Terms and Conditions (T&C) for Entrepreneurs
§ 1 Scope
1. These T&C apply to all contracts for the provision of services between Smart IT Alliance GmbH, represented by Managing Director Jennifer Behrens (hereinafter referred to as “Smart IT”), and its customers. These T&C apply exclusively to entrepreneurs.
2. These T&C apply to all contracts concluded between the parties, even if they do not explicitly refer to the T&C.
3. By placing an order, these T&C are deemed to have been accepted. Deviations from these regulations must be agreed in writing. Deviating general terms and conditions of the customer do not apply, even if Smart IT does not expressly object to them. Individual special agreements take precedence over these T&C; this does not apply to the customer’s pre-formulated contract terms.
4. The term “order” encompasses the contractual relationship regardless of the type of contract. Smart IT is responsible for providing the main service to the customer. The customer is obligated to pay the compensation to Smart IT.
5. Smart IT reserves the right to amend these T&C at any time. The version valid at the time of contract conclusion is decisive for new contracts or new orders.
§ 2 Conclusion of Contract / Right of Withdrawal by Smart IT in case of Non-Availability
1. The presentation of products in the online shop does not constitute a legally binding offer, but a request to order. By triggering the order via the online shop or by means of a written or electronic order, the customer submits a binding offer to conclude a purchase agreement. This offer can be accepted by Smart IT within 6 weeks and cannot be revoked by the customer during this period. The customer is only authorized to submit an offer if he is an entrepreneur. By submitting an offer, the customer confirms his status as an entrepreneur.
2. The information on the expected profits from the use of the purchased items are exclusively projections based on past profits. Since the operation of servers, whether for AI, deep learning, or graphic processing, is subject to significant fluctuations, no revenues can be guaranteed. Therefore, the information on Smart IT’s website does not constitute any guarantees or quality agreements.
3. The contract between the parties is concluded when Smart IT accepts this offer by sending an order confirmation. Contracts are concluded exclusively with entrepreneurs.
4. If an ordered item is not available because Smart IT is not supplied by its supplier, despite its contractual obligation, without any fault on its part, Smart IT is entitled to withdraw from the contract. In this case, Smart IT will immediately inform the customer that the ordered goods are no longer available and promptly refund any services already provided. In this case, the customer also has the option of receiving a comparable device. The yield of the server at the time of the order is used as the basis for comparability.
§ 3 Delivery and Delivery Delay
1. The delivery times indicated in the online shop as well as in the order confirmation are non-binding unless they are expressly designated as binding. The purchased items are ordered from upstream suppliers or from manufacturers only after the order has been placed and before the order is accepted. Due to the current market situation, there may be delays or changes in delivery times by the suppliers of Smart IT. In this respect, the customer will be informed of a specific delivery time at a later date.
2. The delivery/performance period is deemed to have been met if Smart IT has notified the customer of readiness for dispatch by its expiration or if the delivery/performance item has left Smart IT’s premises.
3. The delivery/performance period is extended or a delivery/performance date is postponed in the event of unforeseen obstacles and force majeure outside the control of Smart IT, e.g. operational disruptions – especially in the event of business closures or due to official orders – to the extent that such obstacles have a significant impact on the delivery of the delivery/performance item, which is proven. This also applies if the circumstances occur with subcontractors. The delivery/performance period is extended in accordance with the duration of such measures and obstacles. In important cases, such disruptions are communicated to the customer as soon as possible. If such disruptions lead to a delay in performance of more than four months, the customer may withdraw from the contract.
4. Smart IT shall not be held liable for delivery/performance delays due to one or more breaches of customer cooperation obligations.
5. Partial deliveries/performances are permissible within the delivery/performance periods indicated by Smart IT, provided that this does not result in any disadvantages for the use of the items.
6. After a non-binding delivery date or a non-binding delivery period has been exceeded for six weeks, the customer may request the seller to deliver. The seller shall be in default upon receipt of such request.
7. If the customer is entitled to compensation for damages due to delay, such compensation is limited to a maximum of 5% of the agreed purchase price in case of slight negligence by Smart IT. If the customer wishes to withdraw from the contract in addition to this, he must set a reasonable deadline for delivery to the seller after the relevant deadline has expired.
8. Claims for damages instead of performance due to slight negligence are excluded.
9. The limitations of liability and exclusions of liability in this section do not apply to damages resulting from grossly negligent or intentional breaches of duties by the seller, its legal representative, or vicarious agents, as well as in cases of injury to life, body, or health.
10. Design or shape changes as well as changes in the scope of delivery by the manufacturer remain reserved during the delivery period, provided that the changes or deviations are reasonable for the customer considering the interests of the seller. If the seller or the manufacturer uses symbols or numbers to designate the order or the ordered item, no rights can be derived solely from this.
§ 4 Payment Terms
1. The compensation payable for the services will be invoiced in advance, unless otherwise agreed. Costs not included in the offer (performance-related price changes of the servers, e.g. in the case of pre-orders) are to be borne by the customer.
2. The customer automatically enters into default without the need for further reminders if the invoice is not settled within 7 days after it falls due.
3. Smart IT is entitled to invoice the customer a flat fee of 5.00 euros net for each reminder issued, regardless of any default by the contracting party, starting from the first reminder and for each subsequent reminder in the same matter.
4. The customer is not permitted to withhold payments due to any claims against Smart IT that are not recognized or judicially determined, nor is the customer allowed to set off such claims.
§ 5 Acceptance and Approval of Service
1. The customer is obliged to accept the service within 4 weeks after receipt. If the acceptance is not expressly refused after this period, it shall be deemed as accepted. In the case of significant deviations, Smart IT will rectify them within a reasonable period of time and submit the delivery/service object for re-acceptance. The first and second sentence also apply to any interim acceptances agreed upon, if applicable. In any case, acceptance shall be deemed as granted if the customer uses or pays for the delivery/service object.
2. After acceptance of the service by the customer, all warranty claims for defects that he knew or should have known about at the time of acceptance, or that he negligently failed to recognize, are excluded, unless he reserves the right to rectify the defect he has identified. If interim acceptances have taken place, the customer is also obliged to compensate Smart IT for any additional expenses incurred if changes have to be made due to errors that could have been detected by the customer during the interim acceptance.
3. The customer is obliged to accept the delivery/service object within 7 days, unless he is temporarily prevented from doing so through no fault of his own. Transfer of risk occurs in accordance with the statutory provisions.
4. If the customer deliberately or grossly negligently fails to accept the delivery/service object for more than 7 days after receipt of the notification of availability, Smart IT is entitled to withdraw from the contract and claim damages after setting a grace period of 14 days. Setting a grace period is not necessary if the customer clearly and definitively refuses to accept or is obviously unable to pay the remuneration during this time.
§ 6 Warranty for the Sale of Hardware and Software
1. Smart IT warrants that the contractual performance is free from defects. The absence of defects is determined based on the current performance description. Smart IT and the customer agree that any statements and descriptions of the hardware and software contained in the performance description and/or price list do not constitute guarantees or assurances of specific characteristics. This particularly applies to the indication of achievable profits.
2. The warranty period is two years and begins on the day of delivery. Any defects occurring during the warranty period must be promptly reported to Smart IT in writing. Any defects in the software must be reported in a reproducible and comprehensible manner.
3. Smart IT shall carry out rectification in the case of material defects at its own discretion, either by repair or replacement delivery. If the chosen method of rectification by Smart IT is unreasonable for the customer, the customer has the right to reject the chosen method. Smart IT is entitled to three attempts to rectify the same defect. The provision of a workaround solution shall also constitute rectification.
4. In the event that rectification is not possible or unreasonable for Smart IT, the customer has the right to rescind the contract after refunding any benefits received. However, the warranty for the absence of third-party rights with respect to the subject matter of the contract only applies to Germany.
5. If the customer asserts a warranty claim against Smart IT and it turns out that either no defect exists or the claimed defect does not obligate Smart IT to provide warranty, the customer shall compensate Smart IT for the expenses incurred, to the extent that the customer could have recognized that the defect was not caused by Smart IT.
6. The warranty is void, in particular, if the customer modifies or has the contractual performance modified by third parties without the consent of Smart IT, unless the customer proves that the defects in question were not caused, either wholly or partially, by such modifications.
7. In the event that the customer is entitled to compensation for delay or damages in lieu of performance, such compensation shall be limited to a maximum of 5% of the agreed purchase price in case of slight negligence on the part of Smart IT. If the customer wishes to terminate the contract in addition to that, they must grant the seller a reasonable period of time for rectification after the expiration of the relevant deadline.
8. Claims for damages instead of performance due to slight negligence are excluded.
9. The limitations of liability and exclusions of liability in this section do not apply to damages resulting from grossly negligent or intentional breaches of duties by the seller, its legal representatives, or its vicarious agents, as well as in cases of injury to life, body, or health.
§ 7 Warranty, Liability
1. The customer may assert warranty claims within a period of 2 years from acceptance of the deliverable.
2. Smart IT shall only be liable for further claims and rights in cases of intent and gross negligence in accordance with statutory regulations.
3. Claims for damages arising from tortious acts are excluded, unless the damage was caused intentionally or by gross negligence.
4. In cases of slight negligence, Smart IT shall only be liable for breach of a material contractual obligation or in case of default or impossibility.
5. Liability for slight negligence, tortious acts, and reimbursement of futile expenses shall only exist for damages that are foreseeable and typical, but shall be limited to a maximum of 30% of the remuneration for the performance causing the damage.
6. The foregoing provisions Nos. 2-5 shall also apply to acts of agents and vicarious agents of Smart IT.
7. Smart IT shall not be liable for indirect and consequential damages, such as lost profits, downtime, financial losses, data loss or data corruption.
8. Claims for damages shall become statute-barred after one year from the commencement of the statutory limitation period.
9. In cases of fraudulent intent, injury to life, body or health, defects in title, as well as liability under a warranty or the Product Liability Act, the liability limitations, limitation of liability period, and reduced warranty shall not apply.
§ 8 Disclaimer
1. Unless expressly agreed, Smart IT is not obliged to verify the legal permissibility of agreed services. If Smart IT is instructed to conduct such verification, the customer shall bear the resulting fees and costs of Smart IT and third parties, unless otherwise agreed.
2. The potential profits that can be achieved through the specific servers mentioned are not guarantees. Smart IT shall not be liable for these statements.
§ 9 Data Protection
1. The parties collect personal data of each other for the purpose of contract performance and to fulfill their contractual and pre-contractual obligations. The data collection and processing is necessary for the performance of the contract and is based on Article 6(1)(b) of the GDPR. Furthermore, the parties may also use each other’s data for self-promotion. This is based on Article 6(1)(f) of the GDPR. The data will not be disclosed to third parties, unless there is a legal obligation or it is necessary for the performance of the contract. The data will be deleted as soon as they are no longer necessary for the purpose of processing, unless there is a legal obligation to retain them. The data subject has the right to obtain free information about all personal data concerning him or her. The data subject also has the right to data portability, erasure, rectification, restriction of processing, or blocking of personal data. The data subject can address corresponding inquiries and requests directly to the respective contracting party. The data subject also has the right, without prejudice to any other administrative or judicial remedy, to lodge a complaint with a supervisory authority if he or she believes that the data processing activities of the respective contracting party violate data protection regulations.
2. Insofar as Smart IT processes personal data on behalf of the customer, the parties undertake to separately agree on a data processing agreement in accordance with Article 26 of the GDPR.
§ 10 Amendment of the General Terms and Conditions
1. Smart IT reserves the right to amend these General Terms and Conditions at any time. The version valid at the time of conclusion of contracts shall be decisive for new contracts.
2. A change to the agreed General Terms and Conditions is possible with regard to existing customers under the following restrictions: Circumstances justifying such a change are subsequent, unforeseeable changes that Smart IT did not cause and has no influence on, and which have a unilateral impact on one party, as well as gaps in the General Terms and Conditions that lead to difficulties in the performance of the contract. Smart IT will send the amended General Terms and Conditions to the customer six weeks before they come into effect, specifying the circumstances giving rise to the change and the extent of the changes. If the customer does not object to the change in writing or by fax before it comes into effect, but declares his or her consent to the new General Terms and Conditions by further use of Smart IT’s services, the change shall be deemed accepted; the General Terms and Conditions in their then amended version shall also apply to existing contracts as of the announced date. In the event of timely and valid objections, the previous General Terms and Conditions shall continue to apply between the parties; in this case, both the customer and Smart IT are entitled to terminate the contract with a notice period.
§ 11 Final Provisions
1. In all disputes arising out of the contractual relationship, if the customer is a merchant, a legal entity under public law, or a special fund under public law, the action shall be brought before the court competent for the registered office of Smart IT. Smart IT is also entitled to bring an action at the registered office of the customer.
2. German law shall exclusively apply, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods, even if the customer has its registered office abroad.
3. The transfer of rights and obligations of the customer arising from the contract concluded with Smart IT requires written consent to be effective.
4. If individual provisions of this contract prove to be wholly or partially invalid or unenforceable, or become invalid or unenforceable as a result of changes in legislation after the contract is concluded, the remaining provisions of the contract and the validity of the contract as a whole shall not be affected by this.
