1. Subject matter
1.1 These General Terms and Conditions for Consulting Services (hereinafter referred to as “Terms and Conditions”) of Acceleraid/ADTELLIGENCE GmbH, Elisabethstrasse 1, D-68165 Mannheim (hereinafter referred to as “ADTELLIGENCE”) govern the rendering of consulting and services in accordance with the scope of services laid down in the ADTELLIGENCE Consultancy Agreement (hereinafter referred to as “Consultancy Agreement”).
1.2 Terms and conditions of the customer (hereinafter referred to as “Customer”) which are contrary to or deviate from our Terms and Conditions are not recognized and their validity is contradicted. They shall only apply if and insofar as ADTELLIGENCE GmbH has expressly agreed to them in writing.
1.3 Unless agreed otherwise in the Consultancy Agreement, the contractually agreed performance is provided as services.
1.4 The contract shall take effect on the signing of the Consultancy Agreement by the Customer and ADTELLIGENCE. Individual agreements remain unaffected.
2. Remuneration
2.1 Consulting services are provided at the remuneration agreed in the Consultancy Agreement. Unless agreed otherwise, the remuneration shall be based on time and materials expended.
2.2 The daily rate covers a work performance of 8 hours per day. The daily rates refer to services rendered from Monday to Friday between 8:30 a.m. and 5:30 p.m. (workdays only).
2.3 Outside of these hours the respective daily or hourly rate shall be increased as follows:
– for night work and Saturday work 50%
– for Sunday and holiday work 100%
Work to be performed outside of the hours of Monday to Friday between 8:30 a.m. and 5:30 p.m. can only be part of a Consultancy Agreement if the rendering of services at these times is permitted by law.
2.4 In the case of invoicing according to the amount of time expended, the employees of ADTELLIGENCE shall keep track of their daily work in an activity report. The activity report shall be submitted to the Customer for approval of the factual accuracy. The Customer agrees to review and sign off the activity report within 3 working days.
2.5 Settlement of the services rendered takes place after the services are rendered for all services that are rendered in a period of less than one month. If the rendering of services extends for a period of more than 1 month, the settlement shall be effected at the end of each month by the 15th day of the following month.
2.6 If a fixed price has been agreed, 100% of the fixed price shall be due on receipt of the order at ADTELLIGENCE.
2.7 The agreed remuneration shall be owed in full irrespective of the actual call-off of services by the client. Partial or complete non-utilization of the agreed services by the client shall not entitle the client to reduce or reclaim the remuneration.
2.8 Waiting periods and telephone answering services shall be deemed to be working time and will be invoiced accordingly. Travel time is regarded as working hours.
3. Travel expenses principles
3.1 In addition to the agreed remuneration, in the case of travel exceeding a distance of 30 kilometers from the office of
ADTELLIGENCE referred to above, the following costs are due and payable for each employee deployed by ADTELLIGENCE:
– For travel, the costs actually incurred are charged from the office of ADTELLIGENCE (when traveling by car using a rate of EUR 0.50 per km). ADTELLIGENCE is responsible for selecting the mode of transport.
– Accommodation costs will be charged at cost against proof. The price will not exceed EUR 175.- per night in Germany; EUR 300.- abroad.
– Expenses are invoiced at the respective maximum permissible fiscal rates.
3.2 All travel expenses, and if necessary accommodation costs, are to be paid for separately. Flight and travel expenses on public transport, as well as overnight stays, are charged based on actual costs incurred.
3.3 For flights, in principle, the lowest fare is to be booked. To meet project deadlines, either Economy or Business Class is to be booked. This must be agreed with the customer in advance. For flights over 500 km Business Class is to be booked.
3.4 For all train rides, the 2nd class is to be booked. For
journeys over 250 km, 1st class is to be booked.
3.5 For the travel to and from the train station and/or airport taxies are to be used, or, if available, direct connections with express trains or UBER or other mobility services.
4. IT
4.1 Costs for remote support like professional video conferencing tools e.g. Teams, Zoom, WebEx or other services that are used from third-party providers, will be charged via invoice.
5. Terms of payment, default, setoff
5.1 Invoices are payable without deduction within ten (10) calendar days of the invoice date, but not prior to receipt of invoice.
5.2 All prices are stated exclusive of the applicable VAT at the time of performance. If during the period of calculation the value added tax rate is modified, the periods with differing applicable VAT rates are treated as separate calculation periods.
5.3 The Customer is only entitled to offset if his counterclaim is undisputed or legally binding. This does not apply to claims which relate to the removal of defects or project completion costs.
5.4. In the case of late payment, 7% interest per month applies to the amount due.
6. Performance, cooperation of the Customer
6.1 The Customer shall designate a competent contact person who furnishes ADTELLIGENCE with the necessary information in due time, provides the required records, designates other contacts and is able to make or initiate decisions. ADTELLIGENCE shall involve the contact person if and insofar as is necessary for fulfilling the contract. ADTELLIGENCE shall also designate on its part a person responsible for the project who will prepare coordinating measures and initiate decisions without delay.
6.2 Insofar as ADTELLIGENCE must rely on the Customer’s cooperation for the fulfillment of the Consultancy Agreement, the latter shall provide all cooperation necessary to the best of his ability.
6.3 Insofar as ADTELLIGENCE carries out its duties at the Customer’s location, the latter shall create in a timely manner and free-of-charge all such necessary conditions in its sphere of operations as are required to render performance and shall maintain these for the duration of the performance of the service. In particular, he shall provide the required cooperation measures in full, in a way which is fully in accordance with quality requirements, in good time and, if required,
– provide suitable working places, including PC with internet access and telephone,
– in connection with the rendering of performance, make available the required hardware and software and additional tools in a condition ready for operation within the scope of normal working hours and in keeping with company access regulations,
– take responsibility for the operating as well as for the maintenance of the systems (operating systems and other software products used), and
– obtain the required approvals, authorizations and
access rights.
The Customer shall inform ADTELLIGENCE about commitments with regard to specific times of use, in particular the restriction of usage times, in a timely manner.
6.4 In case of delays and/or additional costs incurred by ADTELLIGENCE as a result of the Customer failing to cooperate properly or in a timely manner, ADTELLIGENCE is entitled to demand amendment of the agreed time schedule or the agreed remuneration without prejudice to further legal rights.
6.5 Within the scope defined by the Consultancy Agreement, ADTELLIGENCE shall determine and be responsible how, in what way, at what place and by whom the corresponding Consultancy Agreement is fulfilled. The Customer shall not be entitled to issue any instructions. However, ADTELLIGENCE shall endeavor to take into account the Customer’s wishes. Insofar as such wishes are associated with more effort and expenses, ADTELLIGENCE may demand corresponding adjustments to the relevant agreed remuneration and time schedules.
6.6 ADTELLIGENCE may outsource consulting services to selected independent subcontractors. The existing obligations under a Consultancy Agreement shall apply to the same extent for the personnel of a subcontractor as they apply for personnel of ADTELLIGENCE.
6.7 ADTELLIGENCE shall notify the Customer of any foreseeable delays as soon as they become noticeable for ADTELLIGENCE. ADTELLIGENCE shall inform the Customer in due time of any completion date in risk of being exceeded.
6.8 If ADTELLIGENCE fails to meet deadlines due to causes for which ADTELLIGENCE cannot be held responsible, in particular strike or lockout or failure to cooperate with the Customer, ADTELLIGENCE shall be entitled to request a reasonable postponement.
7. Changes in performance / change request
7.1 Each contractual party may demand from the other contractual party modification of the stipulated scope of service in writing. Upon receipt of the change request, the recipient shall review the change to decide whether and under what conditions the change can be made, and promptly notify the requester in writing of recipient’s approval or refusal, stating reasons, as applicable.
7.2 If a change request by the Customer requires an extensive review, ADTELLIGENCE is entitled to submit an invoice for the required cost and effort.
7.3 The contractual adjustments necessary for such a review and/or for an amendment to the agreed Terms and Conditions and performance shall be stipulated in an addendum to the Consultancy Agreement and shall take effect pursuant to paragraph 1.4.
7.4 In case of an amended scope of services affecting the specifications or another document already adopted, ADTELLIGENCE shall, at the expense of the Customer, update the changes therein.
7.5 Should the contractual parties fail to come to an agreement with regard to the implementation of changes, ADTELLIGENCE shall continue work in accordance with the existing Consultancy Agreement without the corresponding changes.
8. Acceptance of work performance
8.1 If the parties have stipulated in the Consultancy Agreement that consulting services are to be rendered as work performance, ADTELLIGENCE shall submit proof to the Customer at the cutoff date – insofar as stipulated in the Consultancy Agreement– of fulfillment of the performance features according to set terms of acceptance. Insofar as required for acceptance, the Customer shall provide the necessary test data and test scenarios.
8.2 If required, in particular in the case of complex work performance, the parties may agree in writing that specific acceptance criteria shall be established. In this case, ADTELLIGENCE shall develop specific acceptance criteria and submit them to the Customer for approval. The Customer shall declare consent thereto in writing within 7 working days vis-à-vis ADTELLIGENCE or request changes. Insofar ADTELLIGENCE can reasonably be expected to take the requested changes into account; ADTELLIGENCE shall modify the acceptance criteria accordingly and submit them again to the Customer for approval. If after that no agreement can be reached on specific acceptance criteria, acceptance shall be effected without taking into account specific acceptance criteria.
8.3 The Customer agrees to promptly review the work performance ready for acceptance and, in case of conformity with the agreement, promptly declare acceptance in writing in the form of an acceptance report. The review in particular requires an audit of the parts to be deployed at the end month, at the end of the year or otherwise from time to time.
8.4 The use of the work performance without reservation (live operation) is deemed acceptance. Acceptance shall also be deemed declared if after a period of 10 working days following the notification of readiness for acceptance by ADTELLIGENCE no major defects have been reported in writing and ADTELLIGENCE upon declaring the readiness for acceptance has made express reference to this deadline and the legal consequences in case the deadline passes without result.
8.5 For acceptance, the following defect categories are agreed:
Category 1
Due to the defect, the contractual use is impossible, unreasonably restricted or excluded. The defect cannot be worked around by an organizational or any other measure of remedy.
Category 2
The contractual use is not affected in such a way that the acceptance test can nevertheless not be continued. Such defects shall be remedied as far as possible during the agreed duration of the acceptance test or circumvented by a workaround so that acceptance is possible.
Category 3
The contractual use is only marginally restricted.
The final allocation of a defect to one of the above error categories takes place by mutual consent of the contractual parties.
8.6 The Customer is entitled to refuse declaration of acceptance if defects of error category 1 are present. Defects of error category 2 and 3 do not entitle the Customer to refuse acceptance. Remedying of defects of error category 2 shall largely be effected during the acceptance process. Defects remaining after acceptance shall be remedied by ADTELLIGENCE within the warranty term pursuant to paragraph 7 in accordance with a schedule to be coordinated by the contractual parties.
8.7 The acceptance period can neither be extended nor can acceptance be refused due to defects in devices and programs of other manufacturers, which are not part of the performance to be rendered by ADTELLIGENCE with regard to the Consultancy Agreement. The same shall apply for operating errors, for which ADTELLIGENCE or its subcontractors are not responsible.
9. Claims of defect of quality
9.1 For services, the Customer is not entitled to claims due to material defects or defects in title.
9.2 ADTELLIGENCE shall warrant that work performance exhibits the qualities agreed in the Consultancy Agreement. ADTELLIGENCE has no obligation to provide additional functionality.
9.3 The Customer shall inform ADTELLIGENCE in writing of material defects, detailing the circumstances under which they occurred and their impact. ADTELLIGENCE shall remedy these defects within a reasonable time period or provide a workaround.
9.4 In the case of defects in title, the Customer shall
(1) immediately notify ADTELLIGENCE in writing of any claim against him due to defects in title (e.g. infringement of intellectual property rights), and
(2) support ADTELLIGENCE free of charge in every reasonable way in defending against corresponding claims of the third party and authorize ADTELLIGENCE to enter into a dispute with the third party in judicial or extra-judicial proceedings, and
(3) without the prior written consent of ADTELLIGENCE, not provide information to a third party which are suitable for undermining ADTELLIGENCE’s legal position (e.g. by acknowledging claims). In the case of unjustified acknowledgement, the Customer’s possible claim for damages shall be reduced by the disadvantage ADTELLIGENCE incurs from the unjustified acknowledgement.
9.5 ADTELLIGENCE is no longer obliged to remedy defects if modifications or processing has been carried out on the work
performance. This exclusion of elimination of defects does not however apply if the Customer proves that the modifications are in no way connected with the defect that has occurred and that the modifications do not significantly hinder analysis and remedying of the defect.
10. Statute of limitations
10.1 Claims in respect of defects in quality or title or the infringement of a duty arising from an obligation will expire after one (1) year, if and insofar as ADTELLIGENCE has not maliciously concealed or caused the defect willfully or by gross negligence or has assumed a guarantee for the relevant qualities of the work performance or entitlement to the breach of a cardinal obligation. Cardinal obligations are those obligations whose fulfillment enables the proper execution of the contract and the fulfillment and the observance of which the Customer regularly relies upon and is entitled to rely upon.
10.2 The beginning of the period of limitation is governed by statutory provisions.
11. Limitation of liability for damages and reimbursement of expenses
11.1 ADTELLIGENCE shall be liable in respect of intent, malice or gross negligence, in the absence of quality guaranteed by ADTELLIGENCE as well as damage resulting from loss of life, bodily harm or damage to the health of a person, according to the legal regulations. The same applies to liability under product liability law.
11.2 In case of slight negligence ADTELLIGENCE is liable only if an essential contractual obligation (cardinal obligation or essential accessory obligation) is infringed upon.
11.3 Any claims asserted against ADTELLIGENCE by reason of liability shall take reasonable account of contributory fault on the part of the Customer, in particular in the case of inadequate reporting of defects or inadequate data protection. Inadequate data security is particularly in evidence if and when the Customer has failed to take protective measures by integrating suitable state-of-the-art security measures against outside interference and in particular to guard against computer viruses and other phenomena that could jeopardize individual data or an entire database.
12. Rights of use and of title
12.1 Work results within the scope of these Terms and Conditions are work results such as e.g. evaluations, design documents, program materials including the pertaining documentation, reports, drawings and similar materials in printed, machine-readable or other forms of presentation handed over to the Customer according to the scope of performance stipulated in the Consultancy Agreement.
12.2 The standard software as well as the services rendered as part of the standard software maintenance, websites,code, graphic design etc. provided to the Customer by ADTELLIGENCE are not deemed work results within the scope of these Terms and Conditions. The rights to the standard software as well as the services rendered as part of standard software maintenance are regulated by the corresponding software license terms and maintenance conditions of ADTELLIGENCE.
12.3 Against payment of the remuneration stipulated in the Consultancy Agreement, the Customer –unless agreed otherwise in the Consultancy Agreement– is granted in relation to the work results rendered by ADTELLIGENCE the non-exclusive right to use, copy, process and link the work results with other programs or materials. The Customer shall add copyright notices that may be contained in the work results in all copies and adaptations of the work results.
12.4 Unless agreed otherwise in the Consultancy Agreement, the Customer shall not hand over the original of the work results or copies thereof to third parties, either in full, in part or processed.
12.5 If the parties have stipulated an exclusive right of use to the work results in the Consultancy Agreement, this shall not prevent ADTELLIGENCE from developing and handing over for use by third parties work results which are similar to the work result delivered to the Customer; in doing so, ADTELLIGENCE shall not copy the work result either in full or in part nor in processed form.
12.6 After termination of the contractual relationship, the right to use the work results, e.g. websites, content, graphics, machine learning scores, expires.
13. Work results of third parties
13.1 The Customer may –insofar as intended by the scope of performance– hand over third-party information for adaptation or other forms of processing to ADTELLIGENCE and its subcontractors. The Customer will only provide third-party information or copyright protected works where they have secured those rights of use that are required both to perform the contract as well as the planned future use by the contracting authority. ADTELLIGENCE is not obliged to check the copyright status regarding the material sent.
13.2 The Customer shall ensure that the terms of use for the work results of third parties do not exclude an adaptation within the scope of paragraph 13.1 above as well as the exploitation and/or publication of the adaptive work.
13.3 The Customer shall indemnify and hold harmless ADTELLIGENCE and its subcontractors from and against any liability for third party claims based on the unauthorized handover for processing according to paragraph 13.1 above, unless ADTELLIGENCE or its vicarious agents have acted intentionally or with gross negligence.
14. Inventions
14.1 For inventions of one of the contractual parties arising or developed in connection with the rendering of performance the following applies:
– Inventions by the Customer’s employees belong to the Customer, and inventions by ADTELLIGENCE employees belong to ADTELLIGENCE. For these inventions and the intellectual property rights granted thereto, the contractual parties, including its affiliates, grant one another a non-exclusive, irrevocable, worldwide, royalty-free license.
– Inventions developed jointly by employees of the Customer and ADTELLIGENCE and all intellectual property rights thereto shall become joint property of both contractual parties. Each party has the right to grant licenses to third parties for such inventions or to assign its rights thereto without notifying the other contractual party thereof and without making payments to said party.
14.2 Affiliated companies shall be deemed those companies which directly or indirectly, financially or in regard to personnel can exert significant influence on the decision of other companies through instructions to the management or voting rights.
15. Confidentiality, data protection, authorization for the use of anonymized data, and cooperation of the Customer
15.1 The contractual parties shall treat essential matters and information not in the public domain belonging to the other contractual party with the confidentiality customary in the usual conducting of business. However, the parties can freely use ideas, concepts, knowhow and techniques that relate to the processing of information.
15.2 A prerequisite for the use of the Contractor’s software for the processing of personal data is that a contract processing agreement pursuant to Art. 28 GDPR is concluded between the parties. The Principal shall notify the Contractor if it plans to use the software accordingly. This notification shall be made prior to the processing of personal data and in good time so that the conclusion of the contract with regard to the order processing agreement is still possible. Furthermore, the Principal shall only use the Software for the processing of personal data with the consent of the data subjects pursuant to the GDPR and assures that it will obtain such consents in a legally effective manner.
15.3 The contractual parties shall process and use personal data of the other contractual party always in compliance with the provisions of the Data Protection Act and only for contractually agreed purposes. The contractual parties will in particular protect this data against unauthorized access and disclose it to third parties only with the consent of the other contractual party.
15.4 ADTELLIGENCE shall be entitled to use and, in particular, correlate in anonymized form the data generated by the End User’s potential customers, which allow conclusions to be drawn from the navigation and search behavior of potential customers so as to improve, in the interest of the End User, ADTELLIGENCE’s standard software provided to the End User on the basis of a separate agreement. In addition, ADTELLIGENCE is permitted to use the data routed through the End User’s system for the purpose of targeting or matching or data correlation analysis exclusively in anonymized form for machine learning for the purpose of an autonomous improvement of ADTELLIGENCE’s standard software provided to the End User on the basis of a separate agreement for further research and development of said standard software. For further development and machine learning, anonymized and pseudonymized datasets are used exclusively. In the event that ADTELLIGENCE does not have separate access to the End User’s system or does not host the system for the End User, the End User shall provide the aforementioned anonymized data to ADTELLIGENCE in another way.
16. Duty of good faith, no solicitation
16.1 The contractual parties mutually agree to the duty of good faith. Both contractual parties will in particular refrain from actively recruiting employees of the other contractual party. This non-solicitation clause is valid for 12 months after completion of the work under the last Consultancy Agreement. It includes the obligation to neither actively recruit as freelancers employees of the other party through this party nor through third parties. In the case of violation of the foregoing obligations, a contractual penalty in the amount of €50,000 is payable to the other party.
17. Termination of Consultancy Agreements
17.1 Unless otherwise provided in the Consultancy Agreements to be concluded on the basis of these Terms and Conditions, Consultancy Agreements may be terminated by Adtelligence with a notice period of two weeks to the end of the calendar month.
17.2 In the event of contractual termination of the agreement by the Customer, ADTELLIGENCE is entitled to the remuneration stipulated therein pursuant to Section 649 BGB (German Civil Code) if the terminated Consultancy Agreement is a contract for work and services. For service contracts in which the Customer has agreed to purchase fixed quantities of service capacities (e.g. man days), the Customer shall pay ADTELLIGENCE the full remuneration stipulated in the Consultancy Agreement, with ADTELLIGENCE being required to set off the expenses not incurred due to termination of the corresponding Consultancy Agreement.
17.3 The right to immediate termination for cause shall remain unaffected by this provision.
17.4 To the extent that contractual terms are not limited in time by their nature, they shall apply beyond the termination of the contractual relationship and for any legal successors or transferees of contract.
18. Other provisions
18.1 The present Terms and Conditions as well as any Consultancy Agreement supersede all prior oral and written agreements and representations regarding the provisions and performance agreed therein. Specifically agreed arrangements will always take priority.
18.2 Amendments and supplements to these Terms and Conditions and all Consultancy Agreements concluded on their basis must be in writing to be valid. The prescribed written form also applies to the rescinding of the stipulation requiring the written form. Specifically agreed arrangements will always take priority.
18.3 These Terms and Conditions and all Consultancy Agreements concluded on their basis are subject to the laws of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sales of Goods. If this law refers to foreign legal systems, said referrals shall be ineffective. Exclusive jurisdiction for all disputes arising from and in conjunction with these Terms and Conditions or any Consultancy Agreement concluded on their basis is the registered place of business of ADTELLIGENCE.
18.4 These Terms and Conditions are drawn up in German and in English. However, only the German version is authoritative for the interpretation as well as in the event of contradictions between the German and English text. The above regulation is valid accordingly for all annexes and individual contracts that are drawn up in German and in English.