General Terms and Conditions

1. general, applicability, scope, deviating and supplementary conditions

1. SmartTECS Cyber Security GmbH (hereinafter referred to as STC) is a company from the IT security sector and supports customers in the secure implementation of their digitalisation projects at various levels. STC provides the aforementioned and other services exclusively in accordance with the following General Terms and Conditions (hereinafter referred to as GTC), unless otherwise agreed with the customer in individual cases.
2. These GTC shall apply exclusively. Conflicting, deviating or supplementary provisions of the customer shall not become part of the contract even if STC does not expressly object to them. The following GTC shall also apply if STC performs the service without reservation in the knowledge of conflicting, deviating or supplementary provisions of the customer. This also applies to GTC that are mentioned in order or other confirmations of the customer. Acceptance of services by STC does not constitute acceptance of such terms and conditions. Conflicting general terms and conditions or (purchasing) conditions of the customer shall only apply if confirmed separately in writing by STC.
3. The following GTC shall also apply to all future contractual relationships with the customer, irrespective of whether explicit reference is made to these GTC when they are concluded.
4. In the event of a change to the GTC, the current version at the time of performance of the service shall apply.
5. Advertising brochures, catalogues or similar from STC are non-binding.
6. These GTC are available here and can also be viewed at STC’s registered office in Chemnitz.

2. offers, conclusion of contract, contract amendments and contract language

1. Offers made by STC are always non-binding if they do not contain a commitment period.
2. The contract between STC and the customer shall only come into effect upon written order confirmation by STC.
3. The provision of information without prior written confirmation of the order does not establish a contractual relationship; such information is generally non-binding.
4. The contract languages are German and English.

3. provision of services

1. The content and scope of the services are set out in the respective offer confirmed in writing by STC or in the respective contract. STC shall perform in accordance with the recognised rules of technology.
2. STC’s services may include services and / or works. In case of doubt, however, STC’s services shall serve to support the customer without STC owing a specific result.
3. The services to be provided to the customer are generally provided by STC alone. However, STC is authorised to have the contractual services provided in whole or in part by other companies. The customer is not authorised to issue instructions to STC and its employees or to companies commissioned by STC.
4. STC provides its services through appropriately qualified employees. However, the customer has no claim to the provision of services by specific employees. STC shall take appropriate account of the customer’s interests when selecting the persons involved in the provision of services.
5. The place of performance is generally the registered office of STC or its other branches.
6. If the Contractor’s services are to be provided at a location other than the aforementioned locations, the Client shall be required to provide the Contractor with an appropriately equipped workplace in separate rooms. The Contractor shall not be liable for any costs or other expenses incurred.
7. The client must notify the contractor of the need for another assignment at least 10 working days before the start of the assignment so that the contractor has sufficient time to organise it.
8. In the event of a change of place of work, the Client is obliged to ensure job security and the personal safety of the Contractor at its own expense.
9. Normal working hours are 8 hours per working day, 40 hours per week.
10. Public holidays at the place of work are non-working days.
11. Insofar as the services under the contract are not to be provided at STC’s registered office, the customer is obliged, after prior timely and joint agreement, to provide STC with a workplace equipped to the required extent in separate rooms free of charge, which fulfils the applicable occupational safety regulations.
12. Unless otherwise agreed with the customer, all work results of STC (documentation, software, etc.) shall be written in German and/or English and made available to the customer on a data carrier or as an electronically transmitted file (e-mail).

4. obligation of the customer to co-operate

1. Within the scope of project orders, the Client is obliged to provide reasonable co-operation in ensuring the smooth provision of services by the employee. In particular, the Client is obliged to provide the Contractor with all information required for the services to be provided in a timely manner.
2. The Client shall provide the Contractor with access to the required documents, systems, commercial premises and properties or systems of third parties (e.g. end customers), insofar as this is required for the services to be provided, without the Contractor incurring any costs for this.
3. The customer is obliged to provide STC with all information and documents relevant for the proper execution of the respective service in good time before the service is performed and to cooperate to the extent necessary in the fulfilment of the purpose of the contract over the entire term of the contract.
4. The customer must ensure that STC is provided with all documents, data, etc. necessary for the provision of services in a complete, up-to-date, correct, timely manner (generally immediately after the written order confirmation, but no later than at STC’s request), in writing, free of charge and free of third-party rights that conflict with the contractually intended use by STC, and in German or English.
5. Insofar as documents are to be revised or made available to the customer by STC under the contract, these documents must be made available by the customer as editable data and also labelled as such.
6. The customer shall nominate an expert contact person to STC who shall be regularly available during the term of the contract to exchange necessary information and make binding decisions for the customer.
7. The customer shall provide STC with access to the required documents, systems, commercial premises and properties or systems of third parties (e.g. end customers), insofar as this is required for the services to be provided, without STC incurring any costs for this.
8. If the services to be provided by STC require its employees to travel, the customer undertakes to cooperate in making travel arrangements (e.g. applying for a visa, letter of invitation to apply for a visa, etc.).
9. The customer must ensure to the extent necessary that the fulfilment of the contract is not delayed or interrupted, insofar as this is within his sphere of influence.
10. If the customer does not fulfil its obligations listed under subsections 1 to 7 or does not fulfil them to the extent required and if this results in delays and/or additional work and/or idle times, STC may – without prejudice to further legal rights – demand an appropriate change to the agreed schedule and additional remuneration from the customer in accordance with the hourly rates stated in the confirmed offer.

5. business trips in connection with the provision of services

1. Travel by STC employees shall be booked by STC to an appropriate and necessary extent, insofar as this is required by the services to be provided and unless otherwise agreed, and shall be invoiced to the customer at cost price according to proof.
2. Unless otherwise agreed with the customer, costs incurred by STC in connection with travel arrangements shall be invoiced to the customer at cost price, as evidenced.
3. Unless otherwise agreed with the customer, the time spent by STC on travel preparations (e.g. for obtaining a visa) shall be charged as working time. The prices (hourly rates) in the confirmed offer are decisive for the remuneration.
4. Travelling and travel times shall be deemed to be working hours of STC employees and shall be invoiced to the customer on the basis of evidence.
5. Unless otherwise agreed with the customer, the following conditions apply to travel by STC employees:
   – Accommodation in a mid-range hotel or guesthouse (maximum €120 per night in Germany, exception: event-related special rates, e.g. during trade fairs)
   – Additional catering expenses (VMA) in accordance with legal requirements
   – Costs for travelling to and from the event (company car, hire car or train)
   – Travel by car is charged at EUR 0.45 per kilometre
   – Rail travel is in 2nd class incl. seat reservation
   – Air travel up to 3 hours flight duration (one way) is booked in economy class, from 3 hours flight duration (one way) in premium economy class
   – For short journeys, as well as travelling to/from airports/train stations, you can choose to use a car, public transport and/or a taxi
   – Travelling time (see hourly rate in the offer)
6. Travelling expenses to other locations incurred in the course of order processing shall be invoiced to the customer in accordance with the items listed in Section 5 above.

6 Prices, additional services, terms of payment and default

1. Unless otherwise agreed with the customer, all prices are quoted net in EURO plus the applicable statutory value added tax.
2. Services shall be invoiced on a time and material basis unless a different method of invoicing has been agreed with the customer. In the case of services on a time and material basis, STC shall invoice the customer for the labour, travel preparation and travel times incurred at the hourly rates agreed in the confirmed offer.
3. Estimated prices for services on a time and material basis that may be stated in the offer are non-binding. The quantities on which an estimate is based are based on a qualitative assessment of the scope of services carried out by STC to the best of its knowledge. If STC realises in the course of providing the service that the quantity estimates will be exceeded, it shall inform the customer of this immediately. STC shall not exceed the quantities on which the estimated price is based until the customer has given its written consent.
4. All services that are not expressly listed in the confirmed offer but are provided by STC on the instruction or with the approval of the customer shall be deemed additional services. Additional services shall be invoiced separately at cost.
5. If the services to be provided by STC also require the services of third parties, e.g. translation and / or printing service providers, these shall be commissioned by STC to the extent necessary, unless otherwise agreed with the customer, and invoiced to the customer at cost plus a 15% administrative surcharge.
6. Surcharges for special working hours only apply if these services are requested directly from STC by the customer due to project requirements:
   – Night work (8.00 p.m. – 6.00 a.m.) 25%
   – Saturday work 25%
   – Sunday work 50%
   – Work on public holidays 100%
7. Payments are due without any deductions within 14 calendar days, calculated from the invoice date.
8. Payments must be made to a bank account in Germany to be specified by STC when the invoice is issued. The customer shall bear the costs of payment in each case.
9. The value date on the STC account is decisive for the timeliness of the payment.
10. If the customer does not make the payment by the due date, he shall be in default without any further reminder.
11. If the customer defaults on payment and fails to pay within the period specified in the reminder, even after a reminder from STC, interest shall be charged on the outstanding payment amount at nine percentage points above the applicable base interest rate in accordance with Sections 288 (2) and 247 BGB.
12. Objections to STC’s invoices may only be raised by the customer in writing within thirty days of receipt of the invoice. Objections which the customer could not recognise earlier through no fault of his own must be asserted in writing in accordance with the statutory provisions. Timely dispatch of the objection shall be decisive for compliance with the deadline. Failure to raise objections in good time shall be deemed approval.

7. credit checks, dunning and collection procedures and factoring

1. STC is entitled to obtain creditworthiness information about the customer from a credit agency (e.g. Creditreform) before the contract is concluded and during the course of the contractual relationship.
2. STC shall be entitled to have the dunning and collection procedure handled by appropriate service providers, whereby the customer shall bear the costs incurred for this.
3. STC is authorised to process receivables from the customer via third parties (e.g. factoring service providers) to secure and increase liquidity.

8. assignment and set-off

1. The customer is not authorised to transfer its rights and obligations under a contract to third parties without the express prior written consent of STC.
2. The customer may only offset claims of STC against undisputed or legally established counterclaims.

9. Contract term and cancellation

1. If the contract has been concluded for an indefinite period, it may be terminated in writing by either contracting party with four weeks’ notice to the end of a calendar month – but not before the expiry of a minimum term, if such a term has been contractually agreed in individual cases. Otherwise, the statutory cancellation rights remain unaffected.
2. The contract may be terminated in writing by either party for good cause without notice. Good cause shall be deemed to exist in particular if
   a) the customer is in arrears with payments due and has not paid even after a reminder issued by STC after the default has occurred;
   b) enforcement measures have been initiated against the customer which may affect the customer’s ability to fulfil its obligations under the contract;
   c) the information obtained by STC about the customer from a credit agency generally recognised in business life (e.g. Creditreform) about the customer’s financial circumstances gives rise to the concern that the customer will not meet the obligations arising from the contract, whereby the customer is at liberty to refute this concern vis-à-vis STC by providing suitable proof of its creditworthiness, by paying in advance or by providing suitable security, or
   d) a contractual partner promises, offers or grants benefits of any kind to an employee or agent of the other contractual partner involved in the preparation, conclusion or execution of the contract or to a third party in the interest of the other contractual partner.

10. defect rights

1. Insofar as the services are work services, the following shall apply:
   a) The commissioned services shall be accepted by the customer in a written acceptance report after completion of the work in accordance with Section 640 BGB. Any defects shall be noted in the acceptance report, whereby the customer shall only be entitled to rights in respect of defects if it expressly reserves its rights in respect of the defect at the time of acceptance, unless the defects were hidden and were not readily apparent. If, after examination of the defect reported by the customer, it turns out that such a defect did not actually exist, the customer is obliged to bear the additional costs incurred in this respect.
   b) STC’s performance shall be deemed accepted 10 working days after notification of completion of the work to the customer, but at the latest upon payment of the final invoice.
   c) In the event of a defect, the customer shall grant STC a reasonable period of time for subsequent performance depending on the circumstances of the individual case. STC may then, at its discretion, remedy the defect or produce a new work.
   d) If the subsequent performance fails, the customer is entitled to withdraw from the contract in accordance with Sections 636, 323 and 326 (5) BGB or to reduce the remuneration in accordance with Section 638 BGB. STC shall also be liable in accordance with Section XI. for culpably caused damage and on the basis of mandatory statutory liability provisions (e.g. the Product Liability Act). The customer shall have no further rights in respect of defects unless STC has fraudulently concealed the defect or has assumed a guarantee or a procurement risk in this respect. The customer’s right to extraordinary termination of the contract for good cause remains unaffected.
   e) The customer’s claims for defects shall become time-barred one year after the statutory commencement of the limitation period. This does not apply to STC’s liability for damages resulting from injury to life, body or health which are based on a negligent breach of duty by STC or an intentional or negligent breach of duty by a legal representative or vicarious agent of STC and for damages which are based on a grossly negligent breach of duty by STC or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of STC.
2. The provision of § 377 HGB remains unaffected in any case.

11. liability

1. The contractor accepts no liability for errors in the documents provided by the client.
2. The liability of STC and its employees as well as its vicarious agents for culpably caused damage is excluded, unless the damage is based on intent or gross negligence.
3. Section 1 shall not apply in the case of
   a) damages resulting from injury to life, limb or health and
   b) the culpable breach of essential contractual obligations, i.e. such obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely (so-called “cardinal obligations”).
4. In the event of a breach of material contractual obligations which are not based on intent or gross negligence, the liability of STC and its employees and vicarious agents for property damage and financial loss shall be limited to the damage which was foreseeable as a possible consequence of the breach of contract at the time the contract was concluded or which should have been foreseeable taking into account the circumstances which STC knew or should have known. The liability of STC and its employees as well as its vicarious agents and assistants is limited by the order value of the contract. The liability of STC and its employees and vicarious agents for loss of data shall be limited to the typical recovery costs that would have been incurred even with regular and risk-appropriate data backups.
5. The customer must notify STC immediately of any damage, failing which any further damage resulting from the delayed notification shall be borne by the customer.
6. Unless otherwise agreed with the customer, STC assumes no guarantee and no procurement risk.
7. Mandatory statutory liability regulations (e.g. the Product Liability Act) remain unaffected.
8. STC shall not be liable for damage caused by incorrect instructions from the customer, a defective component provided by the customer or incorrect documentation provided by the customer.
9. Also excluded from liability are damages caused by faulty actions of the customer or third parties.

12. dates, deadlines and force majeure

1. Dates and deadlines are only binding for STC if they have been expressly agreed as binding in writing.
2. If non-compliance with a specific performance time is due to events for which STC is not responsible (including strike or lockout), the performance dates shall be postponed by the duration of the disruption, including a reasonable start-up phase.
3. Impediments to performance and acceptance, in particular as a result of general mobilization, industrial action, riots, fire, war, natural disasters, pandemics, terrorism and its effects, confiscation, embargo, restrictions on energy consumption as well as defective or delayed deliveries by subcontractors due to the circumstances listed in this clause and other cases of force majeure as well as due to sovereign orders or other circumstances which are beyond the control of the contracting parties or which cannot be averted or compensated for even with reasonable technical and economic effort, shall release the contracting parties from their contractual obligations for the duration and scope of the event. which cannot be averted or compensated for even with reasonable technical and economic effort, shall release the contracting parties from the fulfillment of their contractual obligations for the duration and to the extent of the event. The contracting party prevented from fulfilling its obligations is obliged to notify the other contracting party immediately of the occurrence and end of the aforementioned circumstances.

13. contract adjustment

1. If the technical, economic or legal conditions under which the contract was agreed undergo a fundamental change and if, as a result, one party can no longer reasonably be expected to maintain the contractual conditions because the intentions of the parties, which are aimed at a fair balance of the mutual economic interests in the sense of maintaining the equivalence relationship, are no longer fulfilled, this party may claim that the contract be adapted to the changed circumstances.
2. The parties shall endeavor to reach an agreement on the written request for adjustment made by one party within three months. If no agreement is reached, the party requesting the adjustment shall have the right to terminate the contract in writing within four weeks of the failure of the attempt to reach an agreement, giving four weeks’ notice to the end of the next calendar month. The legal consequences of such termination shall be governed by the statutory provisions.

14. compliance with legal regulations and data protection

1. The contracting parties undertake to comply with all applicable laws, regulations, directives and other legal provisions (in particular anti-corruption laws) when providing their services in accordance with the contract existing between them.
2. The contracting parties undertake to process and use the data required for invoicing or other processing of the contract in accordance with the applicable data protection regulations.
3. The work results and / or partial results made available to the customer in any form are subject to the copyright of STC. Work results and / or partial results may not be passed on by the customer to third parties or made available to third parties in any other form. Furthermore, the statutory provisions for the protection of copyright (in particular the license conditions) shall apply. In the event of infringements, the customer shall be liable for any damages incurred.
4. STC collects data for the purpose of performing the contract, fulfilling its contractual and pre-contractual obligations and for direct advertising. The collection and processing of data is necessary for the performance of the contract and is based on Article 6(1)(b) GDPR. The data will not be passed on to third parties. The data will be deleted as soon as it is no longer required for the purpose of its processing. The customer has the right to object to the use of their data for the purpose of direct advertising at any time. In addition, the customer is entitled to request information from STC about their stored data and, if the data is incorrect, to request that it be corrected or, in the case of unauthorized data storage, that it be deleted. In the event of violations, the customer has the right to lodge a complaint with the supervisory authority.

15. secrecy and confidentiality, references

1. The contracting parties shall treat all information of the other contracting party that becomes accessible in connection with the contract (including pre-contractual information) – by whatever means and in whatever form – that is designated as confidential or is recognizable as business or trade secrets due to other circumstances, with the confidentiality customary in business life. The contracting parties undertake to obligate their employees and other third parties who are or will be involved with the aforementioned information to maintain confidentiality in an appropriate manner.
2. Furthermore, the contracting parties shall treat the content of the concluded contract as confidential.
3. The disclosure of information in accordance with the above clauses 1 and 2 to companies affiliated with the contracting parties is permitted, provided that they are also obliged to treat the information or the content of the contract confidentially. Clauses 1 and 2 shall not apply to information that is passed on to consultants who are obliged to maintain professional secrecy. Clauses 1 and 2 shall also not apply if and insofar as the information is generally known, must be disclosed by law or official order, was lawfully acquired by a third party and passed on to the receiving contractual partner or was already known to the receiving contractual partner beforehand.
4. The publication of the general cooperation (e.g. through press releases) between the contracting parties and the naming of references in company presentations and personnel profiles shall be exempt from confidentiality, insofar as the naming relates to the company name, project name and general content without details worthy of protection. The respective contractual partner may only object to the naming of references in individual cases if, in exceptional cases, there are important business reasons to the contrary.

16. adaptation of the GTC

1. These GTC are based on the legal and other framework conditions at the time the contract is concluded. Should these framework conditions change, STC shall be entitled to demand an adjustment of these GTC to the changed framework conditions, provided that this does not significantly change the relationship between performance and consideration agreed by the contracting parties.
2. An amendment to the GTC in accordance with Section 1 above shall only become effective if STC notifies the customer of the amendment at least eight weeks before the planned effective date, at least in text form and with express reference to the amendments. If the customer does not agree with the notified adjustment, he has the right to object to the request for adjustment within a period of four weeks from receipt of the notification, at least in text form. If the customer does not exercise this right, the adjustment shall be deemed to have been agreed. STC shall explicitly inform the customer of this approval effect of his silence in the notification.
3. If STC cannot reasonably be expected to continue the contract as a result of the customer’s objection, it shall be entitled to terminate the contract with a notice period of three weeks to the end of the day preceding the day on which the amended GTC are scheduled to take effect.

17. non-solicitation

1. For the duration of the contractual cooperation and for a period of two years after termination of the contractual cooperation between STC and the customer company, the customer company is expressly prohibited from directly or indirectly (e.g. through third parties) enticing away employees of STC who are or were involved in product development for the customer company or in the other contractual performance of services within the scope of the project cooperation.
2. STC and the customer company recognize the special position of trust in the deployment of STC employees, which results from the joint project and other cooperation. STC’s special need for protection and the position of trust between the companies is based in particular on the especially close, sometimes individual project-related cooperation between STC employees and the customer company, which can last for months. The prevailing shortage of skilled workers also plays a decisive role here, whereby the customer company – which operates in a market segment in which STC employees could easily be deployed very well – has direct, permanent contact and access to STC employees due to the close project cooperation described above. This enables the client company to test the STC employees in their day-to-day work, so to speak, and would therefore run a lower contractual risk when hiring them.
3. In the event of poaching, the customer company undertakes to pay a contractual penalty to STC in the amount of two gross annual salaries (including any bonuses, management bonuses, etc.) relating to the respective employee. The contractual penalty is due and payable within 30 days of the poached employee leaving STC.
4. The contractual penalty serves in particular to compensate for the damage incurred by STC – in particular the loss of manpower and know-how due to the loss of employees.
   V. This non-solicitation clause is merely an ancillary agreement to the project/contract.

18. final provisions

1. There are no verbal collateral agreements or agreements to these GTC.
2. Amendments or additions to the contract must be made in writing to be legally effective. The same applies to any waiver of the written form requirement.
3. German law shall also apply exclusively to customers domiciled abroad. The laws on international sales, in particular the UN Convention on Contracts for the International Sale of Goods, shall not apply.
4. The place of jurisdiction for merchants within the meaning of the German Commercial Code, legal entities under public law and special funds under public law is the registered office of STC in Chemnitz. The same shall apply if the customer has no general place of jurisdiction in Germany. However, STC is entitled to sue the customer at his place of business.
5. Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace the invalid or unenforceable provision with a valid provision that comes as close as possible to the economic and technical purpose of the invalid or unenforceable provision. The same shall apply in the event of the existence or occurrence of a loophole that needs to be filled.