Standard Business Terms

In case of doubt, the conditions in German language do have priority.

1. General terms

(1) The following Standard Business Terms apply to all transactions between madpat GmbH, Zwerchstraße 1, 71229 Leonberg (hereinafter referred to as “madpat”) and its customers.

(2) These Standard Business Terms apply exclusively even if, with knowledge of conflicting business terms and conditions of its customer, madpat makes a supply of goods and services to its customers without reservation. madpat does not recognize standard business terms and conditions of its customers that vary from these Standard Business Terms, whether in whole or in part, unless madpat has expressly given its written consent in advance.

(3) These Standard Business Terms also apply to all future transactions between the parties.

2. Performance by madpat

(1) madpat provides services (hereinafter referred to as “services”), including without limitation programming, project planning, online marketing and consulting. A detailed description of the services to be rendered is contained in a binding offer from madpat.

(2) As a rule, madpat renders services exclusively on the basis of a contract for services on a time and materials basis according to the rates set out in the offer. Prices that may be listed in an offer are non-binding unless they are expressly denoted as fixed prices.

(3) Cost estimates from madpat are subject to change and non-binding unless they are expressly denoted as binding.

(4) madpat is fundamentally free in its selection of tools and technology and may use Open Source Software and third-party software provided that the customer can use such software in accordance with the contract. Section 7 paragraph (5) of these Standard Business Terms applies with regard to Open Source Software.

(5) madpat creates its work product such that it may be correctly displayed and functions using a browser that is current and in commonly use at the time such work product is created based on standard resolution and the use of commonly-used operating systems. A separate agreement is required in the event that correct display/functionality is also desired for other browsers/other operating systems or based on specific non-standard configurations.

(6) madpat may employ freelancers and sub-contractors in connection with performing the services it owes to the extent that this does not conflict with a legitimate interest of the customer.

3. Change requests

(1) The customer is required to inform madpat in writing if the customer desires to change or expand ordered supplies of goods or services.

(2) In response, madpat will review the effects the desired change will have, in particular with regard to estimated additional costs and time required.

(3) After reviewing the requested change, madpat will inform the customer of the effects of the desired change on the agreements then in place. This response will either include a detailed proposal for implementing the requested change or an explanation as to why the change request cannot be honored.

(4) madpat may refuse to implement a request for a change or expansion by the customer if such changes or expansions are not possible or their realization would not be reasonable within the scope of available operational capacities. madpat will inform the customer if it realizes that work to be performed cannot be performed at all or only subject to delay as a result of the review. The customer can then decide whether the change review process should continue.

(5) If the results of the review are positive, the parties will immediately consult regarding the contents of a proposal for implementing the change request and set out the results in writing.

(6) The original scope of performance will continue to apply they are not able to agree or if the change review process is ended for any other grounds.

(7) Any deadlines that may have been affected by the change review process will be postponed to the extent necessary under consideration of the duration of the review, the duration of consultations regarding the proposal for the change and, if applicable, time needed to implement the changes plus a reasonable lead time.

(8) The customer is responsible for any additional costs resulting from the change request. This includes, without limitation, reviewing the change request, preparing a proposal for the change and any downtime. Expenses will be charged based on agreed rates and otherwise based on madpat’s standard fees.

4. Co-operation

(1) The parties agree to collaborate in good faith and will inform each other in the case of deviations from the agreed process or doubts as to the correctness of the approach taken by the other respective party without delay.

(2) If the customer sees that its own information or requirements are incorrect, incomplete, unclear or not feasible, it is required to inform madpat of this immediately along with the associated consequences of which the customer is aware.

(3) Immediately following conclusion of the contract the parties will provide each other with contact persons as well as alternates. The contact person, and his/her respective alternate, are the exclusive point of contact for the other respective party for consultations and agreements of any type with regard to all questions that relate to the scope of the parties’ co-operation. The parties warrant that the persons to be named by them as contact persons and alternates have comprehensive authority to make all decisions related to their co-operation.

(4) The parties are required to inform each other immediately in writing of any changes to the designated persons. Until receipt of such a communication, the contact persons referred to above and/or their alternates are deemed to make and receive declarations within the scope of their previously applicable authority. When making any changes, the parties are required to ensure that there are no disruptions to their co-operation and that the newly-designated persons have all required information and expertise needed for the smooth continuation of their co-operation.

(5) All declarations with legal relevance must be provided in writing to the contact person for the respective party or his/her alternate.

(6) madpat will prepare minutes of all meetings that are material to a project and send them to the customer. In the case of inconsistencies, the customer has the right to have its comments added to the minutes. This right must be exercised within one week of receipt of the minutes at the latest. In the case of meetings conducted by telephone, audio recordings may be prepared which replace minutes of the meeting. The customer is required to pay the expenses of preparing the minutes.

5. Customer’s duty of co-operation

(1) The customer is required to support madpat in the satisfaction of its performance obligations under the contract. Without limitation, these duties of co-operation include providing information and transmitting data, materials, in particular images and texts, to the extent necessary for performance by madpat. Furthermore, on request, the customer is required to provide madpat feedback regarding work product supplied to the customer. The customer is required to perform the acts of co-operation expressly referred to above within one week of request by madpat at the latest. madpat is entitled to set a reasonable deadline for the customer to perform additional acts of co-operation. In all other cases, the customer is fundamentally required to react to any correspondence or queries from madpat within two business days.

(2) The customer is required to make a sufficient number of its employees who have the required technical expertise available as needed to fulfill its contractual obligations.

(3) The customer is aware that a breach or delay in performing its duties of co-operation may potentially prevent madpat from performing in accordance with the contract. Without limitation, this may result in delays in the agreed schedule or to additional expense.

(4) To the extent not otherwise agreed in writing, the customer is responsible for the creation or procurement of content. It is required to provide content in a standard, directly usable, digital format. The customer is required to bear all additional costs should it be necessary to convert materials provided by the customer to another format. The customer will grant madpat the rights required for the use of such materials in advance and warrants that it is entitled to grant such rights of use.

(5) In the event it is necessary to perform work on the customer’s premises in connection with performing the contract, the customer will grant madpat employees unrestricted access during normal business hours and provide them appropriate workspace and materials.

(6) All co-operative acts that the customer is obliged to perform shall be at the customer’s own cost and expense.

(7) madpat is entitled to exercise an extraordinary right of contract termination in the event that the customer violates its duties of co-operation seriously or repeatedly. Without limitation, this is the case if the customer does not make agreed payments at all or on a timely basis, does not provide information or materials, does not perform required acts of co-operation, may not be reached over an extended period or hinders the progress of the project concerned in any other manner.

6. Remuneration

(1) The remuneration agreed by the parties in the respective order is decisive. madpat’s standard rates apply if no remuneration has been agreed. Invoices will generally be issued on a monthly basis at the end of the month. Payment is due one week after the invoice has been issued.

(2) In the event of a default, madpat is entitled to exercise a right of retention with regard to goods and services to be provided based on the same contractual relationship with the customer. During any period of default, outstanding payments accrue interest at a rate of interest of 9% above the relevant base lending rate.

(3) Expenses, in particular costs incurred by madpat at the express wish of the customer, will be invoiced at cost. Without limitation, this includes communications, shipping and reproduction expenses.

(4) All supplies of goods and services by madpat are subject to statutory VAT at the then applicable rate.

(5) madpat is entitled adjust the applicable agency price list once quarterly at most in order to take changes in market conditions, e.g. higher procurement costs, taxes or duties, into account. Price adjustments will be communicated to the customer immediately. The customer has an extraordinary right of termination if such adjustments significantly exceed the general rate of inflation. The customer will be expressly informed of this right of termination in the communication of the price adjustments.

7. Rights of use

(1) To the extent not otherwise agreed, madpat grants the customer a simple right of use in all work product created. Such right of use is indefinite in duration, without geographic restriction and covers the right to use such work product in accordance with the contract. If the subject of performance is software, the customer is likewise entitled to the rights set out sections 69d subsections (2) and (3), section 69e German Copyright Act (“UrhG”).

(2) To the extent not expressly agreed otherwise, the customer is prohibited from editing, combining, adapting or translating, decompiling, reverse engineer, dissembling or converting to human readable form, madpat work product whether in whole or in part. Furthermore, the customer is prohibited from using madpat work product, or parts thereof, as a basis for developing similar applications, products or websites.

(3) To the extent that, paragraph (1) notwithstanding, the parties have agreed to a transfer of exclusive rights, such exclusive rights do not apply to tools developed and used by madpat in connection with realization as well as underlying data processing programs/functions as well as all other commonly used (software) tools.

(4) The grant of rights to third parties, regardless of whether gratuitously or for consideration, is prohibited unless the customer completely relinquishes its own rights of use.

(5) Work product may include components that were licensed from third parties. Without limitation, this may include image, audio and video licenses or Open Source Software. The foregoing provisions are not applicable to any such components. In such cases, the relevant license terms apply exclusively. To such an extent, these Standard Business Terms are not applicable. madpat warrants that use of the work product in accordance with the contract is not limited by the use of third-party components. This does not apply to components provided by the customer or that fall within its area of responsibility. With regard to the foregoing, madpat is not obliged to review such components for rights of use and legal compatibility.

(6) Until complete payment of remuneration, the customer’s right of use in work product is granted conditionally. madpat may prohibit the use of such work products with regard to which the customer is in default of payment.

8. Deadlines

(1) Deadlines for performance are only binding on madpat if they have been promised to the customer in writing.

(2) Delays in performance based on a force majeure event (e.g. strike, lock-out, official action, general disruptions in telecommunications, etc.) and circumstances within the control of the customer (e.g. delays in fulfilling obligations to cooperate, delay by third parties attributable to the customer) are not the responsibility of madpat and entitle madpat to postpone the deadline for providing the service concerned for the duration of the impediment plus a reasonable lead time. madpat will provide the customer immediate written notice if the event of a delay in performance due to a force majeure event.

(3) Termination pursuant to section 649 BGB is prohibited.

9. Acceptance

(1) Should, contrary to section 2 paragraph (2), a contract for a work have been agreed, madpat will make the completed work product available for acceptance by the customer and notify the customer accordingly. madpat is entitled to make partial deliveries to the customer for partial acceptance provided such partial deliveries may be clearly defined. Upon receipt of notice of readiness for acceptance, a period of ten days begins to run for the customer during which the customer is obliged to make a written declaration of acceptance to the extent that the work product or services conform to the contractual requirements. madpat must be informed of any defects that are discovered without delay.

(2) If the acceptance period lapses without madpat having received either a declaration of acceptance or notice of a defect, the work product is deemed to have been accepted free of defects upon the lapse of such period. Work product is likewise deemed to have been accepted free of defects if the customer places it in operation, publishes it or pays the agreed remuneration.

(3) madpat will remedy any acceptance-related defects reported by the customer within a reasonable period. Acceptance is to be repeated thereafter. The customer may not refuse acceptance on the basis of immaterial defects. Defects are immaterial if they do not, or do not significantly, limit use.

10. Warranty

(1) Should, contrary to section 2 paragraph (2), a contract for a work have been agreed, madpat’s warranty obligations are based on the following provisions:

(2) madpat warrants that work product created by madpat within the scope of the agreement are free of third-party property rights and, to madpat’s knowledge, there are likewise no other rights that could limit or preclude use in accordance with the contract. madpat will indemnify and hold the customer harmless from all third-party claims to such an extent. This does not apply to any and all content provided by the customer or that falls with the customer’s scope of responsibility.

(3) The customer is required to notify madpat immediately if contractual use is impaired as a result of third-party property rights. In such cases, madpat has the right to a degree that is reasonable for the customer and in consultation with the customer to either, at madpat’s election, modify the contractual work product such that it falls outside of the scope of such property rights however still conforms to the contractual specifications, or to obtain a license so that such work product may be used by the customer in accordance with the contract without limitation and at no additional cost to the customer.

(4) In the case of general changes in technology (e.g. browsers, server technology, plug-ins, operating systems, W3C standards, online access, etc.), madpat does not warrant that work product created will retain its fitness for the contractual purpose under such changed circumstances. There is no right to subsequent adaptation.

(5) To the extent possible and to the extent it may be reasonably acceptable to the customer in light of the effects of the defect, madpat may provide the customer an interim solution (workaround) until the defect is finally cured.

(6) A right to assert a warranty claim lapses in the event that the customer modifies, or has modified, work product without the consent of madpat unless the customer can prove that the defect concerned was not the result of modifications performed by or on behalf of the customer and/or any omitted maintenance or updates.

(7) The warranty period is one year and commences upon acceptance of the work product concerned. This is without prejudice to longer mandatory limitations periods provided by law or under the German Product Liability Act.

11. Liability

(1) madpat is liable without limitation for damages incurred by the customer in connection with services rendered provided such damages were caused by intentional or grossly negligent actions.

(2) Furthermore, madpat is liable for damages incurred by the customer in connection with services rendered provided such damages were caused by the breach of a material contractual obligation due to simple negligence. In such cases, madpat’s liability is limited to damages typical to the contract that are foreseeable at the time of contract formation.

(3) Liability on the part of madpat in all other circumstances is excluded.

(4) The foregoing limitations on liability do not apply to claims based on bodily injury and to liability under the German Product Liability Act.

(5) To the extent that madpat creates work product based on the specifications of the customer and/or on the basis of contents provided by the customer, madpat assumes no liability for the legal conformity such work product. madpat assumes no liability for contents provided by the customer under any circumstance. The customer is responsible for having services and/or works to be provided by madpat legally reviewed prior to publication.

(6) The customer is obliged to take effective measures to prevent and mitigate damages. madpat is not liable for the loss of data and/or programs to the extent such damages are due to the circumstance that the customer has not performed backups in order to thus ensure that lost data may be recovered at a reasonable cost.

(7) The foregoing provisions apply in like manner in favor of madpat’s agents.

12. Confidentiality

(1) Documents, know-how and experience provided to a party may only be used for purpose of the contract concerned and may not be disclosed to third parties to the extent that they are not intended to be disclosed to third parties based on their intended purpose or they are not already known by the third party. Third parties do not include outside persons brought in to aid in the performance of the contract such as freelancers, sub-contractors, etc.

(2) Furthermore, the parties agree to maintain confidentiality with regard to the contents of the contract concerned and knowledge gained in connection with its performance.

(3) This confidentiality obligation continues to apply following the termination of the respective contract.

(4) If requested by a party, documents provided such as strategy papers, briefing documents, etc. are to be returned to the requesting party at the end of the respective contract provided the other party cannot assert a legitimate interest in such documents.

(5) Without the consent of the customer, madpat may not use the customer’s name or logo(s) on its website or in other media or advertising materials or use the customer as a reference customer. Furthermore, may not publicly use or refer to the services rendered for demonstration purposes with the customer’s consent.

13. Non-solicitation clause

During the collaboration between the parties and for a period of one year thereafter, the customer agrees not to recruit any madpat employees or to hire such employees without the consent of madpat. For every violation of this obligation, the customer agrees to pay madpat a penalty for breach of contract in amount to be specified by madpat; such amount may be reviewed by a court in the event of a dispute.

14. Miscellaneous

(1) Obligations may only be assigned with the prior written consent of the other respective party. Consent may only be refused for good cause. This is without prejudice to the provisions of section 354a German Commercial Code (“HGB”).

(2) A right of retention may only be asserted with regard to counter-claims arising under the respective contractual relationship.

15. Final provisions

(1) Amendments or additions to contractual agreements must be set out in writing for in order to provide documentation. This also applies to any amendment to this written form requirement.

(2) The laws of the Federal Republic of Germany apply subject to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and international conflicts of laws principles.

(3) The exclusive place of jurisdiction for all disputes arising under or in connection with these Standard Business Terms is Leonberg.

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