General Terms and Conditions

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

1. SmartTECS Engineers GmbH (hereinafter referred to as STE) is a company specialising in Electric & Control Systems, Mechanical Design and Engineering Services, which operates in the Rail & Industrial sector. SmartTECS Engineers specialises in the design, development, integration and testing of vehicles and their subsystems (electrical, control, mechanical) and provides these and other services exclusively in accordance with the following General Terms and Conditions (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 STE does not expressly object to them. The following GTC shall also apply if STE performs the service without reservation in the knowledge of conflicting, deviating or supplementary provisions of the customer. This shall also apply to general terms and conditions stated in order or other confirmations of the customer. Acceptance of services by STE shall 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 STE.
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 shall apply.
5. STE’s advertising brochures and catalogues shall not be binding.
6. These GTC can be accessed here and can also be inspected at STE’s registered office in Chemnitz.

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

1. Offers made by STE shall always be subject to change unless they contain a binding period.
2. The contract between STE and the customer shall only come into effect upon written confirmation of the order by STE.
3. The provision of information without prior written confirmation of the order shall not establish a contractual relationship; such information shall not be 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 STE’s offer confirmed in writing or in the respective contract. STE shall perform in accordance with the recognised rules of technology.
2. STE’s services may include services and/or works. In case of doubt, however, STE’s services shall serve to support the customer without STE owing a specific result.
3. The services to be provided to the customer shall generally be provided by STE alone. However, STE shall be entitled to have the contractual services provided in whole or in part by other companies. The customer shall not be authorised to issue instructions to STE and its employees or to companies commissioned by STE.
4. STE shall provide its services through appropriately qualified employees. However, the customer shall have no claim to the provision of services by specific employees. STE shall give due consideration to the interests of the customer when selecting the persons involved in the provision of services.
5. As a rule, the place of performance shall be the registered office of STE or its other branches.
6. If the services to be provided by the Contractor are to be provided at a location other than the aforementioned locations, the Client shall be obliged 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 need for a different assignment must be announced by the client 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 work location, the Client shall be obliged to ensure workplace safety and the personal safety of the Contractor at its own expense.
9. The usual working hours are 8 hours per working day, 40 hours per week. Public holidays at the place of work are non-working days.
10. Insofar as the services under the contract are not to be provided at STE’s registered office, the customer shall be obliged, after prior timely and joint agreement, to provide STE with a workplace equipped to the required extent in separate rooms free of charge, which fulfils the applicable occupational safety regulations.
11. Unless otherwise agreed with the customer, all written work results of STE (documentation, software, circuit diagrams, 2D/3D data, 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. obligations of the client to co-operate

1. Within the scope of project orders, the client is obliged, within reasonable limits, to co-operate appropriately 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 customer shall provide the contractor with access to the required documents, facilities, commercial premises and properties or facilities 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 shall be obliged to provide STE with all information and documents relevant for the proper performance of the respective service in good time prior to the performance of the service and to cooperate in the fulfilment of the purpose of the contract over the entire term of the contract to the extent necessary.
4. The customer shall ensure that STE is provided with all documents, data, etc. required for the provision of services in a complete, up-to-date, correct, timely manner (usually immediately after the written order confirmation, but at the latest at STE’s request), in writing, free of charge and free of third-party rights that conflict with the contractually intended use by STE, and in German or English.
5. Insofar as documents are to be revised by STE or made available to the customer in accordance with 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 STE 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 STE with access to the necessary 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 STE incurring any costs for this.
8. If the services to be provided by STE require its employees to travel, the customer undertakes to cooperate in the preparation of the journey (e.g. application for a visa, letter of invitation to apply for a visa, etc.).
9. The customer shall ensure to the extent necessary that the performance of the contract is not delayed or interrupted, insofar as this is within his sphere of influence.
10. If the customer does not fulfil his obligations listed under points 1 to 7 or does not fulfil them to the extent necessary and if delays and/or additional work and/or idle times arise as a result, STE 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 STE employees shall be booked by STE to an appropriate and necessary extent, insofar as the services to be provided require it and unless otherwise agreed, and invoiced to the customer at cost price, according to proof.
2. Unless otherwise agreed with the customer, costs incurred by STE in connection with the travel arrangements shall be invoiced to the customer at cost price, according to proof.
3. The time spent by STE on travel preparations (e.g. for obtaining a visa) shall be charged as working time, unless otherwise agreed with the customer. The prices (hourly rates) in the confirmed offer shall be decisive for the remuneration.
4. Travelling time shall be deemed to be working time for STE 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 STE employees: Accommodation in a mid-range hotel or guesthouse (maximum €120 per overnight stay in Germany, exception: event-related special prices, e.g. during trade fairs); additional meal expenses (VMA) in accordance with statutory requirements; costs for travel 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) is booked in economy class. 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 distances, as well as arrival/departure from airports/train stations, a car, public transport and/or taxi can be used
   Travel time (see hourly rate in the offer)
6. Travel costs to other locations incurred in the course of order processing will be charged 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, STE 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 stated in the offer for services on a time and material basis are non-binding. The quantities on which an estimate is based shall be based on a qualitative assessment of the scope of services carried out by STE to the best of its knowledge. If STE realises in the course of providing the service that the quantity estimates are exceeded, it shall inform the customer of this immediately. STE shall not exceed the quantities on which the estimated price is based until the customer has given its written consent.
4. All services which are not expressly listed in the confirmed offer, but which are provided by STE at the instruction or with the approval of the customer, shall be deemed additional services. Additional services shall be invoiced separately on a time and material basis.
5. If the services to be provided by STE also require the services of third parties, e.g. translation and / or printing service providers, these shall be commissioned by STE to the extent necessary, unless otherwise agreed with the customer, and invoiced to the customer at cost price according to proof plus a 15% administrative cost surcharge.
6. Price surcharges for special working hours shall only apply if these services are requested directly from STE by the customer due to project requirements: Night work (20:00 – 06:00): 25 %; Saturday work: 25 %; Sunday work: 50 %; work on public holidays: 100 %
7. Payments shall be due without any deductions within 14 calendar days, calculated from the invoice date.
8. Payments shall be made to a bank account in Germany to be specified by STE when the invoice is issued. The customer shall bear the costs of payment in each case.
9. The value date on STE’s account shall be decisive for the timeliness of payment.
10. If the customer fails to make payment by the due date, he shall be in default without further reminder.
11. If the customer is in default of payment and fails to pay within the period specified in the reminder, even after a reminder from STE, 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 STE’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 shall 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. creditworthiness checks, dunning and collection procedures and factoring

1. STE shall be entitled to obtain creditworthiness information about the customer from a credit agency (e.g. Creditreform) before conclusion of the contract and in the course of the contractual relationship.
2. STE shall be entitled vis-à-vis the customer to have the dunning and collection procedure handled by appropriate service providers, whereby the customer shall bear the costs incurred for this.
3. STE shall be authorised to process claims against the customer via third parties (e.g. factoring service providers) in order to secure and increase liquidity.

8. assignment and offsetting

1. The customer shall not be authorised to assign his rights and obligations arising from a contract to third parties without the express prior written consent of STE.
2. The customer may only offset claims of STE against undisputed or legally established counterclaims.

9. contract term and termination

1. If the contract is 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, insofar as 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 contracting party for good cause without notice. Good cause shall be deemed to exist in particular if the customer is in arrears with payments due and has not made payment even in response to a reminder issued by STE after default has occurred; enforcement measures have been initiated against the customer which may have an impact on the customer’s ability to fulfil his obligations under the contract; information obtained by STE about the customer from a credit agency generally recognised in business life (e.g. Creditreform) about the customer’s financial circumstances gives rise to concerns that the customer will not fulfil his obligations under the contract, whereby the customer shall be entitled to terminate the contract without notice. Creditreform) concerning the customer’s financial circumstances gives rise to the concern that the customer will not fulfil the obligations arising from the contract, whereby the customer shall be at liberty to refute this concern vis-à-vis STE by providing suitable proof of his creditworthiness, by paying in advance or by providing suitable security, or a contractual partner promises, offers or grants advantages 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: The commissioned services shall be accepted by the customer in a written acceptance report after completion of the work in accordance with § 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 not readily recognisable. If, after examination of the defect notified by the customer, it turns out that such a defect did not actually exist, the customer shall be obliged to bear the additional costs incurred in this respect.
   STE’s performance shall be deemed to have been accepted 10 working days after notification of completion of the work to the customer, but at the latest upon payment of the final invoice.
   In the event of a defect, the customer shall grant STE a reasonable period for subsequent fulfilment depending on the circumstances of the individual case. STE may then, at its discretion, remedy the defect or produce a new work.
   If the subsequent fulfilment fails, the customer shall be 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. STE 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 STE has fraudulently concealed the defect or has assumed a guarantee or a procurement risk in this respect. The customer’s right to extraordinary cancellation of the contract for good cause shall remain unaffected.
   The customer’s claims for defects shall become time-barred one year after the statutory commencement of the limitation period. This shall not apply to STE’s liability for damage resulting from injury to life, limb or health caused by a negligent breach of duty by STE or an intentional or negligent breach of duty by a legal representative or vicarious agent of STE and for damage caused by a grossly negligent breach of duty by STE or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of STE.
2. If the content of the contract concluded between STE and the customer relates to the development of a rail vehicle, STE shall provide the service in particular on the basis of the V-model (e.g. in accordance with DIN EN 50126, 50128, 50129 etc.). In the V-model, there are two lines that converge to a point at the end. On the left-hand side of the V, the customer’s requirements are described, which become increasingly finer or more specific from the top to the bottom of the V. On the right-hand side of the V, a test run runs parallel to each of the development steps on the left-hand side, which is necessary for testing or validating the respective development stage. This includes a system test, integration test and / or a component test. At the top of the V, the meeting point of the two lines, the system is finally implemented.
   Due to the separation of the individual development stages contained in the V-model and the test processes required for each development stage, the customer is responsible for checking the work results of the STE in the respective development phases. Defects reported by the customer immediately after the respective test run of the development stage shall be rectified by STE, unless the reported defect is based on a previous development stage for which a test has already been or should have been carried out by the customer.
3. Due to the separation of the individual development phases contained in the V-model and the test procedures required for each development phase, the customer shall be responsible for testing the work results of STE in the respective development phases. Defects reported by the customer immediately after the respective test run of the development stage shall be rectified by STE, unless the reported defect is based on a previous development stage for which a test has already been or should have been carried out by the customer. STE shall be under no obligation to rectify a defect which originates from a development stage already tested by the customer or from a development stage for which a test should already have been carried out by the customer.
4. The provision of § 377 HGB (German Commercial Code) shall remain 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 STE and its employees as well as its vicarious agents for culpably caused damage shall be excluded, unless the damage is based on intent or gross negligence.
3. Clause 1. shall not apply in the event of damage resulting from injury to life, limb or health and the culpable breach of essential contractual obligations, i.e. those obligations whose fulfilment 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 STE 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 when the contract was concluded or which should have been foreseeable taking into account the circumstances which STE knew or should have known. The liability of STE and its employees and vicarious agents shall be limited by the order value of the contract. The liability of STE and its employees and vicarious agents for loss of data shall be limited to the typical recovery costs that would have been incurred even if data had been backed up regularly and in accordance with the risks involved.
5. The customer shall notify STE immediately of any damage, otherwise any further damage resulting from the delayed notification shall be borne by the customer.
6. Unless otherwise agreed with the customer, STE shall not assume any guarantee or procurement risk.
7. Mandatory statutory liability regulations (e.g. the Product Liability Act) shall remain unaffected.
8. STE shall not be liable for damage caused by faulty instructions from the customer, a defective component provided by the customer or faulty documents 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 shall only be binding for STE 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 STE 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 mobilisation, 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 fulfilment of their contractual obligations for the duration and to the extent of the event. The contracting party prevented from fulfilment is obliged to notify the other contracting party immediately of the occurrence and end of the aforementioned circumstances.

13. contract amendments

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 be reasonably 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 demand that the contract be adapted to the changed circumstances.
2. The parties shall endeavour to reach an agreement on the written request for adjustment made by one of the parties 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 a cancellation 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 under the contract between them.
2. The contracting parties undertake to process and utilise the data required for invoicing or other processing of the contract in accordance with the applicable data protection regulations.
   The work results and / or partial results made available to the customer in any form are subject to the copyright of STE.
3. 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 licence conditions) shall apply.
4. STE collects data for the purpose of executing 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 marketing at any time. In addition, the customer is entitled to request information from STE about his stored data and, if the data is incorrect, to request that it be corrected or, in the case of unauthorised data storage, that it be deleted. In the event of violations, the customer shall have 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 recognisable 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 as confidential. 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 company names, project names 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 of conclusion of the contract. Should these framework conditions change, STE 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 adjustment of the GTC in accordance with the above clause 1 shall only become effective if STE notifies the customer of the adjustment at least eight weeks before the planned entry into force, at least in text form and with express reference to the changes. If the customer does not agree with the notified adjustment, he shall have 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. STE shall explicitly draw the customer’s attention to this approval effect of his silence in the notification.
3. Should it be unreasonable for STE to continue the contract as a result of the customer’s objection, STE shall be entitled to terminate the contract with a notice period of three weeks to the end of the day preceding the planned entry into force of the amended GTC.

17. non-solicitation clause

1. For the duration of the contractual cooperation and for a period of two years after termination of the contractual cooperation between STE and the customer company, the customer company is expressly prohibited from directly or indirectly (e.g. through third parties) enticing away employees of STE 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. STE and the customer company recognise the special position of trust in the deployment of STE employees resulting from the joint project and other cooperation. STE’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 STE employees and the client company, which can last for months. The prevailing shortage of skilled labour also plays a decisive role here, whereby the client company – which operates in a market segment in which STE’s employees could easily be deployed very well – has direct permanent contact and access to STE’s employees due to the close project cooperation described above. The customer company is thereby put in a position to test STE’s employees in everyday working life to a certain extent and would therefore assume a lower contractual risk when hiring them.
3. In the event of poaching, the customer company undertakes to pay a contractual penalty to STE in the amount of two gross annual salaries (including any bonuses, management bonuses, etc.) relating to the respective employee. The contractual penalty shall be due and payable within 30 days of the headhunted employee leaving STE.
4. The contractual penalty serves in particular to compensate for the damage incurred by STE – in particular the loss of labour and know-how resulting from the loss of the employee.
   This enticement 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 shall be the registered office of STE in Chemnitz. The same shall apply if the customer has no general place of jurisdiction in Germany. However, STE shall be entitled to sue the customer at its registered office.
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 applies in the event of the existence or occurrence of a loophole that needs to be filled.

SmartTECS Engineers GmbH

Chemnitz, 10 October 2023

Robert Reuther

Managing Director