General Terms and Conditions (GTC) for entrepreneurs
§ 1 Scope
These General Terms and Conditions apply to all contracts for the provision of services between Smart IT Innovation GmbH, represented by the management Jennifer Behrens, (hereinafter: “Smart IT”), and its customers. These terms and conditions apply exclusively to entrepreneurs.
These General Terms and Conditions apply to all contracts concluded between the parties, even if these do not expressly refer to the General Terms and Conditions.
Upon placing the order, these General Terms and Conditions are deemed to have been accepted. Deviations from these regulations must be agreed in writing. Differing general terms and conditions of the customer do not apply, even if Smart IT does not expressly contradict them. Individual special agreements take precedence over these General Terms and Conditions; this does not apply to the customer’s pre-formulated contractual conditions.
The term “order” includes the contractual relationship regardless of the corresponding contract type. Smart IT owes the main service to the customer. The customer owes Smart IT the payment of the remuneration.
Smart IT reserves the right to change these terms and conditions at any time. When concluding new contracts or placing new orders, the version valid at the time the contract is concluded is decisive.
§ 2 Conclusion of contract/Right of withdrawal from Smart IT in the event of non-delivery
The presentation of the products in the online shop does not constitute a legally binding offer, but rather only an invitation to place an order. By placing the order via the online shop or by means of a written or electronic order, the customer makes a binding offer to conclude a purchase contract. This offer can be accepted by Smart IT within 6 weeks and cannot be withdrawn by the customer during this time. The customer is only entitled to make an offer if the customer is an entrepreneur. By submitting an offer, the customer guarantees his entrepreneurial status.
The information on the Smart IT website therefore does not represent any guarantees or quality agreements.
The contract between the parties is concluded upon acceptance of this offer by sending an order confirmation from Smart IT. Contracts are only concluded with entrepreneurs.
If an ordered item is not available because Smart IT is not supplied by its supplier through no fault of its own, despite its contractual obligation, 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 will immediately reimburse any services already provided. In this case, the customer also has the option of receiving a comparable device. The performance of the server at the time of the order is taken as the basis for comparability.
§ 3 Delivery and delay in delivery
The delivery times stated in the online shop and in the order confirmation are non-binding unless they are marked as binding. The rental items are only ordered from sub-suppliers or manufacturers after the order has been placed and before the order has been accepted. Due to the current market situation, there may be delays or changes in delivery times from Smart IT suppliers. In this respect, the customer will only be given a specific delivery time at a later date.
The delivery/service deadline is met if the operational readiness has been communicated by its expiry or the subject of the service has been provided by Smart IT.
The delivery/service deadline is extended or a delivery/service date is postponed in the event of unforeseen obstacles or force majeure that are beyond the control of Smart IT, e.g. B. Operational disruptions – especially in the event of company closures or due to official orders – insofar as such obstacles can be proven to have a significant influence on the delivery of the delivery/service item. This also applies if the circumstances arise with subcontractors. The delivery/performance period is extended depending on the duration of such measures and obstacles. In important cases, such obstacles will be communicated to the customer as quickly as possible. If such disruptions result in a delay in performance of more than four months, the customer can withdraw from the contract.
Smart IT cannot be held liable for delays in delivery/service due to one or more breaches of duty to cooperate with the customer.
Partial deliveries/services are permitted within the delivery/service deadlines specified by Smart IT, provided that this does not result in any disadvantages for the use/usage.
The customer can request the seller to deliver six weeks after a non-binding delivery date or a non-binding delivery period has been exceeded. The seller is in default upon receipt of the request.
If the customer is entitled to compensation for damage caused by the delay, this is limited to a maximum of 5% of the agreed rental price in the event of slight negligence on the part of Smart IT. If the customer also wants to withdraw from the contract, he must give the seller a reasonable deadline for delivery after the relevant deadline has expired.
Claims for damages instead of performance in the event of slight negligence are excluded.
The limitations and exclusions of liability in this section do not apply to damages that are based on a grossly negligent or intentional breach of obligations by the seller, his legal representative or his vicarious agent or in the event of injury to life, body or health.
The manufacturer reserves the right to make design or shape changes as well as changes to the scope of delivery during the delivery period, provided that the changes or deviations are reasonable for the buyer, taking into account the seller’s interests. If the seller or the manufacturer uses symbols or numbers to designate the order or the purchased item, no rights can be derived from this alone.
§ 4 Payment conditions
Unless otherwise agreed, the remuneration to be paid for the services will be invoiced in advance. Other costs not included in the offer (performance-related price changes of the server, such as for pre-orders such as the Antminer L7) must be borne by the customer himself.
The customer is automatically in default without the need for a further reminder if the invoice is not settled within 7 days of the due date.
For legal transactions in which consumers are not involved, default interest is charged at 9 percentage points above the base interest rate. The default interest is to be set higher if Smart IT proves that a higher interest rate has been charged. Smart IT’s claim under Section 288 Paragraph 5 of the German Civil Code (BGB) remains unaffected.
Smart IT is free to charge the customer a net expense allowance of 5.00 euros for each reminder issued. This applies to the first reminder and to any further reminders in the same matter, regardless of whether the contractual partner is in default.
The withholding of payments due to any counterclaims of the customer not recognized by Smart IT or determined by the court is not permitted, nor is offsetting against such claims.
§ 5 Acceptance and acceptance of the service
The customer is obliged to accept the service within 4 weeks of receipt. After this period has expired, acceptance is deemed to have taken place unless it is expressly refused. If there are serious deviations, Smart IT will eliminate them within a reasonable time and submit the delivery/service item for further acceptance. Sentence 1 and Sentence 2 also apply to any agreed interim acceptances. In any case, acceptance is deemed to have taken place when the customer uses or pays for the service item.
After acceptance of the service by the customer, all warranty claims for defects that the customer knew or should have recognized upon acceptance or were negligently not aware of are excluded, unless the customer reserves the right to remedy the defect determined by him. If interim acceptance has been carried out, the customer is also obliged to reimburse any additional costs incurred by Smart IT insofar as changes have to be made that are based on errors that should have been recognized by the customer during the interim acceptance.
The customer is obliged to accept the item of service within 7 days unless he is temporarily prevented from accepting it through no fault of his own. The transfer of risk takes place in accordance with the statutory provisions.
If the customer intentionally or grossly negligently falls behind in accepting the subject of the service for more than 7 days from receipt of the notification of availability, Smart IT is entitled, after setting a grace period of 14 days, to withdraw from the contract and demand compensation. There is no need to set a grace period if the customer seriously or definitively refuses acceptance or is obviously unable to pay the remuneration within this time.
§ 6 Warranty for the sale of hardware and software
Smart IT guarantees that the contractual service is free of defects. The freedom from defects is determined by the applicable service description. Smart IT and the customer agree that explanations and descriptions of the hardware and software contained in the service descriptions and/or in the price list do not represent any guarantees or assurances of certain properties. This applies in particular to the specification of rendering times to be achieved.
The warranty period is one year and begins on the day of delivery. The customer must immediately report any defects that occur during the warranty period to Smart IT in writing. Defects in the software must be reported in a reproducible and understandable manner.
Smart IT provides supplementary performance in the event of material defects at its own discretion through repair or replacement delivery. To the extent that the type of supplementary performance chosen by Smart IT is unreasonable for the customer, the customer has the right to reject the chosen type. Smart IT is entitled to three attempts for the same defect. The provision of a workaround solution also counts as supplementary performance.
In the event that subsequent performance is not possible or unreasonable for Smart IT, the customer has the right to reverse the contract after reimbursement of the benefits incurred. However, the guarantee that the subject matter of the contract is free from third-party rights only applies to Germany.
If the customer has made a claim against Smart IT due to warranty and it turns out that either there is no defect or the claimed defect does not oblige Smart IT to provide warranty, the customer must reimburse Smart IT for the expenses incurred, as far as they could have recognized that the defect was not caused by Smart IT.
The warranty is void in particular if the customer changes the contractual service himself or has it changed by third parties without the consent of Smart IT, unless the customer proves that the defects in question were not caused in whole or in part by such changes.
If the customer is entitled to compensation for damage caused by the delay or compensation in addition to the service, this is limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on the part of Smart IT. If the customer also wants to withdraw from the contract, he must give the seller a reasonable deadline to make improvements after the relevant deadline has expired.
Claims for damages instead of performance in the event of slight negligence are excluded.
The limitations and exclusions of liability in this section do not apply to damages that are based on a grossly negligent or intentional breach of obligations by the seller, his legal representative or his vicarious agent or in the event of injury to life, body or health.
§ 7 Warranty, liability
The customer can assert warranty claims for defects within a period of 1 year after acceptance of the service item.
Due to further claims and rights, Smart IT is only liable in cases of intent and gross negligence in accordance with statutory provisions.
Claims for damages arising from torts are excluded unless the damage was caused intentionally or through gross negligence.
In the case of slight negligence, Smart IT is only liable if an essential contractual obligation is breached or if there is a delay or impossibility.
Liability for slight negligence, torts and reimbursement of wasted expenses only exists for damage that is foreseeable and typical, but limited to a maximum of 30% of the remuneration for the service causing the damage.
The previous provisions No. 2-5 also apply to the actions of Smart IT’s vicarious agents and vicarious agents.
Smart IT’s liability for indirect and consequential damages, such as lost profits, downtimes, financial losses, data loss or data damage, is excluded.
Liability claims become statute-barred after one year from the start of the statutory limitation period.
In cases of fraudulent intent, injury to life, body or health, for legal defects and in cases of liability under the guarantee or the product liability law, the limitations of liability, the limitation of limitations and the shortened warranty do not apply.
§ 8 Disclaimer of liability
Unless expressly agreed, Smart IT is not obliged to check the legal admissibility of agreed services. If Smart IT is commissioned to carry out such an inspection, the customer must bear the resulting fees and costs of Smart IT and third parties, unless otherwise agreed.
The specified possible rendering times that can be enabled via the servers in question are not guarantees. Smart IT assumes no liability for this information.
§ 9 Data protection
The parties collect each other’s personal data for the purpose of executing the contract and to fulfill their contractual and pre-contractual obligations. The data collection and data processing is necessary for the implementation of the contract and is based on Article 6 Paragraph 1 b) GDPR. The parties may also use each other’s data for self-promotion. This is done on the basis of Article 6 Paragraph 1 f) GDPR. In principle, the data will not be passed on to third parties unless there is a legal deadline or is necessary for the execution of the contract. The data will be deleted as soon as it is no longer required for the purpose of its processing and unless there is a legal obligation to retain it. Free information about all of the data subject’s personal data is possible. In addition, the data subject has the right to data transfer, deletion, correction, restriction or blocking of personal data. The person concerned can address relevant questions and requests directly to the relevant contractual partner. 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 processes of the relevant contractual partner violate data protection regulations.
To the extent that Smart IT processes personal data on behalf of the customer, the parties undertake to separately agree on an order processing contract in accordance with Article 26 of the GDPR.
§ 10 Changes to the General Terms and Conditions
Smart IT reserves the right to change these terms and conditions at any time. When concluding new contracts, the version valid at the time the contract is concluded is decisive.
For existing customers, a change to the agreed terms and conditions is possible under the following restrictions: Circumstances that justify such a change are subsequent, unforeseeable changes that Smart IT does not initiate and over which it has no influence and which have a unilateral effect to the detriment of one party , as well as gaps in the general terms and conditions that lead to difficulties in executing the contract. Smart IT will send the customer the amended General Terms and Conditions six weeks before they come into force, specifying the circumstances that gave rise to the change and the scope of the changes. If the customer does not object to the change in writing or by fax before it comes into force, but rather declares his consent to the new General Terms and Conditions by continuing to use Smart IT’s services, the change is deemed to have been accepted; The General Terms and Conditions in their then amended version also apply to existing contracts from the announced date. In the event of a timely, formal objection, the previous General Terms and Conditions continue to apply between the parties; In this case, both the customer and Smart IT are entitled to terminate the contract with due notice.
§ 11 Final provisions
For all disputes arising from the contractual relationship, if the customer is a registered merchant, a legal entity under public law or a special fund under public law, the lawsuit must be filed with the court that is responsible for the headquarters of Smart IT. Smart IT is also entitled to sue at the customer’s headquarters.
German law applies exclusively, excluding the laws governing the international purchase of movable property, even if the customer has his registered office abroad.
Transfers of the customer’s rights and obligations from the contract concluded with Smart IT require written consent to be effective.
Should individual provisions of this contract prove to be invalid or unenforceable in whole or in part, or become ineffective or unenforceable as a result of changes in legislation after the contract has been concluded, the remaining contractual provisions and the effectiveness of the contract as a whole remain unaffected.
Version 1.01
Stand: 07.02.2024