessment criterion because it is hardly objective and therefore unsuitable. Within the framework of the bidding phase, certain quality criteria can be agreed in text form if the individual case permits this.
Basis for the determination of the pricing criteria are basically the values measured in horizoom. In the case of surveys programmed and hosted by the client, which provides horizoom with suitable access to its systems as well as independent access and a simple overview of the number of survey/interview starters, dropouts, screenouts, quota pulls, invalids and completes, the parties may agree something different in text form.
If the measured values of the price assessment criteria in systems of the Customer and the measured values in the horizoom system differ from each other by more than 5%, horizoom is entitled to interrupt the service until the reasons for the deviation are found and, if technically possible, eliminated. In this case the values measured in the horizoom system are valid as the basis for price calculation, unless the client can prove beyond doubt and verifiably that the values measured by horizoom are incorrect. Interview starters that cannot be clearly assigned to a status are treated as screenouts. In principle, every participant who is returned to horizoom via complete-redirect will be billed as complete, even if this is due to an incorrect use of the complete-redirect link by the client or his employees or vicarious agents.
4.3 Pricing criteria for questionnaire programming & hosting
The remuneration for questionnaire programming and hosting is basically regulated in the individual agreement between horizoom and the client.
The pricing criteria are based on the technical and temporal effort for service provision, in particular:
- LOI (also mLOI or length of interview): The average interview length of all participants who answered the questionnaire completely. The LOI is used by horizoom as a reliable and objective measure for estimating the length of a questionnaire. Accordingly, the (expected) LOI also influences the remuneration for programming a questionnaire.
- Quotas (also quota plan): desired distribution of the sum of all completes or invitations (sample) according to quota characteristics (e.g. gender, age, region). The quota plan and all quota characteristics and characteristic values as well as any cross-quotations or also splits, filter guides or monads or distributions over the duration of the field time (e.g. daily or weekly quotas) (together: the quota plan) are agreed with horizoom in the offer phase and agreed in text form in the order. Post-contractual changes of the quota plan, which are not within horizoom’s sphere of influence, entitle horizoom to interrupt the service and to adjust the price accordingly.
- Number of survey languages: Unless otherwise agreed in text form, offers of horizoom are based on the assumption that programming will only be done in the national languages of the respective country listed in the offer. Other languages can be programmed on request against separate payment. Unless otherwise agreed in text form, translations are the responsibility of the client.
- Special scripting and scripting complexity: Unless otherwise agreed in text form, offers of horizoom are based on the assumption that the questionnaire to be programmed is conceptualized by the client and transmitted to horizoom in all languages required for the execution of the order in Word or Excel format and including question texts, answer options, programming instructions and filter instructions clearly marked as such. An individual consultation by horizoom regarding the questionnaire conception is possible on request against separate remuneration. Unless otherwise agreed in text form, horizoom’s calculation is based on the assumption of a simple, linear questionnaire without special programming or script / split / monad controls or integration of special media types. Also excluded from horizoom’s programming are conjoint or MaxDiff designs, unless explicitly agreed upon in text form. Common question types are single choice, multiple choice, matrix, scale, open, ranking and rating questions. The inclusion of up to 10 images supplied by the client in final PNG or JPG format is included in stated prices. Additional question types and requirements can be agreed upon for a separate fee.
- Scope of delivery: Offers from horizoom for questionnaire programming and questionnaire hosting are based on the delivery of a labeled and cleaned raw data set in Excel or SPSS format. Data cleansing is carried out according to horizoom standards. Special requests of the client regarding data cleansing as well as additional result preparation or result delivery, such as a field report, code plan preparation, coding or back-translation of open mentions, preparation of a table volume, data visualizations such as dashboards or PowerPoint charts as well as analyses, interpretations and recommendations for action are not included in the offer, unless otherwise agreed in text form; upon request of the client we offer these against separate remuneration.
- Scripting time and hosting time: The duration of the scripting time (number of weekdays or exact dates), which horizoom has to implement the programming, as well as the duration of the hosting or field time, which are necessary to provide the service, are relevant for the price. Subsequent changes, which were not foreseeable at the time of the conclusion of the contract, entitle horizoom to interrupt the service and adjust the price.
4.4 Further services of horizoom
Should the client wish to make use of further services, the prices communicated by horizoom with the respective offer shall apply with the respective price assessment criteria. If it turns out during the project that the actual characteristics of the price assessment criteria deviate significantly from the characteristics of the price assessment criteria agreed upon in the order, without this having been recognizable for horizoom prior to the conclusion of the contract, horizoom shall be entitled to interrupt the performance and to adjust the price accordingly; the right to withdraw from the contract in accordance with clause 5.
4.5 Net prices
All prices are subject to the statutory value added tax valid at the time of performance of the service.
4.6 Default of payment and insolvency proceedings
If the client is in arrears with a payment or if an application for the opening of insolvency proceedings is filed against him, horizoom is entitled to withhold any further services and to invoice all services already rendered immediately and is also entitled to make the use of further services, even if they were already contractually agreed, dependent on the advance payment of the remuneration for all existing orders.
5. ORDER CANCELLATION
horizoom reserves the right to withdraw from an order for factually justified reasons and to refuse performance. An objectively justified reason is given if it turns out that technical reasons make the withdrawal necessary, that the order or client violates professional law, clauses 6.3, 8 or clauses 11. 2 of these general terms and conditions or against a legal prohibition, or in case of a non-agreement with the client about the price adjustment demanded by horizoom The client must be informed by horizoom immediately about the withdrawal and the reason for withdrawal in text form. horizoom will however try to find an amicable solution with the client in order to avoid the withdrawal.
If the client is responsible for the withdrawal, he has to pay the agreed remuneration under deduction of the expenses saved by the refusal.
Should horizoom be responsible for the withdrawal, the client is entitled to a refund of the deposit paid. Further claims are excluded.
6. OBLIGATIONS OF THE CLIENT & INDEMNIFICATION
6.1 General obligations of the client
The Customer shall be responsible for the Project and shall ensure to act in accordance with applicable law and the rules of professional conduct described in Clause 2 as well as to adequately support horizoom in the performance of contractual services.
In particular, the Principal shall ensure that horizoom has all information and materials required for the performance of the order at its disposal at least one (1) business day prior to the commencement of the performance of contractual services by horizoom.
Furthermore, the client is obliged to provide horizoom with all information required for later invoicing by horizoom, such as invoice address, cost centers, delivery address, order numbers or project designations, which are relevant for the acceptance of the invoice by the client. Information not provided with the order cannot be assumed on the invoice and therefore does not entitle to invoice acceptance refusal. Accordingly, invoices issued by horizoom are due for payment at the contractually agreed payment date even without this information.
Furthermore, the client is obligated to conduct a study including data processing in accordance with the industry code of conduct and the guidelines of the German industry associations, in their current version to be found at https://www.rat-marktforschung.de/branchenkodex/.
The client is also obligated to check the service for its compliance with the contract immediately after the start of the service. Should obvious deviations from the agreed content of the contract become apparent, the client has to inform horizoom immediately in text form. Also the later knowledge of a deviation from the contractually agreed content obligates the client to inform horizoom immediately in text form.
6.2 Special obligations of the client in case of studies which are not programmed and hosted by horizoom (“Sample Only”)
In case of studies which are not provided on horizoom’s servers, the client is obliged to assure horizoom in due time before the start of the service, but at the latest one (1) working day before, that on the respective end pages of the questionnaire a correct return of the participants, incl. transmission of the respective participation pseudonyms (TAN or participation ID or participation_id) and the respective status of the participation pseudonyms to the horizoom system via the redirect links provided by horizoom after acceptance of the order (hereinafter referred to as “redirects”). horizoom provides four (4) different redirects for this purpose. (“complete”, “screenout”, “quotafull” and “invalid”). Depending on the status that the respective survey participant or the respective participation pseudonym obtains in the questionnaire, the correct redirect link provided by horizoom must be used by the ordering party to redirect the participants back to the horizoom system. The used redirect link decides on the respective automatic information and incentivization of the participant by horizoom and is therefore essential for the user experience of the respective participant.
To the meanings of the different statuses:
- complete: The participant belongs to the target group, fit the quotas and answered the survey completely.
- screenout: The participant was identified as not belonging to the target group within the first 10 questions and was redirected back to horizoom without being able to answer the survey completely.
- quotafull: The participant belongs to the target group, but was identified within the first 10 questions as not fitting into the quotas and was redirected back to horizoom without being able to answer the survey completely.
- invalid: The participant was identified as an inadmissible participant in the course of the survey, e.g. because he/she has already participated in the survey (duplicate check) or has not passed quality checks agreed with horizoom in advance (e.g. control questions, plausibility checks, etc.).
The client is obliged to implement the redirects provided by horizoom technically correctly in his study or to have them implemented and to inform horizoom immediately in text form in case of disturbances in the survey, closed quotas or the pausing or termination of the survey (permanently or temporarily).
After termination of the survey, the client must independently ensure that no further interviews can be conducted and that the interview starters are henceforth directed to the quotafull status. In any case, the client will be charged for all completes incurred until the study is completed and technically closed.
Unless otherwise agreed in text form, the client is obliged to inform horizoom immediately after completion of a study about the participation pseudonyms (“Final IDs”) with the respective status (“complete”, “screenout”, “quotafull”, “invalid”) in a structured form (e.g. Excel table).
6.3 Responsibility of the Customer for Legality
The contractual execution of each order must not violate any legal regulations or the rights of third parties. The client bears the responsibility under press law, competition law, professional law as well as any other legal responsibility for the content of the study or survey, even if it is technically implemented or programmed and hosted by horizoom on behalf of the client. A study may not contain any factual assertions, value judgments or other statements in words or pictures, which violate legal prohibitions or rights of third parties (e.g. copyright, name, data protection law). In particular, the study must
- no insulting, defamatory or harassing statements
- no pornographic and/or against youth protection laws violating,
- no racist, inciting, fanatical, hate or violence and/or illegal activities supporting,
horizoom is not obliged to check the orders for their legal admissibility.
Materials provided by the client such as photos or videos or product samples must be allowed to be used and disseminated without copyright designation for the purpose of market, opinion and social research without violating the rights of third parties (in particular copyrights, personal rights or trademark rights). The client may not use or distribute content that is protected by law (e.g. by copyright, trademark, patent, design patent or utility patent law) without authorization. The Client may only use photos or content that contain trademarks or other identifiers (corporate identifiers, work titles, etc.) if it holds the rights of use or is the owner of copyrights, trademark rights, ancillary copyrights, personal rights and other rights.
6.4 Indemnification from claims
Should horizoom be sued by a third party in connection with an order of the client due to a violation of (i) prohibitions mentioned in clause 6.3, (ii) the obligations mentioned in clause 11.2 and/or (iii) applicable law (e.g. competition law, data protection law, copyrights, work title rights or rights of use and related rights of third parties or personal rights), or because the client has used the results generated by the study unlawfully intentionally or negligently, the client is obliged to indemnify horizoom and its employees and organs from the asserted claims as well as the reasonable costs of legal defense on first demand. Prerequisite for this is that horizoom informs the client immediately after knowledge about the claims asserted by the third party in text form.
7. AVAILABILITY OF OUR WEBSITE
Our websites are generally accessible 24 hours a day, but constant and uninterrupted availability is not technically possible; in particular, security and maintenance work as well as technical malfunctions beyond our control may lead to temporary inaccessibility. However, we make every effort to carry out maintenance work outside normal business hours if possible.
8. FORCE MAJEURE
Should the non-performance of the contractual service be due to force majeure or other circumstances for which horizoom is not responsible, there shall be no obligation to perform for the duration of the impediments to performance caused by these events.
Should the impossibility of performance or the impediment to performance be permanent or last for a not insignificant period of at least three months, both parties have the right to withdraw from the contract.
horizoom undertakes to treat all information provided by the client strictly confidential and to use it exclusively for the execution of the order. horizoom is entitled to destroy the information provided by the client for the performance of the service immediately after the execution of the order.
The client is obliged to treat the content of the contract concluded with us and the related information, in particular the offers with information on proposed solutions, prices, pricing criteria, feasibility and/or participant data provided for study purposes strictly confidential, unless applicable laws oblige the client to disclose and/or pass on confidential information.
Excluded from the confidentiality obligation is information that was already generally known at the time of the conclusion of the contract or subsequently became generally known without any breach of confidentiality obligations or that the client has lawfully received from third parties. The burden of proof that no confidentiality applies shall be borne by the party invoking it.
The obligation of confidentiality shall continue for a period of two (2) years after the execution of an order.
10. NO EXCLUSIVITY
Exclusivity for certain services, products, objects of investigation or methods of investigation shall only be granted upon express agreement in text form and against separate remuneration.
11. DATA PROTECTION
11.1 Data protection in relation to the client
11.2 Protection of participant data
In order to protect the personal data of the participants, they remain anonymous for the client. horizoom instead provides the client with anonymous participation pseudonyms (also SIDs or participation IDs or participation_ids), which, however, do not allow any conclusions to be drawn about the participants. The client is obliged to delete the participation pseudonyms submitted to him within 12 months of the end of an order.
All personal data about the participants remain with horizoom. As a matter of principle, we are not entitled to pass on personal data of the panel participants to a client. This is only possible in separately agreed cases and only with prior informed consent of the respective participants and horizoom (No. 4 para. 5 of the “Declaration for the Territory of the Federal Republic of Germany on the ICC/ESOMAR International Code of Conduct for Market and Social Research”).
The individual answers of the respective participants may not be passed on by the client to third parties – not even to horizoom.
A passing on of pseudonymized profile data in relation to participants of a survey/study, which are stored in the horizoom panel, can be passed on by horizoom to the client on request, if it is ensured that no further information is available to the client, which would enable a re-identification of the participants; otherwise the passing on of pseudonymized profile data is only possible in case of a corresponding informed consent by the participants.
The client is under no circumstances entitled to try to obtain the contact details or other personal data of the participants or to contact them on the basis of otherwise available data without the prior consent of horizoom in text form, unless it happens for study-related purposes previously agreed to by horizoom and the respective participants in accordance with the applicable data protection laws. If exceptionally personal data of participants are processed in a survey, the client is obliged to fully comply with the legal and professional data protection requirements, in particular the DSGVO in its current form at the time of the survey.
12. CONTRACTUAL PENALTY
For each case of culpable violation of the prohibition to contact participants without our prior permission granted in text form or to obtain the contact data or other personal data of participants or not to delete participation pseudonyms within 12 months after completion of an order, a contractual penalty to be determined by us in our reasonable discretion and reviewable by the competent district or regional court shall be payable by the client. The same applies if the client culpably forwards or sells a personal data of a participant to a third party without our prior written consent.
Claims of horizoom for payment of the agreed remuneration as well as the right to withdraw from the contract and to claim damages remain unaffected.
13. COPYRIGHT, RIGHT OF USE & NAMING OF HORIZOOM, CUSTOMER REFERENCE
13.1 Copyright to Materials
As far as horizoom develops material itself for the execution of the order (e.g. concepts, solution proposals, texts, calculations, questionnaires, graphics, other materials), horizoom is entitled to the copyright and all rights of use, unless expressly agreed otherwise in text form.
13.2 Simple right of use for the client
Subject to the full payment of the agreed remuneration by the client, horizoom grants the client the permanent, irrevocable and non-transferable right to use the work results provided within the scope of the contract.
13.3 Simple right of use for horizoom
If it is necessary for the execution of the order, horizoom is entitled to copy and process the material created and provided by the client (e.g. to change image dimensions) as far as this is reasonable for the client. horizoom shall, as far as this is possible and reasonable, coordinate the processing with the client.
13.4 Mention of horizoom
The client is only entitled to name horizoom as the executing company of a study after explicit prior consent in text form.
13.4 Customer Reference
By placing an order with horizoom, the client agrees that horizoom may name the client as a reference customer; this includes the right to use the client’s company logo in external communication.
14.1 Defects in performance
In case of a defect the applicable warranty law shall apply. For defects in relation to any hosting services to be provided by horizoom (cf. clause 4.3), the warranty rules of the tenancy law (§ 536 ff. BGB) shall apply, however, with the proviso that a liability for damages contrary to § 536 a para. 1, 1st alt. BGB only exists in the event of fault.
14.2 No warranty for unauthorized actions of the survey participants
Photographing, saving and/or copying of survey contents (text, images, audiovisual contents) by the survey participants cannot be technically prevented by horizoom, so that we cannot assume any liability for this. However, we oblige the survey participants to refrain from such actions and point out in the conditions of participation that they may be liable for damages if they culpably violate this obligation;
14.3 Statute of Limitations Damages
Any claims for damages against horizoom resulting from a defect in performance shall become statute-barred one (1) year after the beginning of the regular statutory limitation period.
Our liability shall be unlimited in the event of intent or gross negligence, fraudulent intent, within the scope of a guarantee expressly agreed and assumed by us in text form, for damages arising from injury to body, life or health, and in accordance with the provisions of the Product Liability Act.
In the event of a negligent breach of an essential contractual obligation, the fulfillment of which is a prerequisite for the proper execution of an order and on the fulfillment of which the client regularly relies and may rely (so-called “cardinal obligation”), our liability shall be limited to the damage reasonably foreseeable at the time of the conclusion of the contract.
In all other respects our liability is excluded. As far as the liability of horizoom is excluded, this also applies to the personal liability of its organs, employees, representatives, vicarious agents, e.g. subcontractors and other employees.
16. FINAL PROVISIONS
16.1 Place of jurisdiction
The place of performance and exclusive place of jurisdiction shall be Berlin.
16.2 Applicable law
German law shall apply to the exclusion of the conflict of laws provisions of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).
16.3 Ineffectiveness of a clause
Should individual clauses of these T&C or parts thereof prove to be invalid or unenforceable or should a loophole be found, the validity of the remaining provisions shall not be affected thereby (preservation). Invalid clauses shall be replaced by statutory regulations, if available. If no legal regulations are available or regulation gaps exist, the regulation takes effect, which horizoom would have chosen with appropriate consideration of the mutual interests, if it had been aware of the ineffectiveness of the GTC or the regulation gap.
Status of the T&C: October 2023