General Terms and Conditions Sherlok Machine Learning
- General
1.1.
These general terms and conditions apply to all offers and/or quotations and/or assignments and/or agreements pertaining to the carrying out of data assignments in the broadest sense of the word, hereinafter to be referred to as ‘the Assignment’, issued or accepted by Sherlok Machine Learning, hereinafter to be referred to as ‘Sherlok’, and the (potential) client, hereinafter to be referred to as ‘the Client’.
1.2.
Any deviation from these General Terms and Conditions can only be agreed to in writing and only applies to the Assignment to which it explicitly refers. Any general terms and conditions by the Client shall not apply unless the parties have agreed in writing that (parts of) said terms and conditions are applicable in addition to these General Terms and Conditions.
1.3
Should one or more of the provisions of these General Terms Conditions become void, violate the law or become otherwise unenforceable, such provisions shall not affect the validity of the other provisions. Parties shall consult with each other and agree on a new provision to replace that which has become void or unenforceable, and covers the essence of that which has become void or unenforceable.
1.4
All Assignments shall be carried out in accordance with the ESOMAR Data Protection Checklist. Under no circumstances shall Assignments be carried out in violation of the mandatory provisions and prescriptive requirements of the International ICC/ESOMAR Code of Practice.
2 Data Assignment Briefing
2.1.
Sherlok shall seek to obtain a sufficiently clear idea of the objectives that the Client wishes to achieve with the Assignment.
2.2.
Any proposals submitted by Sherlok are based on information provided by the Client. The Client vouches for the fact that, to the best of its knowledge, it has provided all the information considered to be essential for setting up and carrying out the Assignment. The Client also vouches for the fact that it is authorised to use all the information provided to Sherlok, including address details, for the purposes of the data assignment.
2.3.
All information related to the Assignment provided to Sherlok by the Client during the briefing is strictly confidential and Sherlok is obliged to preserve the
secrecy of the information. This obligation to preserve the secrecy of the information also applies in the event that Sherlok has received information from the Client, without subsequently being issued with an Assignment.
- Data Assignment proposals and quotations
3.1.
All proposals and quotations submitted by Sherlok are free of obligation. An Assignment shall be considered as having been accepted, once Sherlok has confirmed the Assignment in writing, after having reached an agreement regarding the research proposal, or once research activities have commenced with the Client’s knowledge after an agreement has been reached.
3.2.
Sherlok shall be entitled to charge a fee for submitting a proposal, provided that this has been agreed with the Client in advance.
3.3.
In the event that the Client has invited or is intending to invite more than one (potential) agency to submit a proposal, the Client shall be obliged to notify all (potential) agencies of the number of agencies invited to submit proposals.
In the event that the Client should fail to comply with this obligation and should subsequently fail to issue Sherlok with an Assignment, the Client shall be obliged to cover all the costs incurred by Sherlok in connection with the submission of the research proposal.
3.4.
The rates and costs quoted by Sherlok may not be increased for a period of four months following the quotation, unless the project cannot be carried out within the period specified in the proposal due to fault on the part of the Client, or unless Sherlok has reserved the right to increase its rates and costs. The amounts specified in quotations are always quoted exclusive of value added tax.
- Liability
Sherlok shall carry out the Assignment to the best of its knowledge and ability. Unless otherwise agreed in writing, this commitment shall be considered an obligation to perform to the best of one’s ability.
Sherlok shall be liable for any shortcomings in the execution of the Assignment, to the extent that these shortcomings are due to failure on the part of Sherlok to exercise the necessary care and expertise that could normally be expected in the performance of such an Assignment. Liability for any damage caused as a result of such failure, shall be limited to the sum of the payment received by Sherlok for work carried out within the context of the Assignment.
Any claims by the Client are to be made within one year from the date on which the damage was discovered. By failing to bring forward a claim within the above period, the Client forfeits the right to compensation. Any liability on the part of Sherlok for any consequential damage incurred by the Client is hereby excluded.
Within the context of these General Terms and Conditions, consequential damage is understood to include all losses incurred as a result of any form of use of the data asssignment results by the Client, or by any third party. Hence the Client is to indemnify Sherlok against any claims by third parties on this count.
- Delivery dates and planning
5.1.
Agreed delivery dates shall not be binding in the event of a delay caused by unforeseen circumstances that involve interim changes in the Assignment or factors which neither Sherlok nor the Client could reasonably take into account at the time the Agreement was entered into. In the event that Sherlok anticipates a delay, Sherlok shall notify the Client to this effect immediately.
5.2.
In the event that the Client wishes to introduce a change in the agreed schedule, Sherlok shall endeavour to incorporate the change, provided that the Client discusses the change with Sherlok in good time, and on the condition that, given the circumstances of the case in question, Sherlok can reasonably be expected to do so. In the event that the Client changes the scheduled dates of delivering important data, Sherlok has the right to invoice the Client for the possible costs that Sherlok is likely to incur as a result of the change that the Client wishes to make in the agreed schedule.
- Changes / additional work
6.1.
In the event that the Client wishes to introduce certain changes to the set-up and/or content of the project, the Client is to discuss the matter with Sherlok well in advance. Sherlok shall endeavour to incorporate any changes the Client wishes to make, provided that Sherlok can reasonably be expected to do so, and provided that an agreement has been reached regarding such changes and the costs that can reasonably be charged in addition to the agreed fee, or deducted from the agreed fee.
6.2.
Under no circumstances shall Sherlok be permitted to make any changes to the agreed setup and/or content of a data assignment without the Client’s consent.
6.3.
In the event that Sherlok is likely to perform more work than originally provided for in the proposal on which the Assignment is based, Sherlok shall consult the Client on the matter. Any additional work to be carried out by Sherlok shall be paid for by the Client, unless this additional work is necessary due to negligence on the part of Sherlok, or because Sherlok failed to accurately assess the extent of the work concerned, or could reasonably have anticipated such. The fee for the additional work in question shall be determined in mutual agreement by the parties.
- (Premature) termination of the Assignment / suspension and cancellation of the Assignment
7.1.
In the event that the Assignment is not carried out in accordance with the proposal on which the Assignment is based due to a fault attributable to Sherlok, the Client shall serve Sherlok written notice of default and shall give Sherlok the opportunity to carry out the Assignment properly, observing a period of notice of seven (7) days. Only in the event that the Client cannot reasonably be expected to do so, shall the Client not be bound to grant Sherlok the opportunity to carry out the Assignment properly.
Any additional costs incurred by Sherlok, once Sherlok has been served notice of default, do not qualify for reimbursement. Only in the event that Sherlok persists in failing to meet its obligations after having been served notice of default, is the Client entitled to cancel the Assignment.
7.2.
In the event that Sherlok is unable to carry out the Assignment, or is unable to carry out the Assignment in accordance with the proposal on which the Assignment is based due to a fault that can be attributed to the Client, Sherlok shall serve the Client written notice of default and, observing a period of notice of seven (7) days, shall offer to carry out the Assignment as agreed, unless Sherlok cannot reasonably be expected to do so. Any additional costs incurred by Sherlok shall be invoiced to the Client. In the event that the Client chooses not to take advantage of said offer, the Client shall be obliged to reimburse Sherlok for losses incurred arising from the non-performance of the Assignment. Sherlok shall be entitled to cancel the Assignment and/or to suspend the execution of the Assignment without having to serve notice of default, in the event that the Client fails to fulfill its obligations towards Sherlok altogether, in terms of time, or as agreed.
7.3.
In the event that Sherlok or the Client becomes bankrupt, applies for (temporary) suspension of payment, or discontinues its operation, the other party shall be entitled to terminate the Assignment with immediate effect.
- Conditions of payment
8.1.
Unless otherwise indicated the rates specified in a specific proposal and/or quotation include travelling expenses and board and lodging expenses. Upon request by the Client, Sherlok is to provide a basic specification of any such costs that can be charged to the Client.
8.2.
Unless otherwise agreed, payment shall be due within fourteen (14) days of the date of invoice. Any outstanding payments shall be subject to interest calculated at the statutory rate from the date on which payment is due. In the event that the Client fails to fulfill one or more of its obligations towards Sherlok, all reasonable costs incurred in the process of seeking to obtain payment without going to court are to be paid by the Client. The minimum compensation shall be 15% of the total amount of the claim. The Client is not entitled to suspend any of its obligations towards Sherlok, nor is the Client entitled to set off any of its obligations against obligations on the part of Sherlok.
- Intellectual property
9.1.
All rights (including the copyright) pertaining to the following materials continue to rest with the Client, or shall be transferred to the Client:
- database files, instructions, specifications and all things regarding database files furnished by the Client, and any other information provided by the Client;
- the results of data assignments – in the form of analysis, reports, recommendations, and other such documents – in the event that the Assignment involves specially tailored consultancy, on the condition that the Client has settled all outstanding fees relating to the Assignment.
9.2.
Sherlok is not permitted to disclose the content of (any part of) the research material referred to in Article 9.1 to any third party without the Client’s consent.
9.3.
All rights, including the copyright, pertaining to the following materials rest and shall continue to rest with Sherlok:
- proposals, statements of expenditure, quotations and other such documents;
- all materials regarding data assignments developed by Sherlok, such as general data models, data techniques, questionnaires, instruments and software tools;
- The results of the data assignment in the form of reports, recommendations and other such documents in the event that the Assignment involves multi-client projects. Within the context of these General Terms and Conditions a multi-client project is understood to include all activities, carried out within the framework of the project, to the extent that the data is provided by and/or compiled for more than one client.
9.4.
The Client is not permitted to disclose the content of (any part of) the material referred to in Article 9.3 to any third party without Sherlok’s consent. The Client is entitled to reproduce the material referred to in Article 9.3. subclause c. for internal use, and to use this material for other internal purposes. .
- Force majeure
10.1
In the event that Sherlok is not able to fulfill its obligations, Sherlok shall immediately notify and consult with the Client. The Client shall work with Sherlok to extend the term as desired, providing that such can be reasonably requested of the Client and an appropriate agreement can be reached, as well as an agreement pertaining to any additional costs that can be reasonably invoiced or credited.
10.2
In the event that force majeure delays the execution of the Assignment for more than three (3) months, both Sherlok and the Client shall have the right to consider the Assignment terminated. In such a case, Sherlok shall only be compensated for the costs it incurred.
- Confidentiality and exclusivity
11.1
The Parties are obliged to keep secret from third parties which are not involved in the execution of the Assignment all confidential information that they have obtained within the framework of the Assignment from each other or from other sources. Information is deemed confidential if such has been stated by the other party or by virtue of the nature of the information, and in any case the information described in Article 2.3 of the General Terms and Conditions.
11.2
If market research is part of the Assignment, the Client is obliged to safeguard the privacy of the respondents. The Client shall only use the results obtained from the market research for statistical or comparative purposes, providing no result can be traced back to any individual respondent. The Client and the individual respondents, are, however, at liberty to consult with each other and make other arrangements.
11.3
If market research is part of the Assignment, and in the event that these General Terms and Conditions apply to an Assignment that the Client has awarded to the selection agency, the Client shall not add to its records information about the respondents provided by the selection agency or approach the respondents for any reason whatsoever or in any other way than through the selection agency.
11.4
In the event of a violation of the provisions of this article, the Client shall owe Sherlok an immediately due and payable penalty of ten (10) times the remuneration agreed for the Assignment without prejudice to Sherlok’s right to demand compensation.
- Transfer of rights and obligations
The Client does not have the right to transfer in whole or in part the rights and obligations arising from this Assignment to third parties unless Sherlok agrees to such transfer in writing.
- Other provisions
13.1
The Client does not have the right to settle a debt which it owes and is payable to Sherlok with a debt which is owed by Sherlok and payable to the Client.
13.2
Any claims that the Client brings against Sherlok on the basis of an Assignment or the law lapse after one year after the period of limitation corresponding with the statutory rules has commenced.
13.3
These General Terms and Conditions are filed with the court registry in Rotterdam and can be downloaded from www.sherlok.nl. The version last filed is the valid version.
13.4
Sherlok has the right to make changes to the General Terms and Conditions. These changes shall become effective on the announced commencement date, with the exception of Assignments that were agreed before the commencement date. Sherlok shall send the changed Terms and Conditions to the Client in due time. In the event that a commencement date has not been communicated, changes shall enter into force for the Client as soon as the change has been communicated or made known, with the exception of Assignments that were agreed before this date.
- Applicable law / rules regarding the settlement of disputes
All agreements between the Client and Sherlok are exclusively subject to Dutch law. All disputes, that may arise as a result of, or in connection with the execution of an agreement or agreements between parties, are to be settled by the district court in the place where Sherlok is situated, provided that the dispute falls within the jurisdiction of the district court, unless Sherlok chooses to bring the dispute before the district court in the place where the Client’s business premises are located.