General terms and conditions of business
§ 1 Scope
(1.) These General Terms and Conditions (GTC) apply to all business relationships with our business partners (“Client”). The GTC apply only if the Client is an entrepreneur (§ 14 German Civil Code), a legal entity under public law, or a special fund under public law.
(2) These General Terms and Conditions apply exclusively, unless otherwise agreed in individual cases. By placing an order, the client agrees to our terms and conditions. Any conflicting or deviating terms and conditions of the client are only binding for SMART NUMBERS (hereinafter referred to as SN) if they are expressly acknowledged by SN in writing.
(3) Individual agreements made with the client in specific cases (including side agreements, amendments, and modifications) shall always take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or written confirmation from SN shall be decisive for the content of such agreements.
(4.) These General Terms and Conditions apply to all IT and consulting services provided by SN for the
Clients (e.g., IT consulting, development, implementation, training and application support services, workshops).
§ 2 Conclusion of Contract
(1.) A contract with SN requires that the client accepts an offer from SN, receives a written order confirmation from SN, or that SN begins performing the services. If SN issues a written order confirmation, this confirmation is decisive for the content and scope of the contract, unless otherwise agreed in writing.
(2.) Amendments, side agreements and additions as well as any agreements on quality or the assumption of guarantees require an express and written agreement to be effective.
§ 3 Performance obligations
(1.) The contracting parties shall cooperate in a spirit of partnership in the performance of the services and shall maintain a regular exchange of information.
(2.) Before the commencement of services, the client shall appoint a representative who is responsible for initiating and coordinating all necessary measures for the execution of the contract and who shall be SN's sole point of contact for all ordinary matters relating to the respective contract. This client representative shall be authorized to receive and issue all declarations in connection with the contract.
(3.) SN must notify the client in writing in advance of any transfer of the performance of contractual services to third parties (e.g., subcontractors). The client is entitled to object to the use of a third party in writing within seven working days. However, the use of the third party may not be unreasonably refused. Companies affiliated with SN within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG) are not considered third parties within the meaning of this contract.
§ 4 Performance period
(1.) The performance periods are generally determined by the contractual agreements.
(2.) A party shall only be in default without a reminder if a deadline has been set as binding.
(3.) The obligation to comply with deadlines and dates is contingent upon the complete and timely fulfillment of the other party's obligations. Otherwise, subsequent deadlines of the other party shall be extended accordingly.
(4.) SN shall not be responsible for delays due to force majeure - see also Section 9 (4.) .
§ 5 Payment Terms
(1.) All agreed prices are exclusive of value added tax applicable at the time of performance.
(2.) Payments are due within 14 days of receipt of the invoice.
(3.) Unless otherwise agreed, the client shall pay SN a flat fee per agreed unit of time. If a fee based on daily rates is agreed, these shall be calculated on the basis of an eight-hour person-day.
(4.) For remuneration based on time spent, SN provides proof of performance by means of recording documents.
(5.) SN shall prepare a verifiable invoice for each payment request, which shall specify the services rendered in detail.
(6.) Unless otherwise agreed, SN shall receive a lump sum of nine percent of net remuneration for travel expenses; no itemized billing shall be required.
§ 6 Obligations of the Client to Cooperate
(1.) The successful execution of the contractual IT services requires intensive collaboration and cooperation. The following obligations to cooperate and provide resources are the client's primary obligations, which the client shall fulfill at its own expense and risk: naming and ensuring the availability of a representative for the duration of the contract; granting SN's employees the necessary access rights to premises, systems, and software programs for the contractual services; providing the necessary hardware and software, including required software licenses; performing regular data backups, agreed-upon tests, and conducting and participating in any necessary acceptance tests.
(2.) The Client shall inform the Contractor immediately if it discovers any errors or irregularities in connection with the processing of data by the Contractor.
(3.) In the event that there is an obligation to provide information to third parties pursuant to Articles 33 and 34 of the GDPR or any other statutory notification obligation applicable to the client, the client shall be responsible for compliance with such obligation.
§ 7 (Partial) Acceptance
(1.) The client is obligated to accept SN's services, insofar as this is necessary. Minor defects that do not seriously impair the suitability of the service for the contractually agreed purpose do not entitle the client to refuse acceptance. This does not affect the client's right to assert statutory warranty claims.
(2.) Acceptance shall be deemed to have been granted if (a.) the client declares acceptance in violation of
(a) the above § 7 (1.) or refuses to participate in a joint acceptance test despite a timely request; (b.) the client, after conducting a joint acceptance test, does not declare acceptance in writing or refuses acceptance in writing with a specific description of the defects preventing acceptance, even though SN has requested him to do so within a period of at least seven working days.
(3.) SN is entitled to partial acceptance in the case of self-contained partial services. 3
(4.) Intellectual services requiring acceptance are deemed accepted unless the client expressly raises reservations in writing within 30 days of their delivery, specifying the defects. If a reservation by the client proves to be unjustified, the client shall bear the resulting costs, unless the client is only guilty of slight negligence. Services, in particular consulting and support services, are not subject to acceptance unless the requirement for acceptance of the service is expressly stipulated. SN shall promptly remedy any defects that prevent acceptance and resubmit the affected service for acceptance. The foregoing provisions apply accordingly to any re-acceptance.
(5.) In the event of defects that prevent acceptance, SN shall be given at least three opportunities to remedy the defects within reasonable timeframes. The client shall grant SN access to the object of performance for the purpose of troubleshooting and rectifying the defects, at SN's discretion, either directly and/or by means of remote data transmission.
(6.) If subsequent performance fails even after the expiry of the third reasonable period, the client may – without prejudice to any existing claims for damages – reduce the agreed remuneration or withdraw from the contract. SN's obligation to pay damages or reimburse the client's expenses is conclusively regulated in Section 9.
§ 8 Warranty, Limitation Period
(1.) The client's rights under Section 634 Nos. 2 to 4 of the German Civil Code (BGB) are only available to him under the conditions of Section 7 (5.); Section 9 also applies to damages and wasted expenses.
(2.) The client may only demand a reversal of the contract in the case of defects that would have entitled him to refuse acceptance pursuant to Section 7.
(3) The statutory limitation periods shall apply to the claims of the contracting parties, unless otherwise specified below.
(4.) The limitation periods are, except in cases of intent, gross negligence, personal injury and claims under the Product Liability Act: Generally, for rights arising from material defects: 12 months from the commencement of the statutory limitation period; for claims arising from defects of title: 12 months from the commencement of the statutory limitation period, unless the defect of title lies in a third party's right in rem on the basis of which they can demand the return of the services from SN; for claims for damages or reimbursement of futile expenses not based on material or legal defects: 12 months from the commencement of the statutory limitation period.
§ 9 Liability, Force Majeure
(1.) SN is liable for intent and gross negligence. Furthermore, SN is liable for the negligent breach of obligations whose fulfillment is essential for the proper performance of the contract, whose breach jeopardizes the achievement of the contractual purpose, and on whose compliance the client may regularly rely (cardinal obligations). In the latter case, however, SN is only liable for foreseeable, typical contractual damages. The same applies to breaches of duty by our officers, employees, and other staff, representatives, and vicarious agents. Liability for lost profits is excluded. Moreover, to the extent that the typical, foreseeable contractual damages are not lower, liability for pecuniary losses is limited to a maximum of €250,000 per claim. The aforementioned exclusions of liability do not apply to injury to life, body, or health. Liability under the Product Liability Act (ProdHG) remains unaffected.
(2.) If damage is attributable to both SN's and the client's fault, the latter must accept a deduction for his contributory negligence. 4
(3.) SN is liable for data recovery only if the client has ensured that lost data can be recovered with reasonable effort. The client is therefore obligated to back up data and programs regularly at intervals appropriate to the application.
(4.) SN shall not be liable in cases of force majeure – such as, in particular, war, civil unrest, natural disasters/forces, fire, sabotage, aircraft crashes on data center premises where systems are operated for the client, epidemics, quarantine, government measures, strikes, lockouts or similar events – for delays or failure to perform its contractual obligations.
(5.) Cases of force majeure shall also include attacks on computer systems of SN and the client and individual computers of SN and the client as well as cloud systems from outside, which cannot be defended against with technically and economically reasonable effort according to the state of the art and which impair the functionality of the affected computer system to a more than negligible extent.
(6.) SN is released from its performance obligations for the duration of any impediment to performance as defined in Section 9 (4.) and Section 9 (5.). If the company is unable to execute the order or deliver the goods for more than one month due to force majeure, the customer is entitled to withdraw from the contract.
§ 10 Confidentiality, Data Protection
(1.) The contracting parties undertake to treat as confidential all items (e.g., software, documents, information) received from or becoming known to them by the other contracting party before or during the performance of this contract, which are legally protected, contain trade or business secrets, or are designated as confidential, even after the termination of this contract, unless they are publicly known without breach of the confidentiality obligation. The contracting parties shall store and secure these items in such a way as to prevent access by third parties. (2.) The client shall only make the contractual items accessible to employees and other third parties who require access to perform their duties. The client shall instruct these persons about the confidential nature of the items.
(3.) SN complies with all data protection requirements, in particular the provisions of the German Telemedia Act and the German Federal Data Protection Act. Personal data of the client is generally stored only for the processing and fulfillment of the order and is not disclosed to third parties. The client has the right to revoke their consent to the storage of their personal data, granted upon conclusion of the order, at any time in writing or text form.
(4.) SN may name the client as a reference customer after successful completion of the services.
(5.) SN shall also communicate the obligations regarding data protection and confidentiality arising from this contract in writing to the third party involved (e.g. subcontractors) and provide written proof of this to the client upon request.
§ 11 Protection of intellectual property, property rights
(1.) SN grants ownership to the client of items to be provided permanently under the contract (with the exception of software) upon their creation and in their respective stage of processing, provided that the client has paid the agreed remuneration for this.
(2.) SN grants the client simple, transferable, unlimited rights of use, in terms of time, location and content, to results developed individually and exclusively for the client, in particular to software created and other copyrighted work results created individually for the client, subject to full payment of the agreed remuneration.
(3.) Notwithstanding the scope of the transfer of rights to the client, SN is permitted, subject to any other agreement and in compliance with the confidentiality obligations under Section 10, to use ideas, concepts, acquired know-how, etc. for the further development of software and within the scope of orders from other clients.
§ 12 Termination of Contract
(1.) The client may terminate an order at any time with two weeks' notice. In the event of termination, SN is entitled to full payment for services rendered up to the effective date of termination, as well as 25% of any additional agreed-upon compensation. Section 648 of the German Civil Code (BGB) does not apply.
(2.) Notices of termination must be in writing in accordance with the law.
§ 13 Set-off, rights of retention
The client is only entitled to set-off if their counterclaims have been legally established or are undisputed. The client is only entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
§ 14 Duty of loyalty, right to issue instructions
(1.) The parties undertake to act loyally towards each other. They shall inform each other immediately of all circumstances that arise during the course of the cooperation and that may affect the performance of the services. In particular, the parties shall refrain from actively recruiting or employing (e.g., as freelancers or as employees of a third party) any employees of the other party who are or were involved in the performance of the contract, including freelance and self-employed work. The foregoing obligation shall also apply for a period of twelve months after the termination of the contract.
(2.) Furthermore, the parties undertake to immediately inform the other party of any intentions to terminate or change the employment of employees assigned to perform the contract that come to their attention.
(3.) SN provides its services independently and on its own responsibility. The employees deployed by SN are subject solely to SN's right to issue instructions.
§ 15 Final Provisions
(1.) Amendments and supplements to this agreement must be in writing. This requirement of written form can only be waived in writing. Transmission in text form, in particular by fax or email, is sufficient to satisfy the written form requirement.
(2.) The laws of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The place of performance and jurisdiction for all disputes arising from or in connection with this contract shall be Öhringen.
(3.) Should one or more of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions.