General Terms and Conditions for Deliveries and Services of SMARTech Consulting GmbH

Status June, 2024

1.  Scope of Application
   1. All offers and orders for deliveries and services of SMARTech Consulting GmbH (SMARTech) are based on the present General Terms and Conditions for Deliveries and Services of SMARTech in the absence of a separate agreement in individual cases. This shall also apply if, in the case of ongoing business relationships, no further express reference is made to them at a later date. Conflicting or deviating terms and conditions of the customer shall only apply if SMARTech expressly acknowledges them in writing.
   2. These General Terms and Conditions for deliveries and services shall only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), insofar as the contract is part of the operation of the company, as well as to legal entities under public law and special funds under public law within the meaning of Section 310 (1) BGB.
   3. In case of reference is made to this in SMARTech’s order confirmation, further General Terms and Conditions may apply in addition to these General Terms and Conditions for Deliveries and Services, in particular the General Software License Conditions (for permanent software licensing or temporary software licensing) and SMARTech’s General Software Maintenance Conditions. Within their scope of application, these shall take precedence over the provisions of these General Terms and Conditions for Deliveries and Services.
   4. These General Terms and Conditions for Deliveries and Services apply not only to deliveries of products but also to work and services. Acceptance of the delivered products shall be replaced by acceptance in the case of work and services and by receipt of the service in the case of services.
   5. Rights to which SMARTech is entitled in accordance with statutory provisions or other agreements over and above these General Terms and Conditions for Deliveries and Services shall remain unaffected.
2. Offers, conclusion of contract
   1. All offers submitted by SMARTech are subject to change. Orders shall not be deemed to have been accepted until they have been confirmed in writing by SMARTech. An order confirmation issued with the aid of automatic equipment, in which the signature and name are missing, shall be deemed to be in writing. SMARTech’s order confirmation shall be decisive for the content of the contract if SMARTech does not receive a written objection within 8 days of the date of SMARTech’s order confirmation. Verbal collateral agreements shall in any case require written confirmation from SMARTech to be effective.
   2. SMARTech reserves all rights without restriction to service and product descriptions, drawings, test programs and other documents provided to the customer as part of the offer. These documents may only be made accessible to third parties with the prior consent of SMARTech. The product-describing information and technical data contained therein as well as in brochures, advertisements and other information and advertising materials are carefully prepared, but do not constitute any quality or other guarantees in the absence of express designation as such. We reserve the right to make technical changes even after conclusion of the contract, provided they do not have a significant impact on the agreed functionality of the goods or services.
   3. SMARTech’s silence in response to offers, orders, requests or other declarations by the customer shall only be deemed to constitute consent if this has been agreed in writing in advance.
3. Prices, terms of payment
   1. Unless otherwise stated in SMARTech’s order confirmation, the prices shall apply in accordance with SMARTech’s current price list. The prices quoted are exclusive of statutory VAT. Travel costs and expenses shall be invoiced separately.
   2. Invoices from SMARTech are payable immediately upon receipt without deduction, unless SMARTech specifies a payment deadline in the invoice. The customer shall be in default of payment if he fails to pay in response to a reminder sent after the due date. Furthermore, default shall also occur without a reminder 30 days after the due date and receipt of the invoice. In the event of default in payment, SMARTech shall be entitled to claim default interest at the statutory rate from the start of default. Further claims of SMARTech remain unaffected.
   3. In the event of default of payment by the customer, SMARTech shall be entitled, without prejudice to further statutory rights, to exercise a right of retention for all outstanding deliveries and services without prior notice or to demand advance payment or provision of security in this respect. The same shall apply if, after acceptance of the order, SMARTech becomes aware of facts which give rise to justified doubts as to the customer’s solvency.
   4. The customer may only offset SMARTech’s claims against counterclaims that are undisputed or have been legally established. The customer shall only be authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
4. Transfer of Risk, Delivery and Performance Dates
   1. In the case of software downloaded by the customer himself via the Internet from the download area provided by SMARTech, the risk shall pass to the customer upon provision of the download link. In cases where a software key is provided, the risk is transferred to the customer when the software key is provided.
   2. No. 4.1 shall also apply if SMARTech has agreed to install the delivery item at the customer’s premises, unless it is a delivery and installation obligation under a contract for work and services; in this case, the risk shall only pass upon acceptance of the work by the customer. If acceptance is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer upon notification of readiness for acceptance.
   3. Unless expressly agreed in writing, the specification of deadlines or dates for the provision of deliveries and services is non-binding. Firmly agreed delivery and performance periods shall commence at the earliest upon receipt of SMARTech’s order confirmation, but not before the timely and proper fulfillment of the customer’s obligations to cooperate, in particular not before the provision of the documents, approvals, access or releases to be procured by the customer and not before receipt of any agreed down payment. Delivery periods and deadlines shall be deemed to have been met if SMARTech has notified the customer of readiness for download by the time they expire. This shall not apply if acceptance is a contractual condition or if SMARTech has an installation obligation.
   4. SMARTech shall endeavor to meet agreed delivery and performance deadlines. The customer’s statutory right of withdrawal in the event of late delivery or performance shall remain unaffected, but presupposes that SMARTech is responsible for the delay. At SMARTech’s request, the customer is obliged to declare within a reasonable period of time whether it will withdraw from the contract after the expiry of the deadline due to the delay in delivery or service or whether it insists on the delivery or service.
   5. Operational disruptions through no fault of SMARTech (shortage of materials, strikes, illness of named employees) and other events of force majeure as well as late delivery to SMARTech through no fault of SMARTech shall release SMARTech from its obligation to perform for the duration of the obstacle. This shall also apply if these circumstances occur with upstream suppliers. If SMARTech is released from its obligation to perform, SMARTech shall refund any advance payments made by the customer. Any further claims for damages by the customer are excluded.
   6. Partial deliveries and services are permitted to a reasonable extent.
5. Copyrights, License Conditions for Software
   1. The customer undertakes to observe the existing copyrights and other intellectual property rights to the delivery item or the work created in the context of the provision of the service, in particular to computer programs (“software”).
   2. In the case of the delivery of software from other manufacturers (third-party software), the customer undertakes to use the delivered software only in accordance with the applicable license conditions of the manufacturer and to impose the same obligations on the purchaser in the event of its resale, if such resale is permitted.
   3. For the use of SMARTech software, SMARTech’s General Software License Terms and Conditions (for permanent or temporary software licenses) shall apply in addition to these General Terms and Conditions for Deliveries and Services.
   4. In the case of the individual creation of software on behalf of the customer or the performance of individual adaptation programming (individual software), the customer shall receive a non-exclusive right of use to the respective service result, unless otherwise agreed in writing in individual cases. In addition, the General Software License Conditions of SMARTech Consulting GmbH for the permanent transfer of software shall apply to the use of such individual software in addition to these General Terms and Conditions for Deliveries and Services.
6. Retention of title
   1. In the case of deliveries, the delivery item shall remain the property of SMARTech until all claims arising from the business relationship with the customer have been settled in full, irrespective of the legal grounds. In the case of current accounts, the retained title shall be deemed security for the respective balance claim of SMARTech.
   2. If the customer acts in breach of contract, in particular in the event of default of payment, imminent suspension of payment, in the event of unsatisfactory information about the solvency or financial situation of the customer, if foreclosures or bill protests occur against the customer, and if an application is made to open insolvency proceedings against the customer’s assets, SMARTech shall be entitled to take back the delivery item. The customer is obliged to surrender the goods. The taking back or assertion of the retention of title does not require SMARTech to withdraw from the contract. These actions or the seizure of the delivery item by SMARTech shall not constitute a withdrawal from the contract, unless SMARTech has expressly declared this in writing. After taking back the delivered goods, SMARTech is authorized to dispose of them. The realization proceeds – less reasonable realization costs – shall be offset against the customer’s liabilities.
   3. The customer is obliged to treat the delivery item with care and, at SMARTech’s request, to insure it adequately against damage for the duration of the retention of title. The customer hereby assigns claims against the insurance company to SMARTech up to the amount of SMARTech’s underlying claims. In the event of seizure or other interventions by third parties, the customer must inform SMARTech immediately in writing so that SMARTech can assert its ownership rights. If the third party is not willing or able to reimburse SMARTech for the judicial and extrajudicial costs of enforcing SMARTech’s property rights, the customer shall be liable for the loss incurred by SMARTech.
   4. The customer may only resell delivery items owned by SMARTech in the ordinary course of business under its normal conditions; however, this shall only apply as long as the customer is not in default of payment. In the case of software, resale is only permitted in accordance with the provisions of SMARTech’s applicable General Software License Conditions (for permanent software licensing or temporary software licensing). In the event of resale, the customer hereby assigns to SMARTech in advance the claims arising against its customers or third parties in the amount of the respective invoice amount of SMARTech for the resold delivery items (including VAT) plus a security surcharge of 10%. SMARTech hereby accepts the assignments.
   5. The customer is entitled to collect the claims assigned to SMARTech in accordance with No. 6.4 above until SMARTech’s revocation, which is permissible at any time. SMARTech shall only make use of this right of revocation for good cause. Upon request, the customer is obliged to inform the third-party debtors of the assignment to SMARTech and to provide SMARTech with the information and documents required for collection.
   6. The customer may not assign or pledge the delivery items owned by SMARTech to third parties as security, assign the claims from the resale to third parties or set them off against them, nor agree a prohibition of assignment with its customers with regard to these claims. In the event of a blanket assignment by the customer, the claims assigned to SMARTech shall be expressly excluded.
   7. If the value of the securities existing for SMARTech exceeds SMARTech’s claims against the customer by more than 10% in total, SMARTech shall be obliged to release the securities exceeding this limit at the customer’s request, whereby SMARTech shall be responsible for selecting the individual items to be released.
   8. In the case of deliveries to other legal systems in which this retention of title provision does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants SMARTech a corresponding security interest. If further measures are required for this, the customer shall do everything possible to grant SMARTech such a security interest without delay. The customer shall cooperate in all measures that are necessary and conducive to the effectiveness and enforceability of such security interests.
7. Liability for Material Defects in Deliveries (Purchase) and Work Services
   1. In the case of deliveries (including the provision of software on a permanent basis), the customer must carefully inspect the delivery item immediately upon receipt and notify SMARTech in writing of any defects without delay, but no later than seven working days after delivery, and in the case of hidden defects seven working days after they become apparent. Work services must be accepted by the customer immediately after performance; acceptance cannot be refused due to insignificant defects.
   2. In the event of defects in the delivery item notified in good time and in the event of defects in work services reserved at the time of acceptance or unknown to the customer, the customer shall initially be entitled to subsequent performance within a reasonable period to be set by the customer. SMARTech shall decide on the type of subsequent performance (rectification of defects or new delivery/new production). SMARTech shall only bear the necessary expenses, such as labor, material, transport and travel costs, insofar as these expenses are not increased by the fact that the delivery or service item has subsequently been moved to a location other than the agreed place of delivery or service, unless this transfer corresponds to the intended use. If a notice of defects is unjustified, SMARTech shall be entitled to demand compensation from the customer for the expenses it incurs, unless the customer is not responsible for the unjustified notice of defects.
   3. If SMARTech refuses subsequent performance in accordance with No. 7.2, fails to do so even on the second attempt or is unreasonable for the customer, the customer may, without prejudice to any claims for damages or reimbursement of expenses in accordance with No. 10, at his discretion demand a reduction in the agreed remuneration for the delivery or service (reduction), remedy the defect himself and obtain reimbursement of the necessary expenses (applies only to work services) or – insofar as SMARTech’s breach of duty is not merely insignificant – withdraw from the contract.
   4. The customer shall have no claims for material defects if a defect is based on the fact that the delivery item or service has been modified by the customer without authorization, in particular by installing third-party parts, or has not been used in accordance with the respective valid product description.
   5. The limitation period for the customer’s claims for defects is one year from delivery (for deliveries) or from acceptance (for work services). The shortening of the limitation period to one year shall also apply to claims in tort based on a defect in the delivery item or work performance. The shortening of the limitation period shall not apply to SMARTech’s unlimited liability for damages arising from the breach of a guarantee or from injury to life, limb or health, for intent and gross negligence and for product defects or insofar as SMARTech has expressly assumed a procurement risk.
8. Supplementary Provisions for Software Purchase, Software Creation and Software Rental
   1. The subject of the contract is software that basically corresponds to the information provided in the respective program description. Subject to any express assumption of guarantee by SMARTech, the information in the program description and the program documentation shall not be deemed a guarantee of quality within the meaning of §§ 443 and 639 BGB.
   2. A defect exists if the software does not fulfill the functions specified in the program description, delivers incorrect results, aborts its run in an uncontrolled manner or does not behave in a functional manner in any other way, so that the use of the software is prevented or not only insignificantly impaired.
   3. SMARTech shall not be liable for errors in the software caused by application errors on the part of the customer which could have been avoided by careful consultation of the program documentation; this shall also apply in the event of non-existent or inadequate backup measures; due to virus attacks or other external influences for which SMARTech is not responsible, such as fire, accidents, power failure, etc.; due to the fact that the software was used in an operating environment other than that approved by SMARTech; or due to errors in the hardware, operating system or computer programs of other manufacturers for which the customer is not responsible. The same shall apply in the event of a failure of the software due to the fact that the software was used in an operating environment other than that approved by SMARTech, or due to errors in the hardware, operating system or computer programs of other manufacturers used by the customer in connection with the software; due to the fact that the software was modified by the customer or third parties without authorization.
   4. SMARTech also provides no warranty for components or modules supplied free of charge by other manufacturers (third-party software), in particular open source software, which can be used in conjunction with the software provided by SMARTech.
   5. In the event of the occurrence of defects within the meaning of No. 8.2, the customer is obliged to provide SMARTech with all information necessary for error analysis and subsequent performance and to grant SMARTech or the persons commissioned by SMARTech unrestricted access to the software and the customer’s system on which it is installed. An error message must contain information about the type of error, the application in which the error occurred and the work carried out to eliminate the error. If SMARTech carries out an error analysis at the customer’s request and it turns out that there is no defect that SMARTech is obliged to rectify, SMARTech may invoice the customer for the corresponding expenditure on the basis of SMARTech’s applicable hourly rates.
   6. In the case of software rental (temporary transfer of software), no-fault liability for initial defects is excluded in accordance with Section 536a (1) BGB.
9. Liability for Defects of Title
   1. SMARTech warrants within the scope of the following provisions that the services provided by it are free from third-party rights that would prevent their contractual use by the customer.
   2. In the event that third parties assert such rights, the customer shall immediately inform SMARTech thereof and grant SMARTech all powers of attorney and authorizations necessary to defend the customer against the asserted rights of third parties.
   3. In the event of a defect of title, SMARTech shall be entitled, at its discretion, to take appropriate measures to eliminate the rights of third parties that impair the contractual use of the service or to modify or replace the service in such a way that it no longer infringes the rights of third parties, if and insofar as this does not impair the guaranteed functionality of the service.
   4. If SMARTech fails to remedy the defect of title in accordance with No. 9.3 above within a reasonable period of time to be set by the customer, even on the second attempt, or if SMARTech refuses to do so or if this is unreasonable for the customer, the customer may, without prejudice to any claims for damages or reimbursement of expenses in accordance with No. 10, the customer may, at his discretion, demand a reduction (reduction of the agreed remuneration) or – provided the defect of title is not only insignificant – withdraw from the contract (in the case of purchase, including permanent software licensing, or work services) or terminate the contract (in the case of rental, e.g. temporary software licensing).
   5. No. 7.5 shall apply accordingly to the limitation period for claims due to defects of title in the case of purchase (including permanent transfer of software) or work performance.
10. Liability for Damages and Reimbursement of Expenses
    1. SMARTech shall be liable in accordance with the statutory provisions if the customer asserts claims for damages or reimbursement of expenses based on intent or gross negligence or non-compliance with guarantees given in writing (including the assumption of a procurement risk), as well as in cases of culpable injury to life, limb or health.
    2. In the event of simple negligence, SMARTech shall only be liable for the breach of material contractual obligations. Essential contractual obligations are those which arise from the nature of the contract and which are of particular importance for achieving the purpose of the contract. In the event of a breach of material contractual obligations due to simple negligence, SMARTech’s liability shall be limited to the foreseeable, typically occurring damage. Claims for damages and reimbursement of expenses in accordance with this No. 10.2 shall become time-barred after twelve months. No. 7.5 remains unaffected.
    3. In the event of data loss, SMARTech shall be liable at most for the effort required to reconstruct the data if the customer has properly backed up the data.
    4. Any further liability for damages or reimbursement of expenses other than that provided for in these General Terms and Conditions for Deliveries and Services is excluded, regardless of the legal nature of the asserted claim. The mandatory provisions of product liability law remain unaffected.
    5. If SMARTech’s liability for deliveries and services is excluded or limited in accordance with these General Terms and Conditions, this shall also apply to the liability of SMARTech’s executive bodies and vicarious agents, in particular employees.
11. Protection of Confidential Information
    1. The parties undertake to keep strictly confidential all information of the other party which becomes accessible to them in connection with the performance of the contract and which is designated as confidential or is recognizable as business or trade secrets according to the other circumstances, for a period of five years from the time of knowledge, at the latest starting with the last delivery or provision of the last service, and – unless necessary to achieve the purpose of the contract – neither to record it nor to pass it on to third parties or otherwise exploit it.
    2. The confidentiality obligation shall not apply if the information was demonstrably already known to the receiving party prior to the commencement of the contractual relationship, is generally known or generally accessible or becomes generally known or accessible through no fault of the receiving party. The receiving party shall bear the burden of proof.
    3. The parties shall only allow their employees, agents and other vicarious agents access to such information to the extent that this is necessary for the purposes of the respective contract and shall ensure through appropriate contractual agreements that these are also subject to corresponding confidentiality obligations.
12. Cross-Border Deliveries, Export Control
    1. In the case of cross-border deliveries, the customer must submit all declarations and actions necessary for export from Germany and import into the country of destination to the competent authorities in good time, in particular to procure the documents required for customs clearance and to comply with the requirements of any export controls or other restrictions on marketability. At SMARTech’s request, the customer must submit an end-use certificate that meets the requirements of the applicable regulations.
    2. Cross-border deliveries are subject to the proviso that there are no obstacles to fulfillment due to national or international regulations, in particular export control regulations, embargoes or other sanctions.
    3. Delays due to export controls for which SMARTech is not responsible shall invalidate the agreed delivery times.
13. Applicable Law, Place of Performance and Jurisdiction
    1. The legal relationship between the customer and SMARTech shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods.
    2. The exclusive place of performance for both parties to the contract is Stuttgart. The place of jurisdiction is Stuttgart. However, SMARTech shall also be entitled to sue the customer at its general place of jurisdiction.
14. Final Provisions
15. 1. Should any provision of the General Terms and Conditions for Deliveries and Services, the General Software Maintenance Conditions or the General Software License Conditions of SMARTech be or become invalid or unenforceable in whole or in part, or should there be a loophole therein, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision, the valid or enforceable provision that comes closest to the purpose of the invalid or unenforceable provision shall be deemed to have been agreed. In the event of a loophole, the provision that corresponds to what would have been agreed in accordance with the purpose of the respective contract shall be deemed to have been agreed if the contracting parties had considered the matter from the outset.
    2. Amendments to these General Terms and Conditions for Deliveries and Services, the General Software Maintenance Conditions or the General Software License Conditions of SMARTech shall be offered to the customer in text form with effect for existing contracts at least two months before their proposed date of entry into force. If the customer has agreed an electronic communication channel with SMARTech as part of the business relationship, the changes may also be offered by this means. The customer may either agree to or reject the changes before the proposed effective date. The customer shall be deemed to have approved the change if he has not notified SMARTech of his rejection before the proposed date of entry into force of the changes. SMARTech shall specifically point out this approval effect to the customer in the offer.