General Terms and Conditions of the SMARTCRM GmbH
1. Scope of application
1.1 The customer acquires from the SMARTCRM GmbH (hereinafter SMARTCRM) the services and contractual objects referred to in the corresponding contract / order under the following General Terms and Conditions (hereinafter collectively referred to as “GTC”).
1.2 Customers in the meaning of this GTC are exclusively entrepreneurs as defined in Art. 14 German Civil Code (Bürgerliches Gesetzbuch – BGB).
1.3 All deliveries, services and offers by SMARTCRM shall be made exclusively on the basis of these GTC, unless otherwise provided in the respective individual contracts. Said conditions shall form an integral part of all contracts that SMARTCRM concludes with the customer concerning the services and subjects of the contract offered.
1.4 Conflicting or deviating GTC or other limitations of the customer shall not apply, unless SMARTCRM has expressly agreed to them in individual cases before the conclusion of the contract.
Purchase of Standard Software
2. Contractual object
2.1 The customer acquires from SMARTCRM the standard software (hereinafter standard software) referred to in the corresponding contract / order as well as the associated application documentation in electronic form (hereinafter application documentation) in the language specified there.
2.2 For the quality of the contractual objects delivered by SMARTCRM, the specification of services valid at the conclusion of the contract and supplied to the customer is exhaustively significant. SMARTCRM shall not be responsible for any further condition. The customer cannot derive any such obligation in particularly from other depictions of the contractual objects in public statements or advertising of SMARTCRM or on the part of its employees or its distribution partners, unless SMARTCRM has expressly confirmed in writing the further properties or qualities.
3. Cooperation and information obligations of the customer
3.1 The customer has learned about the major function features of the standard software and assumes the risk as to whether they meet his requests and needs. In case of doubt, the entrepreneur should seek advices before the conclusion of the contract from a SMARTCRM employee or from knowledgeable third parties.
3.2 Unless otherwise agreed, the establishment of a functional and adequately dimensioned hardware and software environment, also taking into account the additional burden of the standard software is the sole responsibility of the customer. In this context, SMARTCRM has no obligation to warn or advice.
3.3 The customer shall observe the instructions provided by the software manufacturer for the installation and the operation of the standard software.
Software maintenance and support
4. Contractual object
4.1 Where agreed under a separate contract / order, SMARTCRM shall provide as maintenance services (I) the transmission of further developed standard versions of the program (updates), (II) the elimination of program errors and (III) the agreed consultancy and support services at the agreed reaction times and the service level referred to in the corresponding contract / order.
4.2 Program errors are defined as deviations from the properties that the program should have or must have for their normal use according to the respective individual contract agreements and performance descriptions.
4.3 Maintenance shall start with the delivery of the contractual objects, unless otherwise specified in the individual agreement.
4.4 Unless otherwise agreed, the customer is responsible for the installation of SMARTCRM’s further developed versions of the standard software.
4.5 The individual contractual agreements shall apply to the execution of the error correction and the agreed consulting and support services.
4.6 The contractually agreed warranty obligations shall apply. The statutory warranty obligations shall remain unaffected.
Other IT specific services
5. Contractual object
5.1 Where agreed in a separate individual contract, SMARTCRM carries out special and customized settings within the standard software (following configuration).
5.2 Configurations are for instance adaptations by means of configuration tools by SMARTCRM or the adaptations of standard values in tables. SMARTCRM strictly follows the requirements of the customer when carrying out the configurations.
6. Contractual object
6.1 If agreed separately in the contract, SMARTCRM shall assume the introduction and training of the customer’s employees in accordance with the applicable price lists. During training, the customer’s employees shall be familiarized with the operation of products and applications of SMARTCRM either in a standard or in an individual training course.
6.2 The removal of errors in the program is not included in the training. Troubleshooting is more a matter of warranty or maintenance within or outside the respective maintenance contract.
6.3 If the customer refuses to participate in any training course by SMARTCRM, SMARTCRM shall refer to the application instructions described in the application documentation for the application implementation, in particular to the hardware and software environments, which must be forwarded to the customer.
7.1 The customer shall support SMARTCRM to the appropriate extent in the performance of the contractual agreed services. Where necessary, the customer will provide all the needed conditions for the proper order execution of the contract. For this intent, he will in particular provide the relevant information and if necessary, allow remote access to the customer system. The customer also ensures that skilled personnel are available to support SMARTCRM.
7.2 Should SMARTCRM employees temporarily work on the customer’s premises to perform services, then these employees are not subject to instructions from the customer regarding the time and the manner of the performance of the services. However, the customer’s house regulations as well as the operational safety instructions apply to these employees.
7.3 Insofar agreed in the contract that services can be provided at the customer’s premises, the customer shall provide SMARTCRM with a sufficient number of work places free of charge.
7.4 The contact persons of the contract partners are exclusively the designated individuals in the respective contract / order. The communication between the customers and SMARTCRM takes place via these contact partners – unless otherwise agreed. Pertinent communications related to the obligations from the relevant contract / order can only be given by the designated individuals. The contact persons must immediately make all decision regarding the implementation of the contract. The decisions must be documented.
8. Remuneration and terms of payment, prohibition of set-off
8.1 The remuneration to be paid and its due date shall be the result of the respective individual contractual agreement and the valid SMARTCRM price list at the time of the conclusion of the contract. The prices are subject to the statutory value-added tax.
8.2 The customer is entitled to use the software beyond the usage rights defined in these GTC only with the prior written consent of SMARTCRM. In the event of excessive use without consent (in particular by a simultaneous use of a greater number of users as agreed), SMARTCRM is entitled to charge the amount of the price list valid at this time as far as the customer does not prove a lower damage. Any further claims for damage beyond the scope of the contract remain unaffected.
8.3 The prices for deliveries and services provided by SMARTCRM do not include transport and packaging of physical shipping. When the retrieval is processed via a network, SMARTCRM shall carry the costs for placing the contractual objects on the network in a retrievable manner and the customer shall receive the costs for the retrieval.
8.4 The customer may only set off with undisputed or legally established claims or exercise any retention right. In the event of defects, the customer can only withhold a portion of the payment to an extent of the seriousness of the defect and only if the defect exists beyond any doubt. The customer has no retention right if his claim for defect is statute-barred.
9. Rights of use
9.1 Unless otherwise agreed, SMARTCRM grants the customer a simple, non-exclusive, unlimited, in terms of time and place, right of use of the standard software for individual or multi-user environment in the respective contract / order.
9.2 The customer may use the standard software only in the purpose of settling his internal business transactions and those of companies connected with him within the meaning of Art. 15 Stock Corporation Act (Aktiengesetz – AktG).
9.3 Duplication of the software is only permissible to the extent that this is necessary for the contractual use. The customer may make backup copies of the standard software according to the code of practice to the necessary extent. Backup copies on movable data carriers shall be marked as such and shall bear the copyright notice of the original data carrier.
9.4 The customer is authorized to make changes, extensions and other revisions of the standard software within the meaning of Art. 69 c No. 2 of the German Copyright Act (Urheberrechtsgesetz – UrhG) only to the extent that the laws permits such an amendment. The customer shall allow SMARTCRM two attempts to eliminate the error before remedying himself or by third parties. Unless otherwise agreed, the customer shall not have any right of use or exploitation such as processing – beyond the rights of use granted under these terms and conditions.
9.5 The customer is entitled to decompile the standard software within the limits of Art. 69 e of the German Copyright Act (Urheberrechtsgesetz – UrhG) and this only if SMARTCRM has not provided the necessary data and / or information within an adequate deadline, in order to ensure interoperability with other hardware or software.
9.6 If SMARTCRM supersedes the customer within the framework of improvement or supplementary maintenance (for instance: patches, additions to the application documentation) or a reissue of the standard software (for instance: update, upgrade), which replaces the previously used software, these are subject to the provisions of these GTC.
9.7 If SMARTCRM provides a new version of the standard software, so the powers of the customer with respect to the old standard software also expire even without explicit demand of return by SMARTCRM, as soon as the customer makes use of the new standard software productively. However, SMARTCRM grants the customer a three-month transition phase in which both versions may be used side by side.
9.8 A reproduction or an adaptation of the application documentation – subject to the provisions of 9.4 and 9.5 (insofar as the documentation is integrated into the standard software) – is prohibited
10. Protection of the standard software
10.1 Unless expressly granted to the customer, all rights regarding the standard software (and all copies made by the customer) – in particular the copyright, the rights to or in inventions as well as the technical protective right – are exclusively entitled to SMARTCRM. This also applies to the processing of the standard software by SMARTCRM. The ownership rights of the customer on the respective data carriers remain unaffected.
10.2 The customer shall carefully keep the provided standard software to prevent misuse.
10.3 The customer is not allowed to modify or remove the copyright notices, marks and / or control numbers or characters of SMARTCRM.
10.4 As agreed by the customer, he shall keep a record of the copies of the standard software, as well as their whereabouts, and shall provide SMARTCRM with information and insight upon request.
11. Transfer of the standard software
The customer may only cede the standard software to a third party in a uniform, complete and definitive manner of the use of the standard software. Temporary or partial remuneration for third parties is forbidden, regardless of whether the standard software is provided in physical or non-physical form. The same shall apply for unpaid transfer.
12. Defect as to quality and defect of title, other impairments of the performance of an obligation, statute of limitation
12.1 SMARTCRM shall initially provide warranty with rectification in the case of quality defect. To this end, SMARTCRM shall cede new or faultless contractual objects or eliminate the defect; if SMARTCRM shows the customer reasonable possibilities to avoid the effects of the defect, this also apply as a defect clearance.
12.2 SMARTCRM shall initially provide warranty with rectification in the case of defect of title. To this end, SMARTCRM shall provide the customer with a legally impeccable use of the delivered contractual objects or of exchanged or modified equivalent contractual objects.
12.3 SMARTCRM shall be entitled to make the rectification conditional on the customer having paid at least a reasonable portion of the remuneration.
12.4 The customer undertakes to accept the new contractual objects if the scope of the contract is maintained and if takeover does not lead to significant disadvantages.
12.5 Should the subsequent rectifications fail twice, the customer is entitled to set a reasonable period of grace to remedy the defect. He shall explicitly state in writing that he deserves the right to rescind the contract and / or to demand compensation in the event of a new defect.
12.6 Should the rectifications fail again in the period of grace, the customer may withdraw from the contract or reduce the remuneration unless the defect is minor. SMARTCRM shall pay compensation or reimbursement of expenses incurred in vain within the limits set out in these GTC. After the expiry of a period set in accordance with sentence 1, SMARTCRM may require from the customer to exercise his rights resulting from the period within 2 weeks after receipt of the request. After the deadline, the right of decision will be transferred to SMARTCRM.
12.7 If SMARTCRM provides services for trouble-shooting or their elimination, SMARTCRM may demand compensation in accordance with the usual rates. This applies in particular if a defect is unverifiable or not attributable to SMARTCRM. In addition, SMARTCRM’s extra costs and efforts shall be compensated since the customer has not fulfilled his obligations properly. This applies in particular to the cost of error localization and to expenses incurred by SMARTCRM due to the fact that no daily backup is available.
12.8 If third-party claims to prevent the customer from exercising the rights conferred to him by the contract, the customer shall immediately and comprehensively inform SMARTCRM in writing.
12.9 The customer can derive rights from other SMARTCRM breaches of obligations only if he has written such a complaint against SMARTCRM and has granted a period of grace to remedy the defect. This should not apply if a remedy is not taken into account according to the type of the breach of obligation. For compensation or reimbursement of expenses incurred in vain, the limits set out in these GTC will apply.
12.10 The statute of limitations for all warranty claims shall be one year and shall begin with the delivery or provision of the contractual objects in a network available for download by the customer (as well as the notification of the customer).
12.11 In case of intent or gross negligence of SMARTCRM, in case of fraudulent concealment of the defect, in case of personal injury or defect in title in the meaning of Art. 438 section 1 No. 1 a German Civil Code (Bürgerliches Gesetzbuch – BGB), as well as for guarantees (Art. 444 German Civil Code – BGB), the legal statutes of limitation apply, as well as in case of claims according to the Product Liability Act.
12.12 Defect as to quality cannot be claimed for a minor deviation from the contractual properties of the goods. Claims for defects shall not be caused by excessive or improper use, natural wear, failure of components in the system environment, non-reproducible software errors or otherwise detectable by the customer or damage resulting from special external influences which are not presumed under the contract. This also applies to subsequent alteration or repair by the customer or third parties, unless this makes the analysis and elimination of the defect more difficult.
13. Third-party rights
13.1 SMARTCRM guarantees the agreed quality of the contractual objects and that the use of the contractual objects by the customer within the scope of the contract does not infringe with the rights of third parties. Without an explicit agreement, the guarantee is valid for the country in which SMARTCRM is based.
13.2 In the event that a third party asserts to the customer that a service of SMARTCRM infringes upon his rights, the customer shall inform SMARTCRM without delay. SMARTCRM and, where applicable, its suppliers shall be entitled but not obliged to defend the asserted claims at their expenses. The customer shall not be entitled to recognize third party claims before giving SMARTCRM the appropriate opportunity to defend the rights of third parties in a different manner.
13.3 Should the rights of third parties be infringed by SMARTCRM, SMARTCRM shall at its discretion and its own expense
- a) give the customer the right to use the service,
- b) design the service so that it no longer infringes upon any rights or
- c) take back the service and reimburse the customer’s remuneration (minus an appropriate sum for usage), if SMARTCRM cannot achieve any redress with reasonable effort. The interests of the customers should thereby be adequately taken into account.
14. Time of delivery and performance, force majeure, passing of risk, transport
14.1 In the absence of any other agreement, the contractual objects shall be delivered in the current version at the date of delivery. Delivery times are agreed in the respective contract / order.
14.2 The customer shall ensure that the contractual objects can be delivered at the agreed date of delivery in the contract / order.
14.3 The delivery of the standard software is effective when SMARTCRM either (I) cede a program copy of the software on a compact disc (CD) to the customer or (II) place the contractual objects on the network available for download as well as notify the customer.
14.4 In the event of physical shipping, the date and time at which SMARTCRM delivers the contractual objects to the consignor shall be relevant for the compliance of delivery dates and transfer of risks. At the written request of the customer, SMARTCRM shall conclude appropriate freight insurance at the expense of the customer.
14.5 Otherwise, the point in time at which the contractual objects are provided for retrieval on the network and the notification of the customer of this, shall apply for compliance of delivery dates and transfer of risks. If the software or application documentation is damaged or destroyed after the transfer of risk, SMARTCRM will deliver a replacement upon reimbursement of the copying and shipping costs.
14.6 As long as SMARTCRM (I) waits for participation or information from the customer or (II) is impaired by strikes and lock-outs in third-party companies or its own company (in the latter case, only if the labor struggle is legal), official interventions, legal prohibitions or other circumstances beyond its control (“Force majeure”), then the time of delivery and performance shall be extended by the duration of the impediment (“down time”) and no breach of obligations occurs for the period of the down time. SMARTCRM shall immediately notify the customer of such impediments and their foreseeable duration. If the force majeure continues uninterruptedly for more than 3 months, both parties will be released from their performance obligation.
15. Obligation of inspection and notification
The customer shall be subject to an obligation of inspection and notification in respect of all deliveries and services by SMARTCRM in accordance with Art. 377 of the German Commercial Code (Handelsgesetzbuch – HGB) in carrying out the respective contract / order.
16. Reservation of title
16.1 SMARTCRM retains the ownership of all delivered contractual objects till all main and ancillary claims from the contractual deliveries and performances of SMARTCRM are paid.
16.2 The customer’s claims arising out of a resale or any other legal basis against third parties, including all ancillary rights, are hereby already transferred to SMARTCRM for the purpose of securing and also to the extent that the reserved contractual objects are processed or installed. In the latter case, the assignment covers the portion of the claim value that the reserved contractual objects have in relation to the total item.
16.3 As long as the customer meets his payment obligations against SMARTCRM, he is entitled to collect the claims assigned to SMARTCRM on behalf of SMARTCRM in his own name. At the request of SMARTCRM, the customer shall be informed of the status of the assigned claims. SMARTCRM accepts the transfer of receivables.
16.4 SMARTCRM shall bear the risk of non-delivery by third-party companies, only if the order has not been placed with the supplier in time or if SMARTCRM can be held responsible for this.
17.1 The liability of SMARTCRM, regardless of the legal reason, is limited to the contract-typical foreseeable damage.
17.2 This does not apply to:
- a) the breach of contractual duties, i.e. contractual obligations, the fulfillment of which enables the proper implementation of the contract at first and for its compliance on which the customer regularly relies and may rely (cardinal obligations),
- b) damages to body, life and health,
- c) intentional or grossly negligent breach of obligations by SMARTCRM, its legal representatives or its vicarious agents,
- d) the liability according to the product liability law and
- e) claims from the warranty.
17.3 SMARTCRM reserves the right of defense of contributory fault.
17.4 The statutory periods of limitations apply to these claims.
18. Confidentiality and data protection
18.1 The contracting parties undertake to treat as sensitive all information and trade secrets of the respective other contract partner and to use them only in the purpose of the execution of the respective contract / order in the course of the contract initiation and execution. By failure to conclude a contract, the customer shall return any provided documents, cost estimations and / or test programs to SMARTCRM .
18.2 The customer shall make the deliveries and services of SMARTCRM only available to employees and other third parties, insofar as this is required for the exercise of the rights of beneficial use. He shall inform all persons to whom he grants access to the deliveries and services about the rights of SMARTCRM and the obligation of confidentiality and shall require the preservation and use of the information to the extent specified under section 18.1 of these individuals in writing, only as far as the individuals concerned are not obliged to maintain secrecy, at least to the extent described above, for other reasons.
18.3 The above-mentioned obligations shall not apply for trade secrets, (I) which were already known at the time of it being disclosed by a contract partner or were known by the other contracting party; (II) which become manifest after their disclosure by a contract partner without the fault of the other contract party; (III) which have been made accessible in a non-unlawful manner and without restriction in respect of confidentiality or exploitation upon their transmission by the contract partner to the contract party; (IV) which have been independently developed by one contracting party without the use of the trade secrets of the contract partner; (V) which must be published in accordance with the law, the regulations or the judicial decision, provided that the publishing party informs the contracting partner immediately thereof and supports it in the defense of such orders or decision; or (VI) insofar as the contract partner is permitted to use or pass on the trade secrets on the basis of mandatory legal provisions or on the basis of this contract.
18.4 SMARTCRM follows the rules of data protection, in particular when the customer grants SMARTCRM access to its operation or to its hardware and software. SMARTCRM shall ensure that its own fulfillment requirements also comply with these provisions, in particular, they must commit to respect data confidentiality by SMARTCRM prior to commencing their activities. SMARTCRM is not intended to process or use personal data on behalf of the customer. On the contrary, a transfer of personal data only occurs in exceptional cases as a secondary succession of the contractual services of SMARTCRM. The personal data will be handled by SMARTCRM in accordance with data protection regulations.
18.5 Insofar as SMARTCRM (I) receives access to personal data which are used or processed by the customer (hereinafter referred to as partner data), and / or (II) will otherwise process or use the partner data in the course of the contractual owed services within the framework of SMARTCRM’s contractual obligations, this is done on behalf of the customer according to Art. 28 GDPR (General Data Protection Regulation). This also applies in the context of mere auditing or maintenance work on IT systems or on the software located on the IT systems.
19. Closing regulations
19.1 The exclusive place of jurisdiction for all disputes arising from and in connection with contracts between SMARTCRM and the customer is the place of business of SMARTCRM. SMARTCRM shall also be entitled as plaintiff to choose the place of jurisdiction at the customer’s place of business. The right of the contracting parties to seek interim legal protection before the courts competent under the statutory provisions shall remain unaffected.
19.2 German law shall exclusively be applicable with the exclusion of the UN Sales Convention (Convention on the International Sale of Goods – CISG).
19.3 The conclusion of the contract between SMARTCRM and the customer as well as subsequent amendments and additions to the contract shall only be effective in writing.
19.4 Should a provision of these General Terms and Conditions be or become invalid, or contain an inadmissible deadline or a gap, the legal validity of the remaining provisions shall remain unaffected. Insofar as the ineffectiveness does not result from an infringement of Art. 305 et seq. German Civil Code (Bürgerliches Gesetzbuch– BGB), an effective provision which is the closest to the economic intention of the contracting parties instead of the invalid provision is then being reached. The same applies to the case of a gap. In the event of an unacceptable deadline, the legally permissible level shall apply.
Kandel, August 2019