Terms of Service
§ 1 Scope
(1.) These general terms and conditions (GTC) apply to all business relationships with our business partners (“client”). The terms and conditions only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) Subject to deviating agreements in individual cases, these GTC apply exclusively. By placing the order, the client agrees to our terms and conditions. Conflicting or deviating conditions of the client are only binding for SMART NUMBERS (hereinafter SN) if they are expressly recognized in writing by SN.
(3). Individual agreements made with the client in individual cases (including ancillary agreements, additions and changes) always take precedence over these GTC. Subject to proof to the contrary, a written contract or a written confirmation from SN is authoritative for the content of such agreements.
(4.) These general terms and conditions apply to all IT and consulting services from SN for the
Clients (e.g. IT consulting, development, implementation, training and application support services, workshops).
§ 2 Conclusion of contract
(1.) The conclusion of a contract with SN presupposes that the customer accepts an offer from SN or receives a written order confirmation from SN or that SN begins to perform the services. If SN issues a written order confirmation, this is decisive for the content and scope of the contract, unless otherwise agreed in writing.
(2.) Changes, ancillary agreements and additions as well as any quality agreements or the assumption of guarantees require an express and written agreement to be effective.
§ 3 Obligations to perform
(1.) The contracting parties work together in partnership in the performance of the services and engage in a regular exchange of information.
(2.) Before the start of the service provision, the customer appoints a representative who is responsible for initiating and coordinating all necessary measures for the execution of the order and who is the sole contact for SN with regard to all normal matters of the respective order. This representative of the client is authorized to receive and make all declarations in connection with the order.
(3.) The transfer of the provision of contractual services to third parties (e.g. subcontractors) by SN must be communicated to the customer in advance in text form. The client is entitled to object to the use of a third party in text form within seven working days. However, the use of the third party must not be unreasonably refused. Affiliates with SN i. s.d. § 15 ff. AktG are not third parties within the meaning of the contract.
§ 4 Performance time
(1.) The service times result from the contractual agreements.
(2.) Without a reminder, a party is only in default if a date has been set as binding.
(3.) The obligation to meet deadlines and deadlines presupposes the complete and timely fulfillment of the other party's obligations. Otherwise, subsequent deadlines of the other party are extended appropriately.
(4.) Delays due to force majeure - see also § 9 (4.) - SN is not responsible.
§ 5 Terms of Payment
(1.) All agreed prices do not include the applicable value added tax at the time the service is provided.
(2.) Payments are due within 14 days of receipt of the invoice.
(3.) Subject to deviating agreements, the client pays SN a flat-rate fee per fixed time unit. Insofar as remuneration according to daily rates has been agreed, these are calculated on the basis of an eight-hour person day.
(4.) For remuneration based on time spent, SN provides proof of performance through entry receipts.
(5.) SN creates a verifiable invoice for each payment claim, which details the services.
(6.) Unless otherwise agreed, SN will receive a lump sum of nine percent of the net remuneration for the travel expenses; there is no individual billing.
§ 6 Cooperation obligations of the customer
(1.) The contractual IT services require intensive collaboration and cooperation in order to be carried out successfully. The obligations to cooperate and provide information listed below are the main obligations of the customer, which he performs at his own expense and risk: naming and ensuring the availability of a representative for the duration of the order; Granting of the access rights to premises, systems and software programs required for the contractual provision of services for the employees of SN; Provision of the necessary hardware and software including the necessary software licenses; Carrying out regular data backups, agreed tests and carrying out and participating in any necessary acceptance tests.
(2.) The client shall inform the contractor immediately if he discovers 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 in accordance with Art. 33, 34 GDPR or another statutory reporting obligation applicable to the client, the client is responsible for compliance.
§ 7 (partial) acceptance
(1.) The client is - if necessary - obliged to accept the services of SN. Minor defects that do not seriously impair the suitability of the service for the contractually specified purpose do not entitle the customer to refuse acceptance. The customer's right to assert statutory claims for defects remains unaffected by this.
(2.) Acceptance is deemed to have been granted if (a.) the customer declares acceptance in violation of
§ 7 (1.) above or refuses to participate in a joint acceptance test despite a timely request; (b.) the customer does not declare acceptance in writing after a joint acceptance test has been carried out or refuses acceptance in writing with a specific description of the defects preventing acceptance, although he was requested to do so by SN with a period of at least seven working days.
(3.) In the case of self-contained partial services, SN is entitled to partial acceptance. 3
(4.) Intellectual services that require acceptance shall be deemed to have been accepted unless the customer expressly raises reservations in writing within 30 days of their provision and specifically describes defects. If a reservation by the customer proves to be unjustified, he must bear the costs incurred, unless he is only guilty of slight negligence. Services, in particular consulting and support services, are not accessible as services for acceptance unless the need for acceptance of the service has been expressly determined. SN must remedy defects that prevent acceptance immediately and submit the affected service for acceptance again. The above regulations apply accordingly to renewed acceptance.
(5.) In the event of defects that prevent acceptance, SN must be given at least three opportunities for subsequent performance within appropriate periods. The client grants SN access to the object of performance for troubleshooting and troubleshooting, at SN's discretion directly and/or by means of remote data transmission.
(6.) In the event that the supplementary performance has failed even after the expiry of the third reasonable period, the client can - without prejudice to any existing claims for damages - reduce the agreed remuneration or withdraw from the contract. SN's obligation to pay damages or reimbursement of the client's expenses is finally regulated in § 9.
§ 8 Warranty, Statute of Limitations
(1.) The client is only entitled to rights under Section 634 Nos. 2 to 4 of the German Civil Code under the prerequisite of Section 7 (5); § 9 also applies to compensation for damages and futile expenses.
(2.) The customer can only demand a reverse transaction in the case of defects that would have entitled him to refuse acceptance according to § 7.
(3) The statutory statute of limitations shall apply to the claims of the contracting parties, unless otherwise specified below.
(4.) The limitation periods are, except in the case of intent, gross negligence, personal injury and claims under the ProdHaftG: Generally for rights from material defects: 12 months from the start of the statutory limitation period; for claims from defects of title: 12 months from the start of the statutory limitation period if the defect of title is not due to a right in rem of a third party, on the basis of which he can demand the services of SN; in the case of claims for damages or reimbursement of futile expenses that are not based on defects in quality or title: 12 months from the start of the statutory limitation period.
Section 9 Liability, Force Majeure
(1.) SN is liable for intent and gross negligence. Furthermore, SN is liable for the negligent breach of obligations, the fulfillment of which is essential for the proper execution of the contract, the breach of which jeopardizes the achievement of the purpose of the contract and the observance of which the customer can regularly rely on (cardinal obligations). In the latter case, however, SN is only liable for the foreseeable, contract-typical damage. The same applies to breaches of duty by our bodies, employees and other employees, representatives and vicarious agents. Liability for lost profits is excluded. Liability is also limited to a maximum of EUR 250,000 for financial losses per claim, provided that the foreseeable damage typical of the contract is not lower. The above exclusions of liability do not apply in the event of injury to life, limb or health. Liability under the Product Liability Act (ProdHG) remains unaffected.
(2.) If damage is due to fault on the part of SN as well as fault on the part of the client, the latter must allow their contributory negligence to be taken into account 4
(3.) SN is only liable for the recovery of data if the client has ensured that lost data can be restored with reasonable effort. The client is therefore obliged to regularly back up data and programs at intervals appropriate to the application.
(4.) SN is not liable in cases of force majeure - such as in particular war, civil unrest, natural disasters/violence, fire, sabotage, plane crashes on data center areas in which systems are operated for the client, epidemics, quarantine, government measures, strikes, Lockout or similar for delays or non-fulfillment of his contractual obligations.
(5.) Attacks on the computer systems of SN and the client and individual computers of SN and the client as well as cloud systems from outside are also considered cases of force majeure, which cannot be averted with technically and economically justifiable effort according to the state of the art and which affect the affected computer system functionally not only insignificantly.
(6.) For the duration of a performance hindrance according to § 9 (4.) and § 9 (5.) SN is released from its performance obligations. 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 keep all objects (e.g. software, documents, information) that they receive or become aware of from the other contracting party before or during the execution of the contract, which are legally protected or contain business or trade secrets or are designated as confidential , to be treated confidentially even after the end of the contract, unless they are publicly known without violating the duty of confidentiality. The contractual partners keep and secure these items in such a way that access by third parties is excluded. (2.) The client only makes the contractual items accessible to employees and other third parties who need access to carry out their official duties. He instructs these persons about the confidentiality of the objects.
(3.) All data protection requirements, in particular the specifications of the Telemedia Act and the Federal Data Protection Act, are observed by SN. Personal data of the client are only stored for the execution and processing of the order and are not passed on to third parties. The client has the option at any time to revoke the consent to the storage of his personal data given upon completion of the order in writing or in text form.
(4.) SN may name the client as a reference customer after the services have been successfully completed.
(5.) SN must also pass on the obligations regarding data protection and confidentiality from this contract to third parties involved (e.g. subcontractors) in writing and provide written evidence of this to the customer upon request.
§ 11 Protection of Intellectual Property, Proprietary Rights
(1.) SN grants the customer ownership of items to be provided on a permanent basis (with the exception of software) with their creation and in their respective processing status, insofar as the customer has paid an agreed fee for this.
(2.) Subject to full payment of the agreed remuneration, SN grants the customer simple, transferrable rights of use that are unrestricted in terms of time, space and content for results developed individually and exclusively for the customer, in particular for software created and other copyrighted work results created individually for the customer a.
(3.) Irrespective of the extent of the transfer of rights to the customer, SN is permitted, subject to a different agreement, in compliance with the confidentiality obligations according to § 10, ideas, concepts, acquired know-how, etc. for the further creation of software and in the context of orders other clients to use.
§ 12 Termination of Contract
(1.) The client can properly terminate an order at any time with a notice period of two weeks. In the event of an ordinary termination, SN is entitled to full remuneration for the services rendered up to the effective date of the termination as well as 25% of the additional agreed remuneration. § 648 BGB does not apply.
(2.) Notices of termination must be given in the statutory written form.
§ 13 Offsetting, rights of retention
The customer only has the right to offset if his counterclaims have been legally established or are undisputed. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 14 Loyalty obligations, right to issue instructions
(1.) The parties commit to mutual loyalty. They inform each other immediately about all circumstances that arise in the course of the cooperation and can influence the provision of services. In particular, the parties will refrain from actively (e.g. as freelancers or as employees of a third party) recruiting or recruiting employees of the other party who are or were active in the execution of the order, including freelancers and independent work are to be understood. The above obligation also applies for a period of twelve months after the end of the contract.
(2.) Furthermore, the parties undertake to notify the other party immediately of any intentions to terminate or change employees employed to carry out the order that have come to their knowledge.
(3.) SN provides its services independently and on its own responsibility. The employees deployed by SN are solely subject to SN's right to issue instructions.
§ 15 Final Provision
(1.) Changes and additions to the contract must be made in writing. The written form requirement can only be waived in writing. Transmission in text form, in particular by fax or e-mail, is sufficient to ensure compliance with the written form.
(2.) The law of the Federal Republic of Germany applies to the exclusion of the UN Sales Convention. Place of performance and place of jurisdiction for all disputes arising from and in connection with this contract is Öhringen.
(3.) Should one or more of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions.