General Terms & Conditions
§1 Scope and Binding Period
(1) These General Terms and Conditions apply to business relationships of AdEx Beratungs GmbH, AdEx Switzerland GmbH, or AdEx Austria GmbH (hereinafter referred to as “AdEx Partners”) with their respective customers, provided that these customers are entrepreneurs (§ 14 BGB), legal entities under public law, or a special fund under public law within the meaning of § 310 para. 1 sentence 1 BGB.
(2) A contractual relationship usually only comes into existence with one of the AdEx Partners companies. Only the contracting AdEx Partners company is subject to the obligations resulting from the business relationships. If the contractual relationship is established with several AdEx Partners companies in individual cases, they are joint debtors.
(3) These General Terms and Conditions apply to all simultaneous or future additional orders of the customer to AdEx Partners, without the need for a special or explicit agreement or notice. The customer’s general terms and conditions do not become part of the contract, even if they are attached to requests for offers, orders, order confirmations, declarations of acceptance, or similar, and are not objected to.
§2 Services of AdEx Partners
(1) AdEx Partners provides its services in accordance with the contractual conditions in a professional and competent manner. Technical or other standards are only to be adhered to if they are explicitly listed in the offer documents and apply in the version valid at the time of the offer.
(2) AdEx Partners uses carefully selected employees with the necessary qualifications to provide the services.
(3) Due to legal and tax advisory laws, AdEx Partners is prohibited from handling foreign legal matters, including legal advice, and providing assistance in tax matters. These tasks are therefore not part of AdEx Partners’ scope of services. Likewise, advice on the American Sarbanes-Oxley Act and comparable regulations is not part of the service. The customer is responsible for determining the legal and tax requirements for the contractual subject matter and will inform AdEx Partners of the relevant requirements for service provision in a timely manner.
(4) AdEx Partners is entitled to engage third parties as vicarious agents.
(5) Changes in the assumptions underlying the conclusions and recommendations after the termination of the concluded contract do not result in an obligation for AdEx Partners to inform the customer of these changes or the resulting consequences.
§3 Customer Obligations
(1) The customer acknowledges that fulfilling his cooperation obligations is a fundamental prerequisite for the service provision by AdEx Partners and constitutes a contractual obligation. He is obliged to provide the necessary premises, technical environments, system access, information persons, and documents required for the service provision by AdEx Partners at no cost to AdEx Partners. Furthermore, the customer must make decisions regarding project execution and project content without delay and inform AdEx Partners, as well as promptly review change proposals from AdEx Partners.
(2) The customer must inform AdEx Partners of industry-specific or company-specific requirements and procedures relevant to the service provision without being asked. The customer must provide all technical and other documents and information necessary for the successful execution of the project in a timely manner. The customer is also obliged to obtain any necessary official permits for the project execution in a timely manner.
(3) If the customer fails to properly fulfill an obligation or duty and this impairs AdEx Partners in the service provision, agreed execution deadlines will be extended accordingly by the delay plus a reasonable period for resuming the work. AdEx Partners is entitled to charge the additional effort caused by this, especially for the extended provision of the deployed personnel or resources, at the agreed rates. Furthermore, AdEx Partners is entitled to compensation for the damage caused if the customer is at fault for the failure to cooperate.
§4 Changes to the Services 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 Request”). Change Requests must be submitted in writing to the other party.
(2) The examination of a Change Request requested by the customer must be compensated by the customer based on the agreed rates, even if AdEx Partners is not subsequently commissioned with the implementation of the Change Request.
(3) AdEx Partners will not unreasonably refuse the implementation of a Change Request. Significant reasons include, for example, if, in AdEx Partners’ opinion, the success of the service provision would be jeopardized by the implementation, or the desired change is outside AdEx Partners’ range of services, or the resources required for the implementation of the Change Request are not available to AdEx Partners. The customer may reject Change Requests from AdEx Partners without giving reasons. If he rejects Change Requests against AdEx Partners’ recommendation, he assumes responsibility for the consequences arising from the rejection. This does not affect AdEx Partners’ contractual service obligations.
(4) Contract amendments only become effective upon signing a written agreement that includes the changes associated with the implementation of the Change Request (particularly regarding service content and scope, scheduling, remuneration). AdEx Partners will continue to work based on the existing contract until the written agreement of the changes.
§5 Prices and Payment Terms
(1) Unless otherwise agreed, the services provided by AdEx Partners will be invoiced monthly based on actual effort.
(2) If remuneration is based on “man-days,” “person-days,” or similar, such a “day” corresponds to 8 hours. Billing is based on actual effort in hours up to the maximum legally permissible working hours per calendar day.
(3) If AdEx Partners incurs additional effort due to gaps or ambiguities in the documents provided by the customer and the customer is at fault, AdEx Partners is entitled to invoice this additional effort at the agreed rates. This also applies to additional effort caused by contradictory or incorrect information provided by the customer.
(4) Unless otherwise agreed, travel expenses, per diems, and other incidental costs, as well as expenses incurred for the provision of the contractually owed service by AdEx Partners, will be invoiced additionally and based on effort.
(5) All prices are net and in EURO, plus the applicable statutory VAT 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 are considered received three working days after the invoice date.
§6 Copyright and Usage Rights
(1) The customer receives the right to use the service results created by AdEx Partners (hereinafter referred to as “work results”) for their internal business purposes without time limitation. This right is granted by AdEx Partners to the customer subject to full payment. The customer is entitled to transfer the right to companies associated with him within the meaning of § 15 AktG or to grant them a simple usage right to the work results.
(2) Until full payment, the customer has the right to test the work results to the agreed extent. Any usage right expires if the customer is in default of payment for more than 30 days despite a written reminder from AdEx Partners.
(3) Paragraph (1) does not apply to standard products that are part of the work results. Standard products are self-contained products or solutions from AdEx Partners or third parties that are subject to separate license conditions. The customer’s rights to these standard products are exclusively determined by their license conditions.
(4) The granting of rights under paragraph (1) does not apply to pre-existing materials or solutions at AdEx Partners (hereinafter referred to as “AdEx Partners Assets”), including any changes and additions made to them. All rights to AdEx Partners Assets remain with AdEx Partners. The usage rights granted to the customer concerning the AdEx Partners Assets incorporated into the work results are determined by the contractual purpose agreed upon by both parties. An isolated use of an AdEx Partners Asset is excluded.
(5) AdEx Partners is entitled, while maintaining its confidentiality obligations, to use the work results, including the know-how acquired during the project, without restriction, particularly the concepts, procedures, methods, and interim results underlying the work results.
(6) The customer grants AdEx Partners the simple right to use existing intellectual property at the customer free of charge, to the extent necessary for the service provision by AdEx Partners.
§7 Customer Rights in Case of Legal Defects
(1) AdEx Partners warrants that the work results provided do not infringe third-party rights when used in accordance with the contract by the customer. This warranty requires the customer to notify AdEx Partners in writing without delay of any third-party rights asserted against him and to leave the legal defense and settlement negotiations to AdEx Partners. The customer will support AdEx Partners free of charge to a reasonable extent, particularly by providing the necessary information. Any commercial duty to examine and give notice of defects of the customer remains unaffected.
(2) If a third-party right impairs the contractual use of a work result by the customer, AdEx Partners may, at its discretion, either modify the work result so that the third-party right is no longer infringed or provide the customer with the necessary authorization to use the work result. Self-performance by the customer or the involvement of third parties is excluded.
(3) The customer can only assert claims for damages within the framework of § 9.
(4) The customer’s claims for legal defects do not exist if the work results have been modified by the customer or third parties unless the customer proves that the legal violation was not caused by the modifications made by the customer or the third party. The customer’s claims also do not exist in case of legal violations resulting from a combination of the work results of AdEx Partners with such services or products of third parties that are not subcontractors of AdEx Partners.
§8 Customer Rights in Case of Material Defects
AdEx Partners generally provides services in the form of a service contract according to §§ 611 ff. BGB. If AdEx Partners concludes a contract for work according to §§ 631 ff. BGB with the customer in exceptional cases, the following applies to material defects:
(1) In the case of defects in the services of an AdEx Partner, the customer is entitled to supplementary performance by the respective AdEx Partner unless damages have already occurred that are not amenable to rectification; in this respect, the respective AdEx Partner owes compensation within the framework of the provisions of § 9. If the supplementary performance does not lead to success within a reasonable period, the customer is entitled to the statutory rights within the framework of the provisions of § 9.
(2) The claim for rectification of defects must be asserted in writing by the customer without delay.
(3) Obvious inaccuracies, such as spelling errors, calculation errors, and formal defects contained in a statement (report, expert opinion, etc.) of an AdEx Partner, can be corrected by the respective AdEx Partner at any time, including to third parties.
§9 Liability
AdEx Partners is liable without limitation under the Product Liability Act, in cases of the explicit assumption of a guarantee or procurement risk, as well as for intentional or grossly negligent breaches of duty. AdEx Partners is also liable without limitation for intentional or negligent injury to life, body, or health. For slightly negligent caused property and financial damages, AdEx Partners is only liable in the event of a breach of such obligations, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the customer may particularly rely (“essential contractual obligations”), but limited to the foreseeable, contract-typical damage at the time of contract conclusion.
§10 Limitation Period
(1) All claims of the customer against AdEx Partners are subject to a limitation period of one year from the statutory commencement of the limitation period unless otherwise regulated in these General Terms and Conditions. This does not apply to limitation periods under the Product Liability Act. § 634a para. 3 BGB remains unaffected. For claims for damages under § 9, the statutory limitation periods apply.
§11 Confidentiality and Data Protection
(1) The parties will keep all confidential information of the other party that becomes known to them in the course of the cooperation confidential, i.e., protect it from unauthorized access with the care of a prudent businessman. Unauthorized persons within the meaning of this regulation are not the subcontractors used in accordance with the contract, as well as employees of the AdEx Partners corporate group and consultants bound by professional secrecy. The parties undertake to involve only such employees or third parties in the cooperation who have previously been obligated to confidentiality to a comparable extent.
(2) Confidential information is all information of a party – regardless of its form – that is marked as confidential in writing or whose confidentiality is clearly evident from its nature, particularly business and trade secrets.
(3) Information is not confidential if the receiving party can prove that it is either (i) generally accessible or was generally accessible, (ii) already in the possession of the party without an obligation to maintain confidentiality, (iii) independently developed without using confidential information of another party, or (iv) lawfully acquired from a third party who was not obligated to maintain confidentiality.
(4) AdEx Partners is authorized to collect, store, and process the personal data of the customer entrusted to it within the scope of the purpose of the assigned orders, taking into account the applicable data protection regulations. They are particularly authorized, considering appropriate and necessary data protection and data security measures, to collect personal data within the scope of the purpose of the assigned orders, process it in an automated file, or transfer it to a service data center for further order data processing. This also applies to personal data of the customer’s employees. By commissioning AdEx Partners, the customer grants permission to disclose facts subject to confidentiality to third parties if 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 continue for a period of four years after the termination of the respective contractual relationships.
§12 Termination of Service Contracts
Service contracts can be terminated by either party at any time with a notice period of two weeks to the end of the month, unless otherwise agreed. The rights under § 626 BGB remain unaffected.
§13 Choice of Law, Jurisdiction
(1) The legal relationship between the parties is governed exclusively by the law of the Federal Republic of Germany, excluding any conflict of laws rules of international private 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 always also entitled to sue at the general place of jurisdiction of the customer.
§14 General Provisions
(1) Amendments, changes, or side agreements to these General Terms and Conditions or other contractual components require written form 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 contractual components be invalid or void, they are to be replaced by provisions agreed upon between the parties that come closest 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 customer from the contract – in particular assignments and pledges – to third parties is excluded without the prior written consent of AdEx Partners.
(4) The customer may only offset with an undisputed or legally established counterclaim.
Stand 06/2023