Terms and Conditions

Adam GmbH

Terms and Conditions

1. General

The business relationship between Adam GmbH (hereafter also referred to as “Adam”) and its clients is exclusively governed by the following terms and conditions in their version valid at the time the order is placed. Clients can access these terms and conditions at any time via the web address www.adam-ki.de and print them out or save them on their computer using their internet browser.

The subject of the following terms and conditions (T&Cs) are services and/or works provided by Adam GmbH. The specific type of services and works is determined by the concept developed by Adam GmbH, the offer, the action suggestions, or the individual orders.

Client conditions that deviate from these are not recognized unless “Adam” explicitly agrees to them in writing. This also applies if the client’s business and/or delivery conditions have not been expressly objected to.

“Adam” may change these general terms and conditions and additional special terms and conditions subsequently. In such a case, “Adam” will notify the client of the changed conditions and highlight the changes. If the client does not agree with these changes, they may object within one month of receiving the notification of the changes. If no objection is made during this period, the changes are considered approved, provided the client is a merchant within the meaning of the German Commercial Code (HGB). “Adam” will specifically inform the client of the right to object, the significance of the client’s behavior, and the resulting legal consequences in the notification of the changes, provided the client is not a merchant in the sense of the HGB.

These T&Cs are an integral part of every contract concluded, unless otherwise agreed in individual cases. They also apply to future business relations with the client without the need for their explicit inclusion again.

2. Conclusion of Contract

The offers from “Adam” are subject to change and non-binding.

A contract is only concluded when the contract has been concluded in writing, the client’s order has been confirmed in writing by “Adam”, or “Adam” has started execution.

Preparatory services that “Adam” provides at the client’s request as part of an offer may be invoiced to the client if no contract is concluded.

3. Presentation

The development of conceptual and creative proposals by “Adam” and their presentation is – unless otherwise agreed in orders – subject to a separate presentation fee.

Any use, even partial, of the works and services presented or handed over by “Adam” to the potential client with the aim of concluding a contract, regardless of whether they are protected by copyright, requires the prior consent of “Adam”. This reservation of consent also applies to the use in an altered or edited form and for the exploitation of the ideas underlying the works and services of “Adam”, provided that these have not been reflected in previous advertising materials.

The acceptance of a presentation fee does not constitute consent to the use of the works and services of “Adam”.

If copyrights, usage, and ownership rights to the works presented by “Adam” during presentations are fully paid according to the agreement, the copyrights, usage, and property rights are transferred accordingly, as outlined in section 12.

4. Scope of Services and Order Processing

The scope of the orders is determined both by the contract and by the product or service description current at the time of contract conclusion.

Additional and/or subsequent changes require written form.

The drafts/samples sent by “Adam” are binding once they have been approved by the client.

The client’s contact persons named must be authorized, especially regarding the approval of budgets, cost estimates, texts, and other coordination processes. Restrictions on the authorization must be communicated to “Adam” in writing by the client in a timely manner.

Insofar as “Adam” has commissioned third parties, such as printers, to produce and deliver quantities for the client within the framework of the contractual relationship, “Adam” is not liable for over or under deliveries within a range of up to 10%.

Templates, files, and other working materials (especially negatives, models, original illustrations, etc.) created or commissioned by “Adam” to perform the service owed under the contract remain the property of “Adam”. “Adam” is neither obligated to hand these out nor to store them.

5. Loyalty Bond

The loyalty bond to the client obligates “Adam” to provide objective advice aimed at the client’s goals and to select third-party companies accordingly, e.g., for production processes. Unless the client has expressly reserved the right of co-determination, the selection of third parties is made based on the principle of a balanced ratio of cost-effectiveness and the best possible success in the interest of the client.

6. Non-Competition

“Adam” commits to inform the client about potential competition conflicts with other clients and provides non-competition exclusivity for specifically defined product and service areas at the client’s request.

7. Commissioning Third Parties

“Adam” is authorized to carry out the tasks assigned to it or to commission third parties to do so.

“Adam” is entitled to issue orders for the production of advertising materials, to which “Adam” has contributed according to the contract, in the name of the client, unless the client has expressly reserved this right and has communicated this information to “Adam” in writing within a period of two weeks from the conclusion of the contract.

If the client has not made an explicit statement within this two-week period, their silence is considered as granting a power of attorney, provided they are a merchant within the meaning of the HGB. “Adam” will inform the client, who is not a merchant in the sense of the HGB, about the significance of their behavior and the resulting legal consequences at the time of contract conclusion.

Orders are placed by “Adam” in its own name and on its own account.

If quantity discounts or step discounts (a staggered repeat discount granted to the advertising company for multiple placements of the same advertising material in the same media) are used, the client will receive a subsequent charge if the conditions for the discount or step are not met, which is immediately due.

For defective services by third parties or the media, “Adam” is not liable. However, “Adam” commits to replace the warranty exclusion by assigning its warranty claims against third parties or the media to the client in case of a defective service.

8. Delivery and Delivery Deadlines

“Adam” has fulfilled its delivery obligation as soon as the works and services of “Adam” have been dispatched. The client bears the risk of transmission, e.g., damage, loss, delay, regardless of the medium used for transmission.

Delivery deadlines and dates are only binding if the client has properly fulfilled any co-operation duties (e.g., procurement of documents, approvals, provision of information, creation of service catalogs/specification sheets) and the dates have been confirmed in writing by “Adam”.

Templates and drafts provided by “Adam” are binding in terms of color, image, line, or sound design only when their respective implementation possibility has been confirmed in writing by “Adam”.

If “Adam” is in default with its services, a reasonable grace period must first be granted. After the grace period has expired fruitlessly, the client can withdraw from the contract. Compensation for delay damages can only be claimed up to the amount of the order value (own services excluding pre-services and materials).

The delivery period is extended in the event of unforeseen obstacles that are beyond the control of “Adam”, provided that such obstacles have a significant impact on the delivery of the delivery item. The delivery period is extended accordingly for the duration of such measures and obstacles. “Adam” will promptly inform the client of the occurrence and the fact that such an obstacle has been remedied.

Competition law reviews are only tasks of “Adam” if they have been expressly agreed upon.

Deliveries are made at the expense of “Adam”. However, packaging, freight, postage, insurance, and other shipping costs are not included. These costs will be invoiced to the client.

If the client is in default with the acceptance of the service or fails to cooperate or delays necessary cooperation, “Adam” can invoice the client for the resulting loss of service.

9. Payment Terms, Default of Payment

Agreed prices are net prices, to which the respective valid value-added tax is added. Artist social contributions, customs duties, or other charges arising subsequently are passed on to the client.

Third-party and incidental costs, such as costs for engaging photographers, stylists, designers, etc., as well as expenses for telephone, fax, courier, travel expenses, etc., are to be reimbursed separately based on proof, unless expressly agreed otherwise.

For advertising mediation, the valid list prices of the media on the day of publication are binding.

The fee for the performance of “Adam” is to be paid in full, free of charges for “Adam”, without deductions such as discounts or rebates, within seven days (receipt of payment) after invoicing.

The fee is generally to be transferred to the account specified on the business documents of “Adam”. However, cash payment is also possible.

The client is in default of payment eight days after invoicing. From this point on, “Adam” charges default interest at a rate of 5 percentage points above the current base interest rate, which can be taken from the Federal Gazette or the internet. If no consumer is involved in the legal transaction, the interest rate is 8 percentage points above the base interest rate.

In addition to the default interest, “Adam” reserves the right to claim a higher damage caused by default.

If the client complains that the order has not been properly executed, the due date of the fee or, in the case of agreed installment payments, the last installment is only due after the complained defect has been remedied, provided “Adam” has either acknowledged this or, in the event of a contentious dispute, the entitlement of the complaint has been established in the decision concluding the respective procedure.

For each direct debit not honored or returned, the client must reimburse “Adam” the full amount of the costs incurred. If the client has granted a direct debit authorization, he is obligated to notify “Adam” immediately of any changes to his bank details.

If the client is a merchant or a legal entity under public law, withholding payments due to any counterclaims of the client not acknowledged by “Adam” is not permissible, nor is offsetting against such.

For long-term 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 ongoing obligations, which will be announced with reasonable notice.

In ongoing obligations, service fees are to be paid proportionally for the remainder of the month from the day of service provision, and thereafter, these fees are to be paid monthly in advance by the 3rd working day of each month, whereby the client is obligated, upon request by “Adam”, to grant a direct debit authorization. Fees for parts of a calendar month are calculated at 1/30 of the monthly fee for each day. “Adam” may add a surcharge for additional expenses to the service fees for the following month, based on the previous month’s additional expenses (upgrading). Reduced consumption will be adjusted in the subsequent invoice.

Objections to fee invoices from “Adam” must be raised immediately upon receipt of the invoice, but no later than 2 weeks after the invoicing or invoice date, without affecting the due date, however. The failure to make timely objections is considered approval.

In the event of default in payment with a significant part of the invoice amount or if the payment claim of “Adam” is jeopardized after the conclusion of the contract due to the lack of performance ability of the other party within the meaning of § 321 BGB, “Adam” is entitled to make all claims due immediately.

10. Retention of Title

“Adam” retains ownership of the delivery items until full payment has been made.

In the event of contractual misconduct by the buyer, especially in the case of default in payment, “Adam” is entitled to withdraw after a reminder, and the buyer is obliged to surrender.

11. Cancellation Costs, Termination of the Contract

If the client unjustifiably withdraws from an order placed, “Adam”, without prejudice to the possibility of claiming a higher actual damage, can demand 10% of the sales price for the costs incurred by processing the order and for lost profits. The client reserves the right to prove a lesser damage.

In ongoing 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” can declare extraordinary termination to the client, without prejudice to statutory provisions, if the client is in default of payment of invoice amounts for two due monthly service lump sums or a significant part of two monthly invoices.

The termination of the contractual relationship regarding a service does not affect all other contractual relationships between the contracting parties.

12. Usage Rights

“Adam” transfers to the client all necessary usage rights for the use of its works and services with the settlement of all invoices concerning the order to the extent agreed upon for the order. In case of doubt, “Adam” fulfills its obligation by granting non-exclusive usage rights in the territory of the Federal Republic of Germany limited to the time of use of the advertising material. Any further use, especially editing and alteration, requires the consent of “Adam”.

Usage rights to works that have not been fully paid at the end of the contract or have not been published in the case of billing on a commission basis, remain with “Adam” subject to other agreements made.

For documents and data to be procured by the client, the client alone is liable if the use violates rights, especially copyrights of third parties. The client shall indemnify “Adam” from all third-party claims due to such infringement.

13. Imprint

“Adam” may indicate its company in a suitable manner on the contract products with the client’s consent. The client can only refuse consent if he has a legitimate interest.

In publications, Adam GmbH is usually named as the author.

14. Warranty

Works and services delivered by “Adam” must be inspected by the client immediately upon receipt, in any case, however, before any further processing within 14 days, and defects must be reported immediately upon discovery. If immediate inspection or notification of defects is omitted, the client has no claims.

“Adam” is liable for the absence of assured properties within the framework of the legal provisions. For errors that eliminate or reduce the value or suitability for ordinary use or the use presumed according to the contract, “Adam” provides a warranty.

The warranty obligation of “Adam” is limited to the rectification of a fault within a reasonable period. The client is expressly reserved the right to demand a reduction of the fee or cancellation of the contract in case of a failure of the rectification. A failure in the aforementioned sense particularly exists if the rectification is impossible, if it is seriously and finally refused by “Adam”, if it is unreasonably delayed, if it has been attempted in vain, or if it is unreasonable for the client due to the accumulation of defects.

The warranty period begins with the (partial) acceptance, in other cases as legally regulated. The warranty period is three years from the transfer of risk, without prejudice to the legal commercial obligation to give notice of defects, unless another written agreement has been made.

15. Limitation of Liability

If the defect is due to a circumstance attributable to “Adam”, “Adam” is liable for any damage arising therefrom within the framework of the legal provisions.

Further claims for damages of any kind against “Adam”, such as from culpa in contrahendo, positive breach of contract, or tort are limited to cases of intent or gross negligence. In the event of the breach of essential contractual obligations (cardinal obligations), “Adam” is also liable in the case of slight negligence.

The aforementioned limitation of liability does not apply to damages resulting from injury to life, body, or health, under liability according to the Product Liability Act, or insofar as the German Post has exceptionally assumed a guarantee.

Within the scope of the TKG (Telecommunications Act), the liability rule of § 44a TKG remains unaffected in any case.

The liability for damages is limited to the typically foreseeable damage.

The above liability limitations also apply in favor of the employees of “Adam”.

Claims for damages by the client expire one year after the statutory limitation period, unless “Adam” has acted with deceit, gross negligence, or intent.

“Adam” is not liable for the information transmitted over its services, especially not for their completeness, correctness, or timeliness, nor for the fact that they are free from third-party rights, or that the sender acts unlawfully by transmitting the information.

If a damaging event has occurred on transmission paths of a third-party carrier, “Adam” assigns all resulting claims to the client free of charge.

Performance and delays in performance due to force majeure and events that significantly hinder or make it impossible for “Adam” to perform

• including in particular strike, lockout, official orders, the failure of communication networks and gateways of other operators, disruptions in the area of services of

third-party carriers, even if they occur at suppliers or subcontractors of “Adam” or their subcontractors, or at operators of sub-nodes authorized by “Adam” -, are not the responsibility of “Adam”, even in the case of binding deadlines and dates. These entitle “Adam”, if necessary, to postpone the performance for the duration of the delay, plus a reasonable start-up time. Otherwise, a case of impossibility exists.

Unless other provisions in these terms and conditions exclude liability, it is limited in the case of damages caused by the use of services of “Adam” through the transmission and storage of data, and in cases of damage caused because the required storage or transmission of data by “Adam” did not occur, to an amount of 2,500 EUR, unless intent or gross negligence exists.

The availability of the “Adam” servers and the data paths to the handover point into the Internet (backbone) is at least 99% on average per year.

“Adam” is not liable to clients who use the server of “Adam” for commercial purposes, such as operating an internet shop, service offerings, etc., for any damages of any kind that directly or indirectly result from the temporary failure of the server of “Adam”.

“Adam” hereby informs the client that restrictions or impairments of the services provided by it can occur, which are outside the influence of “Adam”. This includes in particular actions of third parties who do not act on behalf of “Adam”, technical conditions of the Internet not influenced by “Adam”, and force majeure. Similarly, the hardware and software used by the client or technical infrastructure (e.g., a DSL connection from another provider) can also affect the services of “Adam”. As far as such circumstances influence the availability or functionality of the services provided by “Adam”, this has no effect on the conformity of the services provided by “Die Etagen”. “Adam” regularly carries out maintenance work on its systems for the security of network operations, to maintain network integrity, the interoperability of services, and data protection. For this purpose, it may temporarily suspend or restrict its services, provided objective reasons justify this. “Adam” will perform the maintenance work, as far as possible, during low-usage times. Should longer temporary service suspensions or restrictions be necessary, “Adam” will inform the client in advance about the type, extent, and duration of the impairment, as far as this is objectively possible and the notification does not delay the elimination of interruptions that have already occurred. “Adam” may change its services, provided this is reasonable for the client considering the client’s interests.

16. Offsetting, Reduction, and Retention Right, Rebate

Against claims by “Adam”, the client, who is a merchant or a legal entity under public law, can only offset with undisputed or legally established claims. The client is entitled to assert a right of retention only because of counterclaims from this contract.

“Adam” has a right of retention on all data, templates, manuscripts, materials, and other items provided by the client until the complete fulfillment of all due claims from the business relationship.

If a significant hindrance lasts longer than two weeks, the client is entitled to reduce the monthly fees from the time of the occurrence of the hindrance until the next termination date accordingly. A significant hindrance exists if

a) the client can no longer access the infrastructure of “Adam” and thus 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.

In the event of service outages due to a disturbance outside the responsibility of “Adam”, no rebate of fees will be granted. Otherwise, outage times are only reimbursed if “Adam” or one of its agents caused the error at least negligently and the outage period extends over more than one working day. “Adam” will inform the client immediately about the unavailability of the service and promptly reimburse the corresponding consideration.

If the client claims that the services invoiced to him were not caused by him or third parties for whom he is responsible, he must prove this.

17. Confidentiality, Secrecy, Data Protection

The client is hereby informed in accordance with § 33 Abs. 1 of the Federal Data Protection Act as well as § 4 of the Teleservices Data Protection Act that “Adam” processes and stores his company and address (identity) in machine-readable form and for tasks arising from the contract, mechanically.

“Adam” commits to keep all information and documents accessible to it in connection with the conclusion of the contract, which are designated as confidential or clearly recognizable as business or trade secrets of the client due to other circumstances, confidential and – unless necessary to achieve the purpose of the contract – neither to record nor to pass on or exploit.

“Adam” has ensured through appropriate contractual agreements with the employees and/or agents working for it that they also refrain from any own exploitation, passing on, or unauthorized recording of such business and trade secrets.

Corresponding obligations apply to the client concerning business and trade secrets of “Adam”. This applies in particular also to the ideas and concepts made known during the development phase/cooperation.

The client agrees that personal data (inventory data) and other information concerning his usage behavior (connection data), such as the time, number, and duration of connections, access passwords, up- and downloads, are stored by “Adam” during the duration of the contract, as far as this is necessary to fulfill the purpose of the contract. With the collection and storage, the client declares his consent. The collected inventory data is processed and used by “Adam” also for advising its clients, for its own advertising, and for market research for its own purposes and for the needs-based design of its services. The client can object to such use of his data. “Adam” will not pass on this data to third parties without his consent. This does not apply insofar as the data are already publicly accessible or “Adam” is legally obliged to disclose such data to third parties, especially law enforcement authorities, or as far as internationally recognized technical standards provide this and the client does not object.

18. Password

If the client receives an individual “password” for access to the server, he assures, in his own interest, to treat the password confidentially. The client manages passwords and other access data carefully and keeps them secret. He is obligated to pay for services that third parties use or order via his access data and passwords, as far as he is responsible for this.

19. E-mails

“Adam” reserves the right to limit the size of incoming and outgoing messages for e-mails and UMS, provided this is reasonable for the client. “Adam” is entitled to delete e-mail messages received on accounts provided, a) after they have been retrieved by the client, b) after they have been forwarded according to client instructions, c) after they have been stored for 60 days.

However, “Adam” is not obligated to carry out the deletion. The client is responsible for preventing his storage from reaching capacity limits by timely deletion, resulting in the non-acceptance of further electronic messages.

20. Server Usage Conditions

The client is responsible for ensuring that his domain(s) and his content do not violate legal regulations or third-party rights. “Adam” points out that possibly – especially with international domains – other national legal systems must be observed. The client commits not to offer domains or content for retrieval that are of an extremist (especially right-wing extremist) nature or contain pornographic or commercial erotic offers. This also applies if such content is made accessible through hyperlinks or other connections that the client places on third-party pages. The sending of spam mails is prohibited. This includes, in particular, the sending of impermissible, unsolicited advertising to third parties. When sending e-mails, it is also prohibited to provide false sender data or to disguise the sender’s identity in any other way. The client is obligated to make the commercial nature of the communication clear through an appropriate design of the e-mail.

The client ensures that he does not exceed quantity-limited inclusive services, unless an exceedance has been contractually agreed upon. If “Adam” determines that the traffic volume of a client of a web hosting package exceeds the framework provided for the corresponding contractual relationship by more than 10 percent in a month, she will inform the client about this. She can then offer the client to conclude the next higher contractual relationship (e.g., a higher-value web hosting package) with a correspondingly higher traffic volume. Should an offer to switch to the next higher contractual relationship be rejected by the client, “Adam” can terminate the contractual relationship with a notice period of two weeks.

21. Special Conditions Concerning the Rental of Servers and Related Services

As far as “Adam” provides software to the client, “Adam” is not obligated to provide new versions, especially updates, releases, or patches, unless otherwise agreed.

The hardware required for the use of the commissioned services is provided by the client and is not part of the contract. Should adjustments to the hardware become necessary after the conclusion of the contract, these lie within the responsibility of the client.

22. Place of Performance and Jurisdiction

The place of performance and jurisdiction for all claims and disputes arising from the contractual relationship is Osnabrück if the client is a full merchant or a legal entity under public law or a public-law special fund. The jurisdiction also applies to other than the aforementioned persons if the client does not have a general place of jurisdiction in Germany, immediately after the conclusion of the contract relocates his residence and/or business location from Germany, or if his residence and/or business location or habitual residence is not known at the time of the filing of the lawsuit.

German law applies exclusively, even if the client has his company headquarters abroad.

23. Miscellaneous

Changes and additions to orders require written form. This also applies to the amendment of this clause on written form.

Oral side agreements are not legally binding.

If a provision is or becomes void, the validity of the other provisions remains unaffected.

The parties are obligated to replace void or missing provisions with an effective provision that comes closest to the economic intent of the ineffective one.

E-mails are considered delivered when they have been accepted by the recipient’s mail server. Encryption or signature of messages and data is only carried out upon explicit written agreement.

The transfer of rights and obligations from this contract is permitted to the client only with the written consent of “Adam”.

In the area of application of the Telecommunications Customer Protection Ordinance, its possibly mandatory law prevails over contrary provisions of these conditions. The Product Liability Act also remains unaffected, as do manufacturer guarantees.

“Adam” usually acts only based on its General Terms and Conditions. Already with the first access to the network of “Adam” or use of the services of “Adam”, these conditions are considered accepted.

“Adam” is entitled to include META information in the pages created and/or changed by it, especially concerning copyright and trademark rights in the broader sense as well as copyright and performance protection rights. Such information is not considered editorial processing of the documents by the contracting parties. The assumption of editorial responsibility is not associated with the introduction of this META information. If “Adam” is legally obligated to disclose information on internet pages openly or as META data, “Adam” is entitled, insofar as the client does not comply with “Adam”‘s request within a reasonable period or if “danger in delay” exists, to also store this information without the express consent of the client, as far as it is known to “Adam”, or, until the legally valid storage of the information by the client, to take the internet pages off the network.