1. These General Conditions of Sale shall apply to any and all business relations between Smart Data Security GmBH (hereinafter referred to as “Smart Data Security GmBH”) and the customer.
2. Any terms and conditions of the customer conflicting with, in addition to, or deviating from these General Conditions of Sale shall not form subject matter of the contract unless Smart Data Security GmBH consented to their applicability in writing. These General Conditions of Sale shall also apply in case Smart Data Security GmBH unconditionally effects delivery to the customer, having knowledge of its conflicting, additional, or deviating terms and conditions.
3. Any agreements between Smart Data Security GmBH and the customer made in addition to or deviating from these General Conditions of Sale and entered into for the purpose of performing a contract shall be laid down in the respective contract in writing. This shall apply accordingly for the waiver of this written form requirement.
4. Rights exceeding these General Conditions of Sale that Smart Data Security GmBH are entitled to pursuant to legal provisions or other agreements remain unaffected.
5. Offers quoted by Smart Data Security GmBH are with regard to price, amount, delivery deadlines and possibilities of delivery subject to change and nonbinding. From here particularly with write errors and arithmetic mistakes on the website no claims arise to the customer against Smart Data Security GmBH. The contract comes about with the confirmation mail.
Offers, prices, product and shippment
6. Smart Data Security GmBH reserves all rights of ownership, copyrights, and any other property rights to all offer documents. Such documents must not be made available to third parties.
7. Specifications as to illustrations, drawings, weight and dimension, declarations of weight, measurements and consumption as well as any other descriptions of the products contained in the documents pertaining to the offer shall only be approximate unless expressly specified as binding. They constitute neither agreement nor guarantee as to the characteristics or durability of the products.
8. Orders are not binding until they have been confirmed by Smart Data Security GmBH in a written order confirmation or until Smart Data Security GmBH performs the order or in particular when Smart Data Security GmBH fulfills the order with the consignment of the product. Any order confirmation processed by use of automatic appliances and lacking signature and name is considered a written order confirmation. To the extent the order confirmation contains obvious errors, misspellings, or miscalculations, Smart Data Security GmBH shall not be bound to it.
9. Silence of Smart Data Security GmBH as to offers, orders, requests, or other declarations of the customer is deemed consent only if there is a prior written agreement to that effect.
10. The written order confirmation of Smart Data Security GmBH is authoritative for scope of delivery. Changes to the specification or scope of delivery by the customer require the written confirmation of Smart Data Security GmBH to be effective.
11. The prices are considered to the dispatch primarily in the European Union. All prices in Euro contain the legal German value added tax sentence valid at the moment. If a dispatch country is selected beyond the European Union, the value added tax is automatically drawn off and is paid in the dispatch country. With orders by credit card the payment is released with conclusion of the order.
12. Our shipping partner is DHL. When ordering DHL’s services you are agreeing, on your behalf and on behalf of anyone else with an interest in the shipment, to the DHL’s Terms and Conditions as they shall apply from the time that DHL accepts the shipment unless otherwise agreed in writing by an authorised officer of DHL.
13. Price of shippment is calculated individually. Since the shipping costs are different from country to country and weight, we cannot specify a fixed amount. The shipping costs will be calculated for country zone and the weight of the item(s). Price of shippment is subject to constant changes, so please check please check here for your idvididual price.
14. The delivery takes place as long as the supply it reaches. For ability and wrongly of terminated delivery takes over Smart Data Security GmBH no liability.
15. Delivery periods vary according to shippment period. Delivery periods are non-binding unless expressly specified by Smart Data Security GmBH as binding in writing in advance.
16. The delivery period begins when the order confirmation is sent by Smart Data Security GmBH, however not before the customer has produced all documents to be provided by it, all technical issues have been resolved and an agreed down-payment has been received, respectively in case of international orders not before payment has been received in full. In the case of delivery dates, the delivery date will be rescheduled as appropriate if the customer does not produce the documents and approvals to be provided by it in a timely manner, if releases have not been granted in a timely manner, if not all technical issues have been fully resolved in time, or the agreed down-payment have not been issued in time, or in the case of international orders, payment has not been received in full by Smart Data Security GmBH. All delivery dates and periods are subject to the due and timely fulfillment of all further obligations of the customer.
17. The delivery date respectively period is deemed met if the products have left the factory or Smart Data Security GmBH has communicated the shipping readiness or the readiness for collection within the delivery period or by the delivery date. All delivery dates and periods are subject to proper self-supply of Smart Data Security GmBH, unless Smart Data Security GmBH itself is responsible for the reason for improper self-supply. In case of improper self-supply Smart Data Security GmBH is entitled to rescind the contract. Smart Data Security GmBH will inform the customer immediately if Smart Data Security GmBH makes use of its right to rescind and will grant back advance performances, if any, made by the customer.
18. The goods and services required for performance of the contract are subject to reservation that there are no obstacles arising from national or international regulations, in particular export control regulations, embargoes or other restrictions. Delays due to export inspections or approval procedures render delivery dates and times inoperative. If required approvals are not granted, both parties are respectively entitled to withdraw from the contract.
19. In case of delay in delivery, the customer is entitled to rescind the contract after a reasonable grace period, which it had set Smart Data Security GmBH upon commencement of the delay in delivery has expired unsuccessfully.
20. Unless specific agreements are made to the contrary, all prices apply ex works and are exclusive of shipping and packaging costs, insurance, statutory taxes, customs duties, and other levies. The costs incurred in this context, in particular the costs for packaging and transport of the products, will be invoiced separately. Statutory VAT will be shown separately on the invoice at the statutory rate valid on the day of invoicing. The customer bears the cost of the samples made on request and the preparation work herefore, if the contract does not come to conclusion.
21. The risk of accidental loss and accidental deterioration shall pass to the customer as soon as the products have been handed over to the person effecting transport or have left the warehouse of Smart Data Security GmBH for purposes of shipment. In case the customer collects the products, the risk of accidental loss and accidental deterioration shall pass to the customer upon notification of readiness for collection.
22. If the customer falls into default in accepting the products, Smart Data Security GmBH is entitled to demand compensation for the damage incurred including possible additional expenses. The same applies if the customer violates any other obligations to co-operate, unless the customer is not responsible therefore. Where the customer falls into default in accepting the products or violates any other obligations to co-operate, the risk of accidental loss and accidental deterioration of the products shall pass to the customer at the time the customer falls into default of acceptance at the latest. Smart Data Security GmBH is entitled to otherwise dispose of the products after the unsuccessful expiry of a reasonable grace period set by Smart Data Security GmBH and to supply the customer within a reasonably extended period.
23. In case shipping is delayed due to circumstances Smart Data Security GmBH is not responsible for, risk shall pass to the customer upon notification of shipping readiness.
24. The delivered products must be accepted by the customer even if they have minor defects, without this affecting its claims based on defects.
Claims on defects
25. The rights of the customer to assert claims based on defects presuppose that the customer inspects the delivered products upon receipt insofar as this can be reasonably expected also by sample processing or use, and notifies Smart Data Security GmBH of any apparent defects in writing without delay, however no later than two weeks after receipt of the products. Hidden defects must be reported to Smart Data Security GmBH in writing promptly after their discovery. The customer must describe the defects in writing when notifying Smart Data Security GmBH of said defects. Claims based on defects asserted by the customer also require that the planning, construction, assembly, connection, installation, commissioning, operation and maintenance of the products are observed according to the specifications, instructions, guidelines and conditions in the technical instructions, assembly-, installation- and operating instructions, design-assembly-guidelines, and other documents of the individual products, and in particular that maintenance is duly performed and accounted for, and that recommended components are used.
26. In case the products are defective, Smart Data Security GmBH shall at its own choice render subsequent performance either by removing the defect or by delivering a product free of defects. When rendering subsequent performance, Smart Data Security GmBH shall be obligated to bear all expenses required in this respect, in particular transport, shipping, personnel, and material costs, unless such expenses are increased due to the fact that the products were shipped to a place other than the delivery address. Costs for personnel and material asserted by the customer in this context shall be invoiced at cost price. Replaced parts pass into the ownership of Smart Data Security GmBH and shall be returned to it.
27. In case Smart Data Security GmBH is not prepared or able to render subsequent performance, the customer may, without prejudice to any claims for damages or reimbursement of expenses, at its own choice either rescind the contract or reduce the delivery price. The same shall apply in case subsequent performance fails, is unreasonable for the customer, or is unreasonably delayed for reasons attributable to Smart Data Security GmBH.
Right of revocation
28. Consumers (§ 13 German Civil Code) have a legitimate right of revocation. You have the right to cancel this contract within fourteen days without giving any reasons. The withdrawal period is fourteen days from the date, in which you or a third party named by you, which is not the carrier, the final goods have taken possession of, or has.
29. To exercise your right of cancellation, you must inform Smart Data Security GmBH, Lichtenbergerstrasse 8, 85748 Garching Munchen, Germany, e mail: firstname.lastname@example.org, by a clear statement (a letter sent by post, fax or email) of your decision to revoke this contract. In order to observe the revocation period it is sufficient for you to send the message about the right of withdrawal before the withdrawal deadline.
30. If you withdraw from this contract, we give you all the payments that we have received from you, including delivery costs, and must be repaid immediately at the latest within fourteen days from the date on which the notice of your cancellation of this contract has been received by us. For this repayment, we use the same method of payment that you used in the original transaction, unless with you has been expressly agreed otherwise, in no case you will be charged for this repayment charges. We may withhold the reimbursement until we have received the goods back or until you have provided proof that you have returned the goods, depending on whichever is the earlier date.
You have the goods immediately and in any event not later than fourteen days from the date on which you notify us of the cancellation of this contract, returned to us or to pass. The deadline is met if you send back the goods before the deadline of fourteen days. You bear the direct cost of returning the goods.
You only need to pay for any diminished value of the goods, if the deterioration in value is due to a not necessary to ascertain the nature, characteristics and functioning of the goods dealing with them.
31. The right does not apply to distance contracts for the delivery of goods that have been produced according to customer specifications or clearly tailored to personal needs.
32. The customer agrees with Smart Data Security GmBH and recognizes in this connection to bear the cost of returning the goods if the delivered goods correspond to the ordered goods.
33. The guarantee takes place according to the legal regulations. Information about possible longer manufacturer warranties takes you please to the product documentation.
34. The customer’s right to rescind the contract is excluded if the customer is unable to return the performance received and (i) this is not attributable to the fact that return is impossible due to the nature of the performance received, or (ii) Smart Data Security GmBH is responsible for it, or (iii) the defect was not revealed until the product was processed or modified. The right to rescind is also excluded if Smart Data Security GmBH is not responsible for the defect and if the customer must compensate the value instead of returning the performance.
35. The assertion of claims based on defects is excluded if the defect is due to natural wear and tear, particularly in parts subject to wear and tear, improper handling, operation, or storage or improper modifications or repairs of the products by the customer or third parties. The same shall apply for defects attributable to the customer or resulting from a technical cause other than the original defect.
36. Claims of the customer for reimbursement of expenses instead of claims for damages in lieu of performance are excluded unless a reasonable third party would have incurred such expenses.
37. Smart Data Security GmBH does not assume any warranty, in particular any warranty of quality or durability, unless otherwise agreed in writing.
38. The limitation period for claims based on defects asserted by the customer shall amount to one year. If the defective products have been used in accordance with their intended purpose for a structure and have caused its defectiveness or there is a defect in a structure, the limitation period is five years. This limitation period shall also apply for claims in tort based on a defect of the products. The limitation period begins when the products are delivered. The shortened limitation period shall not apply to the unlimited liability of Smart Data Security GmBH for damages resulting from a breach of a guarantee or from harm to life, physical injury, or harm to health, for intent and gross negligence, and for product defects or insofar Smart Data Security GmBH has assumed a procurement risk. Any comment of Smart Data Security GmBH on a claim based on defects asserted by the customer shall not constitute an opening of negotiations on such claim or on the facts giving rise to the claim, provided that Smart Data Security GmBH rejects the claim based on defects to the full extent.
39. Smart Data Security GmBH is fully liable for damages resulting from a breach of guarantee or from harm to life, physical injury, or harm to health to the contractual partner within the framework of legal liability. The same applies for intent and gross negligence or insofar Smart Data Security GmBH has assumed a procurement risk. Smart Data Security GmBH is liable for slight negligence only if material duties are violated, such duties arising out of the nature of the contract and being of essential importance for the attainment of the purpose of the contract. In case of breach of such duties and in case of default and impossibility of performance, liability of Smart Data Security GmBH shall be limited to damages that are typically expected to occur within the context of the contract. Statutory liability for product defects remains unaffected.
40. To the extent that liability of Smart Data Security GmBH is excluded or limited, this shall also apply for the personal liability of the employees, staff members, representatives, and auxiliary persons of Smart Data Security GmBH.
41. The customer will not modify the products; in particular, it will not modify or remove existing warnings about risks due to improper handling of the products. In case of breach of this undertaking, the customer shall internally indemnify Smart Data Security GmBH from and against any and all product liability claims asserted by third parties unless the customer is not responsible for the defect causing liability.
42. In the event Smart Data Security GmBH is caused to call back or send a warning notice due to a defect in the products, the customer shall use its best efforts to support Smart Data Security GmBH and take part in all reasonable measures that Smart Data Security GmBH deems reasonable and appropriate; in particular, the customer will establish the necessary customer information. The customer shall bear the costs for the product recall or warning notice unless it is not responsible for the defect in the products and the loss occurred according to the principles of product liability laws. Further claims of Smart Data Security GmBH shall remain unaffected.
43. The customer will promptly inform Smart Data Security GmBH in writing about any and all risks in connection with the use of the products and any possible defects in the products that become known to it.
44. In case Smart Data Security GmBH is hindered by force majeure from the fulfillment of its contractual duties, in particular from supplying the products, Smart Data Security GmBH shall, for the duration of the hindrance and a reasonable restart period, be released from its duty to perform without being obligated to pay damages to the customer. The same shall apply if the fulfillment of the obligations of Smart Data Security GmBH is unreasonably impeded or temporarily impossible due to unforeseeable circumstances beyond the control of Smart Data Security GmBH, in particular due to strike, measures of public authorities, lack of energy, difficulties in supply on the part of a sub-contractor, or material interruptions of operation. This also applies if such circumstances affect sub-contractors and in case Smart Data Security GmBH is in default. To the extent Smart Data Security GmBH is released from its obligation to supply, Smart Data Security GmBH will grant back preliminary performances of the customer as may have been made.
45. Smart Data Security GmBH shall be entitled to rescind the contract after a reasonable grace period has elapsed if such hindrance continues for more than four months and the performance of the contract is no longer of interest to Smart Data Security GmBH due to such hindrance. Upon the customer’s request, Smart Data Security GmBH will after expiration of such grace period declare whether it will exercise its right of rescission or will deliver the products within a reasonable period.
46. In case of delivery to other legal systems in which the above provisions of retention of title do not have the same retaining effect as in the Federal Republic of Germany, the customer hereby grants Smart Data Security GmBH a corresponding security interest. The customer will take all further measures that are necessary in this respect to grant Smart Data Security GmBH such corresponding security interest. The customer shall assist in all measures necessary or conducive for the effectiveness and enforceability of such security interests.
47. The transfer of rights and obligations of the customer to third parties requires the prior written consent of Smart Data Security GmBH.
48. The legal relationships between the customer and Smart Data Security GmBH shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, under the exclusion of the UN-purchase right.
49. Exclusive venue for any and all disputes arising out of or in connection with the business relationship between the customer and Smart Data Security GmBH shall be the statutory seat of Smart Data Security GmBH. Smart Data Security GmBH shall also be entitled to bring an action at the customer’s statutory seat and at any other permissible venue.
50. Place of performance for all obligations of the customer and Smart Data Security GmBH shall be the statutory seat of Smart Data Security GmBH.
51. Should an individual provision of these General Conditions of Sale be or become ineffective or unenforceable in whole or in part, or should these General Conditions of Sale contain a regulatory gap, the validity of the remaining provisions shall not be affected thereby. Instead of the ineffective or unenforceable provision, the effective or enforceable provision shall be deemed to be agreed which comes as close as possible to the economic purpose of the ineffective or unenforceable provision. In case of a regulatory gap, the provision shall be deemed to be agreed which corresponds to the provision that would have been agreed in terms of the object of these General Conditions of Sale if the parties had considered the matter.
Publisher: Smart Data Security GmBH
85748 Garching Munchen
VAT registration number: DE272462167
Tax number: 143/181/12143
Commercial Register: HRB 186350
Represented by the managing directors
Irena Jakša Zupančič
Smart Data Security GmBH © All rights reserved