General Terms and Conditions

§1 Scope of application and binding period

(1) These General Terms and Conditions apply to business relationships between AdEx Beratungs GmbH, AdEx Switzerland GmbH, or AdEx Austria GmbH (hereinafter referred to as “AdEx Partners”) and their respective clients, provided that these are entrepreneurs (§ 14 BGB), legal entities under public law, or special funds under public law within the meaning of § 310 (1) sentence 1 BGB.

(2) As a rule, a contractual relationship is only established with one of the AdEx Partners companies. Only the AdEx Partners company concluding the contract is subject to the obligations arising from the business relationship. If, in individual cases, the contractual relationship is established with several AdEx Partners companies, these companies are joint and several debtors.

(3) These General Terms and Conditions apply to all current and future orders placed by the client with AdEx Partners, without this having to be specifically or expressly agreed or pointed out. The client's general terms and conditions shall not become part of the contract, even if they are attached to requests for quotations, orders, order confirmations, declarations of acceptance, or similar, and are not contradicted.

§2 Services provided by AdEx Partners

(1) AdEx Partners shall perform its services in a professional and competent manner in accordance with the terms of the contract. Technical or other standards shall only be complied with if they are expressly stated in the offer documents and shall apply in the version valid at the time the offer is submitted.

(2) AdEx Partners employs carefully selected staff with the necessary qualifications to provide its services.

(3) Due to legal and tax consulting laws, AdEx Partners is prohibited from handling third-party legal matters, including legal advice, and from providing assistance in tax matters. These tasks are therefore not included in the scope of services provided by AdEx Partners. Likewise, advice on the US Sarbanes Oxley Act and comparable regulations is not included in the scope of services. The client is responsible for determining the legal and tax requirements applicable to the subject matter of the contract and shall notify AdEx Partners of the requirements relevant to the provision of services in a timely manner.

(4) AdEx Partners is entitled to engage third parties as vicarious agents.

(5) Changes to the assumptions underlying the conclusions and recommendations after the conclusion of the contract shall not result in any obligation on the part of AdEx Partners to inform the customer of these changes or the consequences thereof.

§3 Obligations of the client

(1) The client acknowledges that the fulfillment of its obligations to cooperate is a fundamental prerequisite for the provision of services by AdEx Partners and, in this respect, constitutes a contractual obligation. The client is obliged to provide the premises, technical environments, system access, contact persons, and documents necessary for AdEx Partners to provide its services at no cost to AdEx Partners. In addition, the client must make any decisions incumbent upon them regarding project implementation and project content without delay and notify AdEx Partners thereof, as well as review any change proposals from AdEx Partners without delay.

(2) The client shall inform AdEx Partners, without being asked, of any industry-specific or company-specific requirements and procedures, insofar as these are relevant to the provision of services. The client shall provide all technical and other documents and information necessary for the successful implementation of the project in a timely manner. The client is also obliged to obtain any official approvals required for the implementation of the project in a timely manner.

(3) If the client fails to fulfill an obligation or duty properly and this impairs AdEx Partners' ability to provide services, the agreed execution deadlines shall be extended in accordance with the delay, plus a reasonable period for resuming work. AdEx Partners shall be entitled to charge the additional costs incurred as a result, in particular for the extended provision of personnel or material resources, at the agreed rates. In addition, AdEx Partners shall be entitled to compensation for the damage caused if the customer is responsible for the failure to cooperate.

§4 Changes to the service to be provided (change requests)

(1) Either party may propose changes to the content and scope of the agreed services at any time (hereinafter referred to as “change requests”). Change requests must be submitted to the other party in writing.

(2) The client shall pay for the review of a change request requested by the customer on the basis of the agreed rates even if AdEx Partners is not subsequently commissioned to implement the change request.

(3) AdEx Partners shall not refuse to implement a change request without good cause. Good cause includes, for example, if AdEx Partners believes that the success of the service provision would be jeopardized as a result of the implementation, or if the desired change is outside the scope of AdEx Partners' services, or if the resources required to implement the change request are not freely available to AdEx Partners. The client may reject change requests from AdEx Partners without giving reasons. If the client rejects change requests against the recommendation of AdEx Partners, it shall assume responsibility for the consequences of the rejection. This shall not affect the contractually agreed service obligations of AdEx Partners.

(4) Contract amendments shall only become effective upon signing a written agreement that includes the changes associated with the implementation of the change request (in particular with regard to the content and scope of services, scheduling, and remuneration). AdEx Partners shall continue to perform the work on the basis of the existing contract until the changes have been agreed in writing.

§5 Prices and terms of payment

(1) Unless otherwise agreed, the services provided by AdEx Partners shall be invoiced monthly based on actual expenditure.

(2) If remuneration is calculated on the basis of “man-days,” “person-days,” or similar, one such “day” corresponds to 8 hours. Invoicing is based on actual hours worked up to the maximum number of working hours per calendar day permitted by law.

(3) If AdEx Partners incurs additional expenses due to gaps or ambiguities in the documents provided by the client and if the client is responsible for this, AdEx Partners shall be entitled to invoice these additional expenses at the agreed rates. This also applies to additional expenses that are attributable to contradictory or incorrect information provided by the client.

(4) Unless otherwise agreed, travel costs, expenses, and other incidental costs and outlays incurred by AdEx Partners in providing the contractually agreed services shall be invoiced additionally and at cost.

(5) All prices are net and in EUR, plus the statutory value-added tax applicable at the time of service provision, without deductions, unless otherwise agreed.

(6) Invoices are due for payment 14 days after receipt. In case of doubt, invoices shall be deemed to have been received three working days after the invoice date.

§6 Copyright and rights of use

(1) The client shall be granted the right to use the service results created for them by AdEx Partners (hereinafter referred to as “work results”) for their internal business purposes for an unlimited period of time. AdEx Partners grants the client this right subject to full payment. The client is entitled to transfer the right to affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG) upon conclusion of the contract or to grant them a simple right of use to the work results.

(2) Until full payment has been made, the client has the right to test the work results to the agreed extent. Any right of use shall expire if the client is more than 30 days in arrears with payment despite a written reminder from AdEx Partners.

(3) Paragraph (1) shall not apply to standard products that form part of the work results. Standard products are separately definable products or solutions from AdEx Partners or third parties that are subject to separate license terms. The client's rights to these standard products shall be determined exclusively by their license terms.

(4) The granting of rights pursuant to paragraph (1) does not apply to materials or solutions already existing at AdEx Partners (hereinafter referred to as “AdEx Partners Assets”), including any changes and additions made thereto. All rights to AdEx Partners Assets remain with AdEx Partners. The rights of use granted to the client for the AdEx Partners Assets incorporated into the work results are determined by the contractual purpose agreed upon by both parties. Isolated use of an AdEx Partners Asset is excluded.

(5) AdEx Partners shall be entitled, subject to its confidentiality obligations, to make unrestricted use of the work results, including the know-how acquired during the implementation of the project, in particular the concepts, procedures, methods, and interim results underlying the work results.

(6) The client grants AdEx Partners the simple right to use its existing intellectual property free of charge, insofar as this is necessary for AdEx Partners to provide its services.

§7 Customer rights in the event of legal defects

(1) AdEx Partners warrants that the work results provided do not infringe any third-party rights when used by the client in accordance with the contract. This warranty is subject to the client immediately notifying AdEx Partners in writing of any third-party rights asserted against it and leaving the legal defense and settlement negotiations to AdEx Partners. The client shall support AdEx Partners in this regard free of charge to a reasonable extent, in particular by providing the necessary information. Any commercial obligations of the client to give notice of defects remain unaffected.

(2) If a third party's right impairs the client's contractual use of a work result, AdEx Partners may, at its own discretion, either modify the work result so that the third party's right is no longer infringed or obtain the necessary authorization for the client to use the work result. Self-performance by the client or through the involvement of third parties is excluded.

(3) The client may only assert claims for damages within the scope of § 9.

(4) The client shall have no claims for legal defects if the work results have been modified by the client or third parties, unless the client can prove that the infringement was not caused by the modifications made by the client or third parties. The client shall also have no claims in the event of legal violations resulting from a combination of the work results of AdEx Partners with services or products of third parties who are not subcontractors of AdEx Partners in this regard.

§8 Client rights in the event of material defects

AdEx Partners generally provides services in the form of a service contract in accordance with Sections 611 et seq. of the German Civil Code (BGB). In exceptional cases where AdEx Partners concludes a contract for work and services with the client in accordance with Sections 631 et seq. BGB, the following shall apply in the event of material defects:

(1) In the event of defects in the services provided by an AdEx Partner, the client shall be entitled to subsequent performance by the AdEx Partner concerned, unless damage has already been incurred that cannot be remedied; in this regard, the AdEx Partner concerned shall be liable for damages within the scope of the provisions of § 9. If the subsequent performance is not successful within a reasonable period of time, the client shall be entitled to the statutory rights within the scope of the provisions of § 9.

(2) The client must assert their claim for the rectification of defects in writing without delay.

(3) Obvious inaccuracies, such as spelling mistakes, calculation errors, and formal deficiencies contained in a statement (report, expert opinion, etc.) by an AdEx Partner may be corrected at any time by the AdEx Partner concerned, including vis-à-vis third parties.

§9 Liability

AdEx Partners shall be liable without limitation under the Product Liability Act, in cases of express assumption of a guarantee or a procurement risk, and for intentional or grossly negligent breach of duty. AdEx Partners shall also be liable without limitation for intentional or negligent injury to life, limb, or health. AdEx Partners shall only be liable for property damage and financial loss caused by slight negligence in the event of a breach of such obligations, the fulfillment of which is essential for the proper execution of the contract and on the fulfillment of which the client may particularly rely (“essential contractual obligations”), but limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract.

§10 Statute of limitations

(1) Unless otherwise specified in these General Terms and Conditions, all claims of the client against AdEx Partners shall become time-barred within one year of the start of the statutory limitation period. This does not apply to limitation periods under the Product Liability Act. Section 634a (3) of the German Civil Code (BGB) also remains unaffected. The statutory limitation periods apply to claims for damages under Section 9.

§11 Confidentiality and data protection

(1) The parties shall keep confidential all confidential information of the other party that comes to their knowledge in the course of their cooperation, i.e., they shall protect such information from disclosure to unauthorized persons with the diligence of a prudent businessman. For the purposes of this provision, subcontractors employed in accordance with the contract, employees of the AdEx Partners group of companies, and consultants who are bound to professional secrecy are not considered unauthorized persons. The parties undertake to involve only those employees or third parties in the cooperation who have previously been bound to confidentiality to a comparable extent.

(2) All information of a party – regardless of its form – that is marked in writing as confidential or whose confidentiality is clearly apparent from its nature, in particular trade and business secrets, is subject to confidentiality.

(3) Information shall not be considered confidential if the receiving party can prove that it is or was (i) generally accessible, (ii) already in the party's possession without any obligation of confidentiality, (iii) developed independently and without the use of confidential information from another party, or (iv) lawfully acquired from a third party who was not bound by any obligation of confidentiality.

(4) AdEx Partners is authorized to collect, store, and process the client's personal data entrusted to it within the scope of the purpose of the orders placed, in compliance with the applicable data protection regulations. In particular, taking into account appropriate and necessary data protection and data security measures, AdEx Partners is authorized to collect personal data automatically, process it in an automated file, or transfer it to a service center for further order data processing within the scope of the purpose of the orders placed. This also applies to personal data of the client's employees. By commissioning AdEx Partners, the client grants permission to disclose facts subject to confidentiality to third parties, provided this is necessary for the proper execution of the order.

(5) AdEx Partners is entitled to retain a copy of the work results and project documents for purely internal purposes, even if they contain confidential information.

(6) The confidentiality obligations shall remain in force for a period of four years after termination of the respective contractual relationships.

§12 Termination of employment contracts

Unless otherwise agreed, service contracts may be terminated by either party at any time by giving two weeks' written notice to the end of the month. The rights under Section 626 of the German Civil Code (BGB) remain unaffected.

§13 Choice of law, place of jurisdiction

(1) The legal relationship between the parties shall be governed exclusively by the laws of the Federal Republic of Germany, excluding any conflict of law provisions of private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) The exclusive place of jurisdiction for all disputes arising directly or indirectly from a business relationship is Hamburg (Germany). AdEx Partners is also always entitled to bring legal action at the client's general place of jurisdiction.

§14 General provisions

(1) Additions, amendments, or subsidiary agreements to these General Terms and Conditions or other parts of the contract must be made in writing to be effective. This also applies to the waiver of this written form requirement.

(2) Should individual provisions of these General Terms and Conditions or other parts of the contract be invalid or void, they shall be replaced by provisions agreed between the parties that come as close as possible to the intended purpose of the invalid or void provisions. The same applies if the agreements contain unintended gaps.

(3) The assignment of rights or obligations of the client arising from the contract – in particular assignments and pledges – to third parties is excluded without the prior written consent of AdEx Partners.

(4) The client may only offset amounts owed against undisputed or legally established counterclaims.