General terms and conditions of business
Adam GmbH
General terms and conditions of business
1. General
The following General Terms and Conditions, in their version valid at the time of order placement, apply exclusively to all offers and services of Adam GmbH and its clients in the business relationship between Adam GmbH (hereinafter also referred to as "Adam"). Clients can access these General Terms and Conditions at any time at www.adam-ki.de and print or save them to their computer using their internet browser.
The following General Terms and Conditions (GTC) govern the services and/or works provided by Adam GmbH. The specific nature of the services and works is defined by the concept developed by Adam GmbH, the offer, the proposed actions, or the individual orders.
Any differing terms and conditions of the client will not be recognized unless Adam expressly agrees to their validity in writing. This also applies if the client's terms and conditions of business and/or delivery have not been expressly rejected.
Adam may subsequently amend these general terms and conditions and any supplementary special terms and conditions. In such a case, Adam will inform the client of the amended terms and conditions and clearly highlight the changes. If the client does not agree to these amendments, the client may object within one month of receiving the notification of amendment. If no objection is received within this period, the amendments will be deemed accepted, provided the client is a merchant as defined by the German Commercial Code (HGB). Adam will specifically draw the client's attention to their right to object, the significance of their conduct, and the resulting legal consequences in the notification of amendment, unless the client is a merchant as defined by the German Commercial Code (HGB).
These terms and conditions are an integral part of every concluded contract, unless otherwise agreed in writing. They also apply to future business relationships with the client without the need for their express reincorporation.
2. Conclusion of the contract
The offers from "Adam" are non-binding and subject to change.
A contract only comes into effect when the contract has been concluded in writing, the order of the client is confirmed in writing by "Adam", or "Adam" has started with the execution.
Preliminary services provided by "Adam" at the request of the client as part of an offer may be invoiced to the client if no contract is concluded.
3. Presentation
The development of conceptual and design proposals by “Adam” and their presentation will be subject to a separate presentation fee, unless otherwise agreed in the contract.
Any use, even partial, of the work and services (presentations) presented or provided by "Adam" to a potential client with the aim of concluding a contract, regardless of whether they are protected by copyright, requires the prior consent of "Adam". This requirement of consent also applies to use in modified or edited form and to the exploitation of the ideas underlying "Adam's" work and services, provided these ideas have not been incorporated into previous advertising materials.
Acceptance of a presentation fee does not imply consent to the use of the work and services of "Adam".
If copyright usage and ownership rights to the works presented by "Adam" are fully paid for as agreed, the copyright,
Usage and ownership rights in accordance with the explanations under point 12.
4. Scope of services and order processing
The scope of services for the orders is defined both by the contract and by the product or service description that was current at the time the contract was concluded.
Additional and/or subsequent changes must be in writing.
The designs/samples sent by "Adam" are binding once they have been approved by the client.
The contact persons designated by the client must be authorized to sign, particularly with regard to the approval of budgets, cost estimates, texts, and other coordination processes. Any restrictions on signing authority must be communicated by the client in writing and in a timely manner.
Insofar as “Adam” has commissioned third parties, for example printing companies, to produce and deliver quantities for the client within the framework of the contractual relationship, “Adam” is not liable for over- or under-deliveries up to a scope of 10%.
Templates, files, and other work materials (in particular negatives, models, original illustrations, etc.) that "Adam" creates or has created in order to perform the services owed under the contract remain the property of "Adam". "Adam" is neither obligated to hand them over nor to store them.
5. Loyalty
The obligation of loyalty to the client obligates "Adam" to provide objective advice focused on the client's objectives, as well as to select third-party companies accordingly, e.g., for production processes. Unless the client has expressly reserved the right to participate in the selection process, third parties will be chosen in accordance with the principle of a balanced relationship between cost-effectiveness and achieving the best possible outcome for the client.
6. Non-compete clause
“Adam” undertakes to inform the client about possible conflicts of interest with other clients and, upon request, grants exclusivity for product and service areas to be defined in detail in favor of the client.
7. Outsourcing to third parties
“Adam” is entitled to carry out the tasks assigned to it herself or to commission third parties to do so.
“Adam” is entitled to place orders for the production of advertising materials, in the creation of which “Adam” has contractually participated, on behalf of the client, unless the client expressly reserves this right and notifies “Adam” of this in writing within a period of two weeks from the conclusion of the contract.
If the client has not made an explicit declaration within this two-week period, their silence will be deemed to constitute the granting of a power of attorney, provided they are a merchant as defined by the German Commercial Code (HGB). "Adam" will specifically draw the attention of clients who are not merchants as defined by the HGB to this significance of their conduct and the resulting legal consequences at the time of contract conclusion.
“Adam” places orders in his own name and for his own account.
If quantity discounts or tiered discounts (a tiered repeat discount granted to the advertising company for multiple placements of an (identical) advertising medium in the same advertising medium) are used, the client will receive a subsequent charge if the discount/tier requirements are not met, which is due immediately.
Adam is not liable for defective performance by third parties or the advertising medium. However, in the event of defective performance, Adam undertakes to assign its warranty claims against third parties or the advertising medium to the client as compensation for the exclusion of warranty.
8. Delivery and delivery times
Adam has fulfilled its delivery obligation as soon as the work and services provided by Adam have been dispatched. The client bears the risk of transmission, e.g., damage, loss, delay, regardless of the transmission medium.
Delivery deadlines and delivery dates are only binding if the client has properly fulfilled any obligations to cooperate (e.g., providing documents, approvals, information, creating specifications/statements of work) and the dates have been confirmed in writing by "Adam".
Templates and designs provided by “Die Etagen” are only binding with regard to color, image, line or sound design once their feasibility has been confirmed in writing by “Adam”.
If "Adam" falls behind schedule with its services, it must first be granted a reasonable grace period. After the grace period has expired without remedy, the client may withdraw from the contract. Compensation for damages due to the delay can only be claimed up to the value of the order (excluding advance payments and materials).
The delivery period shall be extended in the event of unforeseen obstacles beyond Adam's control, provided such obstacles demonstrably have a significant impact on the delivery of the goods. The delivery period shall be extended by the duration of such measures and obstacles. Adam will inform the customer immediately of the occurrence and the fact that such an obstacle has been resolved.
Competition law reviews are only the responsibility of "Adam" if they are expressly agreed upon.
Deliveries are made at Adam's expense. However, packaging, freight, postage, insurance, and other shipping costs are not included. These costs will be invoiced to the customer.
If the client defaults on accepting the service or fails to provide or delays any cooperation required of him, “Adam” can invoice the client for the resulting loss of service.
9. Payment terms, late payment
Agreed prices are net prices, to which the applicable value-added tax will be added. Social security contributions for artists, customs duties, or other charges, including those incurred subsequently, will be passed on to the client.
External and incidental costs, such as the costs for engaging photographers, stylists, designers, etc., as well as expenses for telephone, fax, courier, travel expenses, etc., are to be reimbursed separately upon presentation of proof, unless a different agreement has been expressly made.
In the case of advertising placement, the respective list prices of the advertising media valid on the day of publication are binding.
The fee for services provided by "Adam" is payable in full, without deductions such as discounts or rebates, within seven days (receipt of payment) of the invoice date.
Payment should generally be transferred to the account specified in "Adam's" business documents. However, cash payment is also possible.
The client is in default of payment eight days after the invoice date. From this point on, "Adam" charges default interest at a rate of 5 percentage points above the applicable base interest rate, which can be found in the Federal Gazette or online. If no consumer is involved in the transaction, the interest rate is 8 percentage points above the base interest rate.
In addition to default interest, “Adam” reserves the right to claim higher damages for default.
If the client complains that the order has not been properly executed, the payment or, in the case of agreed installment payments, the final installment only becomes due once the complaint has been remedied, either when "Adam" has acknowledged it or, in the case of a dispute, when the validity of the complaint is established in the decision concluding the relevant proceedings.
For each dishonored or returned direct debit, the client, "Adam," is liable for all resulting costs. If the client has granted a direct debit authorization, they are obligated to notify "Adam" immediately of any changes to their bank details.
If the client is a merchant or a legal entity under public law, the withholding of payments due to any counterclaims by the client not recognized by "Adam" is not permissible, nor is offsetting against such claims.
For longer-lasting projects, “Adam” reserves the right to issue partial invoices.
These are intended to delineate the services provided so far.
"Adam" reserves the right to change prices in the case of ongoing contractual relationships, which will be announced with reasonable notice.
For ongoing contractual relationships, service fees are payable pro rata for the remainder of the month, starting on the day the service is provided. Thereafter, these fees are payable monthly in advance by the 3rd business day of each month. The client is obligated to grant Adam a direct debit authorization upon request. Fees for partial calendar months are calculated at 1/30 of the monthly fee for each day. Adam may add a surcharge to the service fees for the following month, based on the increased usage in the previous month (upgrade). Underutilization will be credited in the subsequent invoice.
Objections to invoices from "Adam" must be raised immediately upon receipt of the invoice, but no later than two weeks after the invoice date, without affecting the due date. Failure to raise timely objections will be considered acceptance.
In the event of default on payment of a not insignificant part of the invoice amount or if the payment claim of “Adam” is at risk, “Adam” is entitled to declare all claims immediately due and payable if, after conclusion of the contract, it becomes apparent that a claim to the counter-performance is jeopardized by the lack of solvency of the other party within the meaning of § 321 BGB.
10. Retention of title
“Adam” retains ownership of the delivered goods until full payment has been received.
In the event of breach of contract by the customer, in particular in the event of late payment, “Adam” is entitled to take back the goods after issuing a reminder and the customer is obliged to return them.
11. Cancellation fees, termination of the contract
If the client cancels an order without justification, "Adam" may, without prejudice to the right to claim higher actual damages, demand 10% of the sales price to cover the costs incurred in processing the order and for lost profit. The client retains the right to prove that the actual damages were lower
reserved.
In the case of continuing obligations without a minimum term, the contractual relationship can be terminated by both contracting parties with a notice period of 4 weeks to the end of the quarter.
The right of the contracting parties to terminate the respective contractual relationship prematurely for good cause remains unaffected.
“Adam” may, without prejudice to the statutory provisions, declare extraordinary termination to the client if the client is in arrears with the payment of invoice amounts for two due monthly service fees or a substantial part of two monthly invoices.
The termination of the contractual relationship concerning one service does not affect all other contractual relationships between the contracting parties.
12. Usage rights
Upon settlement of all invoices relating to the order, "Adam" transfers to the client all rights of use necessary for the application of its work and services to the extent agreed upon for the order. In case of doubt, "Adam" fulfills its obligation by granting non-exclusive rights of use within the territory of the Federal Republic of Germany, limited to the duration of the advertising material's use. Any use beyond this, in particular editing and modification, requires the consent of "Adam".
Unless otherwise agreed, usage rights to works that have not been fully paid for upon termination of the contract, or, in the case of commission-based billing, have not yet been published, remain with "Adam".
The client is solely liable for any documents and data they may be required to provide if their use infringes the rights, in particular copyrights, of third parties. The client shall indemnify Adam against all third-party claims arising from such infringement.
13. Imprint
With the client's consent, "Adam" may appropriately indicate its company name on the contracted products. The client may only refuse consent if they have a legitimate interest in doing so.
In publications, Adam GmbH is named as the author in the usual manner.
14. Warranty
The client, if a merchant, must inspect all work and services delivered by "Adam" immediately upon receipt, and in any case within 14 days before further processing, and must report any defects immediately upon discovery. Failure to inspect the goods or services immediately or report defects will result in the client forfeiting any claims.
Adam is liable for the absence of warranted characteristics within the scope of the statutory provisions. Adam provides a warranty for defects that eliminate or diminish the value or suitability for ordinary use or for the use stipulated in the contract.
Adam's warranty obligation is limited to remedying a defect within a reasonable timeframe. The client expressly reserves the right, if the remedy fails, to demand a reduction in payment or rescission of the contract. Failure in the aforementioned sense occurs in particular if the remedy is impossible, if Adam seriously and definitively refuses to carry it out, if it is unreasonably delayed, if attempts to remedy it have been made unsuccessfully, or if, due to the frequency of defects, it is unreasonable for the client to accept it.
The warranty period begins with (partial) acceptance; in other cases, it begins as stipulated by law. The warranty period is three years from the transfer of risk, without prejudice to the statutory commercial obligations to give notice of defects, unless otherwise agreed in writing.
15. Limitation of Liability
If the error is due to a circumstance attributable to "Adam", then "Adam" is liable for any damage incurred by the client as a result, within the framework of the statutory provisions.
Further claims for damages of any kind against "Adam", such as those arising from negligence during contract formation, positive breach of contract, or tort, are limited to cases of intent or gross negligence. In the event of a breach of essential contractual obligations (cardinal obligations), "Adam" is also liable in cases of slight negligence.
The foregoing limitation of liability does not apply to damages resulting from injury to life, body or health, in the case of liability under the Product Liability Act or where Deutsche Post has exceptionally assumed a guarantee.
Within the scope of application of the TKG (Telecommunications Act), the liability rule of § 44a TKG remains unaffected in any case.
The liability for damages is limited in amount to the typically foreseeable damage.
The foregoing limitations of liability also apply in favor of the employees of "Adam".
Claims for damages by the client become statute-barred after one year, notwithstanding the provisions of Section 202 of the German Civil Code (BGB). This does not apply if "Adam" acted with malice, gross negligence, or intent.
“Adam” is not liable for the information transmitted via its services, in particular not for its completeness, accuracy or timeliness, nor for the fact that it is free from third-party rights, or that the sender is acting unlawfully by transmitting the information.
If a damaging event occurs on the transmission routes of a third-party carrier, “Adam” assigns all resulting claims to the client.
Performance delays and disruptions due to force majeure and events that significantly impede or prevent performance for "Adam"
This includes, in particular, strikes, lockouts, official orders, the failure of communication networks and gateways of other operators, disruptions in the services of
Adam is not responsible for delays caused by third-party carriers, even if these delays occur at Adam's suppliers or subcontractors, or at sub-suppliers, subcontractors, or at operators of sub-node computers authorized by Adam, even if deadlines and dates have been contractually agreed upon. Such delays entitle Adam to postpone performance for the duration of the delay, plus a reasonable start-up period. Otherwise, performance is deemed impossible.
Unless otherwise stipulated in these terms and conditions, liability for damages arising from the use of services provided by "Adam" through the transmission and storage of data, and for damages arising from the failure of "Adam" to provide the required storage or transmission of data, is limited to EUR 2,500, unless caused by intent or gross negligence.
The availability of the “Adam” servers and the data paths up to the handover point to the Internet (backbone) is at least 99% on an annual average.
“Adam” is not liable to clients who use “Adam’s” server for commercial purposes such as operating an online shop, offering services, etc., for damages of any kind that have arisen or will arise directly or indirectly from the temporary failure of “Adam’s” server.
Adam hereby informs the client that limitations or impairments to the services it provides may occur that are beyond Adam's control. This includes, in particular, actions of third parties not acting on behalf of Adam, technical conditions of the internet beyond Adam's control, and force majeure. Similarly, the hardware, software, or technical infrastructure used by the client (e.g., a DSL connection from another provider) may also affect Adam's services. Insofar as such circumstances affect the availability or functionality of the services provided by Adam, this does not affect the conformity of the services provided by Die Etagen with the contract.
Adam regularly performs maintenance on its systems to ensure network security, maintain network integrity, service interoperability, and data protection. For this purpose, Adam may temporarily suspend or restrict its services, taking into account the client's interests, insofar as objective reasons justify this. Adam will carry out maintenance work during periods of low usage, where possible. Should longer temporary service suspensions or restrictions be necessary, Adam will inform the client in advance of the nature, extent, and duration of the disruption, provided this is objectively possible under the circumstances and the notification would not delay the resolution of any existing interruptions.
Adam may modify its services to the extent that this is reasonable for the client, taking into account their interests.
16. Right of set-off, reduction and retention, reimbursement
The client, if a merchant or a legal entity under public law, may only offset claims by "Adam" with undisputed or legally established claims. The client may only assert a right of retention due to counterclaims arising from this contract.
“Adam” has a right of retention over all data, templates, manuscripts, materials and other items already provided by the client until all outstanding claims arising from the business relationship have been fully settled.
If a significant disability lasts longer than two weeks, the client is entitled to reduce the monthly fees accordingly from the time the disability began until the next termination date. A significant disability exists if..
a) the client can no longer access the infrastructure of “Adam” and therefore can no longer use the services listed in the order confirmation,
b) the use of these services is significantly impeded overall, or the use of individual services listed in the order confirmation becomes impossible,
or
c) comparable restrictions exist.
No refunds will be issued for service outages caused by disruptions outside of Adam's control. Furthermore, downtime will only be reimbursed if Adam or one of its agents or subcontractors caused the error through at least negligence and the downtime extends over more than one business day. Adam will inform the client immediately of the service unavailability and promptly refund any payments made.
If the client claims that the services billed to him were not caused by him or by third parties for whom he is responsible, he must prove this.
17. Confidentiality, discretion, data protection
The client is hereby informed, in accordance with Section 33 Paragraph 1 of the Federal Data Protection Act and Section 4 of the Telemedia Data Protection Act, that “Adam” processes his company name and address (identity) in machine-readable form for purposes arising from the contract.
“Adam” undertakes to keep secret all information and documents accessible to it in connection with the conclusion of the contract which are designated as confidential or which are clearly recognizable as business or trade secrets of the client under other circumstances, and not to record, pass on or use them – unless required to achieve the purpose of the contract.
“Adam” has ensured, through appropriate contractual agreements with its employees and/or agents, that they too refrain from any independent use, disclosure or unauthorized recording of such business and trade secrets.
The client has corresponding obligations regarding the business and trade secrets of "Adam". This applies in particular to ideas and concepts disclosed during the development phase/collaboration.
The client agrees that personal data (master data) and other information relating to their usage behavior (connection data), such as the time, number, and duration of connections, access passwords, uploads, and downloads, may be stored by "Adam" for the duration of the contract, insofar as this is necessary for fulfilling the purpose of the contract. The client consents to the collection and storage of this data. "Adam" also processes and uses the collected master data for advising its clients, for its own advertising and market research, and for tailoring its services to client needs. The client may object to such use of their data. "Adam" will not disclose this data to third parties without the client's consent. This does not apply if the data is already publicly accessible, if "Adam" is legally obligated to disclose such data to third parties, particularly law enforcement agencies, or if internationally recognized technical standards require disclosure and the client does not object.
18. Password
If the client receives an individual password for accessing the server, they agree, in their own interest, to treat the password confidentially. The client manages passwords and other access data carefully and keeps them secret. They are obligated to pay for services that third parties use or order via their access data and passwords, insofar as they are responsible for this
19. Emails
Adam reserves the right to limit the size of incoming and outgoing emails and UMS messages, provided this is reasonable for the client.
Adam is entitled to delete email messages received in provided accounts a) after they have been retrieved by the client, b) after they have been forwarded according to the client's instructions, c) after they have been stored for 60 days.
However, "Adam" is not obligated to perform the deletion. The client is responsible for preventing their storage from reaching its capacity limit, which would prevent the storage of further electronic messages, by deleting data in a timely manner.
20. Server Terms of Use
The client is responsible for ensuring that their domain(s) and content do not violate any legal regulations or the rights of third parties. "Adam" points out that, particularly with international domains, other national legal systems may need to be observed.
The client agrees not to offer any domains or content for retrieval that are of an extremist (especially right-wing extremist) nature or contain pornographic or commercial erotic content. This also applies if such content is made accessible through hyperlinks or other links that the client places on third-party websites. Sending spam emails is prohibited. This includes, in particular, sending unsolicited advertising to third parties. When sending emails, it is also prohibited to provide false sender information or to otherwise conceal the sender's identity. The client is obligated to clearly indicate the commercial nature of any email communication through appropriate design. The client is responsible
for ensuring that they do not exceed any limited scope of included services, unless otherwise contractually agreed upon. If "Adam" determines that a customer's traffic volume exceeds the limit stipulated in their web hosting contract by more than 10 percent in a given month, they will inform the customer. They may then offer the customer the option of upgrading to the next higher contract (e.g., a more comprehensive web hosting package) with a correspondingly higher traffic volume. Should the customer decline this upgrade, "Adam" may terminate the existing contract with two weeks' notice.
21. Special conditions regarding the rental of servers and related services
Insofar as "Adam" provides software to the client, "Adam" is not obligated to provide new versions, in particular updates, releases or patches, unless otherwise agreed.
The hardware required for using the commissioned services will be provided by the client and is not part of the contract. Any hardware modifications required after the contract is signed will be the client's responsibility.
22. Place of performance and jurisdiction
The place of performance and jurisdiction for all claims and legal disputes arising from the contractual relationship is Osnabrück, provided the client is a registered merchant, a legal entity under public law, or a special fund under public law. This jurisdiction also applies to persons other than those mentioned above if the client has no general place of jurisdiction within Germany, relocates their residence and/or place of business outside of Germany immediately after conclusion of the contract, or if their residence and/or place of business or habitual abode is unknown at the time the action is brought.
German law applies exclusively, even if the client's company headquarters are located abroad.
23. Other
Changes and additions to orders must be in writing. This also applies to any amendment of this written form clause.
Oral side agreements are not legally binding.
Should any provision be or become invalid, the validity of the other provisions shall remain unaffected.
The parties are obliged to replace invalid or missing provisions with an effective provision that comes closest to the economic intent of the invalid one.
Emails are considered delivered when they have been accepted by the recipient's mail server. Encryption or signing of messages and data only occurs upon explicit written agreement.
The transfer of rights and obligations arising from this contract is only permitted to the client with the written consent of "Adam".
Within the scope of application of the Telecommunications Customer Protection Ordinance, any mandatory provisions of that ordinance take precedence over conflicting regulations. The Product Liability Act remains unaffected, as do manufacturer warranties.
Adam generally operates solely on the basis of its terms and conditions. These terms and conditions are deemed accepted upon first accessing Adam's network or using Adam's services.
"Adam" is entitled to include meta information in the pages it creates and/or modifies, particularly regarding copyright notices and trademarks in a broader sense, as well as copyright and related rights. In case of doubt, the contracting parties will not consider such information as editorial processing of the documents. The inclusion of this meta information does not imply any assumption of editorial responsibility. If "Adam" is or becomes legally obligated to disclose information on websites, either openly or as meta data, "Adam" may, at its reasonable discretion, comply with this request if the client fails to do so within a reasonable timeframe
or if there is “imminent danger”, Adam is entitled to store this information even without the express consent of the client, insofar as it is known to Adam, or to take the internet pages offline until the information has been legally stored by the client.