1 General provisions
1.1 The standard terms and conditions of The Smart Plan – Eirini Koutava (hereinafter, “The Smart Plan”) shall apply to all business relationships between THE SMART PLAN and its customers, unless other terms are agreed to in writing in individual cases. Should a term for customers apply exclusively to consumers or enterprises, the customer shall be described as consumer or enterprise. Terms which apply to enterprises shall apply accordingly to other non-consumers.
1.2 If a term should apply to specific business transactions, this shall be clearly indicated by mentioning the object of the service or the type of contract. The special terms and conditions for books which are appended, shall apply. These terms and conditions are an integral part of the THE SMART PLAN standard terms and conditions.
1.3 General standard terms and conditions of the customer shall only apply if they are recognised in writing by THE SMART PLAN.
1.4 Upon express written acknowledgement by the customer, THE SMART PLAN’s standard terms and conditions shall continue to apply to subsequent contracts if no special agreement has been reached in this regard. In case of later amendments and/or supplements to the terms, this shall apply only if the customer has been informed in writing of the amended and/or supplemented terms prior to the placement of the order.
1.5 The text form defined in § 126 b German Civil Code shall suffice to meet the requirement of writing as prescribed in the present THE SMART PLAN standard terms and conditions.
1.6 Previous THE SMART PLAN standard terms and conditions are hereby rendered invalid. Clause 1.4 Sentence 2 shall apply accordingly.
2 Conclusion of contract
2.1 In the case of offers from THE SMART PLAN, the company reserves the right to make technical and other changes within the scope of what can be deemed reasonable. THE SMART PLAN offers to companies are subject to change without notice unless a specific period of legal commitment has been promised.
2.2 When customers place orders, they declare their offer to contract in a binding manner. If the order is made electronically, THE SMART PLAN shall confirm receipt of the order immediately. Confirmation of receipt shall not represent binding acceptance of the order. It can be combined with a declaration of acceptance. An order carried out by THE SMART PLAN without issuing a written declaration of acceptance is deemed to have been accepted.
2.3 In the case of an electronic order by a consumer, THE SMART PLAN shall store the text of the agreement and send it to the customer in writing upon request, together with these standard terms and conditions.
3 Implementation of contract
3.1 In individual cases, implementation of the contract may depend on the customer paying a deposit or providing some other form of security.
3.2 The dates given by THE SMART PLAN are anticipated times unless they have been agreed upon expressly in writing as fixed deadlines.
3.3 The customer is not entitled to assign to third parties rights and/or duties arising from contracts concluded with THE SMART PLAN without the specific written consent of THE SMART PLAN.
4 Reservation of ownership, right of withdrawal
4.1 Objects, particularly materials where, according to the agreement, ownership has to pass from THE SMART PLAN to the customer, shall remain the property of THE SMART PLAN until full payment of all current and future claims due to THE SMART PLAN as a result of its business relationship with the customer has been made. Likewise, the granting of contractually agreed rights shall become effective only subject to the aforementioned full settlement of all claims.
4.2 THE SMART PLAN shall be entitled to withdraw from the contract and to reclaim the goods in the case of failure to pay by the due date or other behaviour of the customer contrary to the terms of the contract.
5 Right of revocation
5.1 In the case of an agreement that is concluded exclusively via telecommunications media, the consumer shall be entitled to revoke his or her declaration of intent to enter the agreement within a period of 14 days following the receipt of goods and the text of this cancellation policy (for instance via letter, fax or e-mail). This revocation period shall begin with the delivery of goods on the day they are received, in the case of repeat delivery of the same type of goods on the day the first partial delivery is received and in the case of services on the day on which the contract is concluded. This revocation need not be for cause and must be declared in writing or by sending back the goods to
THE SMART PLAN The Smart Plan – Eirini Koutava, Segitzdamm 60, 10969 Berlin, Germany, e-mail: firstname.lastname@example.org
Dispatching the goods in good time shall suffice as evidence that the deadline has been met.
5.2 No right of revocation shall exist in the case of contracts for the supply of goods that are made to the specification of the consumer or are clearly custom-made to the personal needs of the consumer or that are not suitable for shipping back because of their nature or condition;
– in the case of contracts for the supply of books, if the product was opened by the consumer;
5.3 In the case of a contract that has as its subject the delivery of goods, if the consumer exercises his or her right of revocation, he /she is obliged to return the goods if the delivery item can be sent by package. The cost of returning the goods shall then be borne by the consumer if he/she exercises his or her right of revocation and the value of the order is up to 35.00€, unless the goods supplied are not the goods that were ordered. In the case of an order value of over 35.00€, the consumer does not have to pay the costs of returning the goods.
5.4 The consumer must compensate for lost value for any deterioration that has arisen by using the goods in accordance with the conditions. The consumer may test the goods with care. The consumer must pay for any loss in value resulting from using them above and beyond pure testing and if the goods can no longer be sold as “new”.
6 Remuneration, payment conditions
6.1 Prior to conclusion of the contract, THE SMART PLAN shall inform the customer in writing about the price of the service offered including all taxes and other price components, about any additional delivery and dispatch costs, about costs that arise for the consumer through the use of telecommunications media, if they are above and beyond the usual basic charges which the consumer must expect, and about the scope of limited-term offers, particularly regarding the price.
6.2 The customer can pay the price by Paypal. THE SMART PLAN reserves the right to exclude certain types of payments.
6.3 The customer must pay within 14 days of performance of the service. THE SMART PLAN shall not be obligated to accept cheques or bills of exchange. Acceptance of cheques or bills of exchange shall only be in order to fulfil the contract. Discount charges and bill of exchange charges shall be paid for by the customer and are due for payment immediately.
6.4 After expiry of the deadline for payment in accordance with clause 3, the customer is in default with regard to payment. Consumers must pay interest on their debt of 5 per cent above the base lending rate (§ 247 German Civil Code) during the period of default. Enterprises must pay interest on the debt of 8 per cent above the base lending rate during the period of default. THE SMART PLAN reserves the right to provide evidence of greater damage caused by default and to assert its corresponding claim vis-à-vis enterprises.
6.5 If THE SMART PLAN knows of circumstances that call into question the ability or willingness of the customer to pay, particularly if cheques are written on overdrawn accounts or payments are stopped or if the customer is in default with regard to due payments, THE SMART PLAN is entitled to accelerate the maturity of the entire remaining debt, even if cheques or bills of exchange have already been accepted or credit terms or deferment of payment have been granted. THE SMART PLAN is also entitled in this case to demand advance payments or security payments or, after providing an appropriate notice period, to withdraw from the contract.
6.6 Customers have a right to offset debts only if this counter-claim has been established such that it is legally effective or has been recognised by THE SMART PLAN. Customers may exercise their right of retention only if the counter-claim is based on the same contractual relationship.
7 Passing of risk
7.1 For consumers, the risk of accidental perishing or deterioration of the goods sold passes, in the case of purchase by delivery, to the consumer on handover of the goods.
7.2 For enterprises, the risk of accidental perishing or deterioration of the goods passes to the enterprise upon delivery or alternatively, in the case of sale by delivery, when the goods are handed over to the carrier, the freight driver or the person or institution otherwise appointed to execute the shipment.
7.3 Risk shall be deemed to have passed if the customer is in default with regard to acceptance.
8 Warranty in the case of purchasing contracts
8.1 Consumers shall have the choice of whether subsequent fulfilment of the contract should occur through remedying of a defect or supply of a replacement for the goods. THE SMART PLAN shall be entitled to refuse the form of subsequent fulfilment selected if this is only possible at the expenditure of disproportionately high costs and the other form of subsequent fulfilment has no significant disadvantage to the consumer.
In the case of enterprises, THE SMART PLAN may choose to subsequently fulfil the agreement by remedying the defect or supplying a replacement.
8.2 If subsequent fulfilment fails, customers may choose a reduction in payment (decrease in value), cancellation of the contract (withdrawal) or compensation for damages instead of payment. If the customer chooses compensation for damages instead of payment, the liability restrictions set out in clauses 11.1 and 11.2 shall apply. If there are only minor defects, the customer shall not have the right to withdraw from the contract.
8.3 Enterprises must notify THE SMART PLAN in writing of obvious defects within a period of one week from receipt of the goods; otherwise their assertion of a warranty claim shall be excluded. Dispatch in good time suffices as adherence to the deadline. The enterprise has full responsibility for providing proof for all claim prerequisites, especially in respect of the defect itself, the time when the defect was established and for giving notice in good time of the defects.
9 Warranty in the case of service contracts
9.1 If the service is not provided in accordance with the contract or if it is defective and if THE SMART PLAN is responsible for this, it is obligated to provide the service without additional cost to the customer within an appropriate period of time. The prerequisite is notification of the defect by the customer, which must be given immediately and at the latest within two weeks of it becoming known. If the service is not provided in accordance with the contract for reasons that can be attributed to THE SMART PLAN within a reasonable period of grace, which must be set expressly by the customer, the customer shall be entitled to terminate the contract without giving notice. In this case, THE SMART PLAN may claim payment only for the services provided on the basis of the contract until the termination becomes effective. No payment shall be due for services which the customer can prove are unsuitable and of no interest within two weeks of giving notice.
9.2 This does not affect the right to extraordinary termination for good cause. THE SMART PLAN may claim payment for services provided on the basis of the contract until the termination becomes effective. No payment shall be due for services which the customer says are of no interest within two weeks notice being given.
9.3 Further-reaching claims on the part of the customer on account of qualitative service effects shall be excluded. This exclusion does not apply in the case of intent or gross negligence.
10 Guarantee in the case of work contracts
10.1 If the work is defective, THE SMART PLAN may choose – in fulfilment of its guarantee obligation – between remedying the defect and producing new goods.
10.2 If the legal prerequisites are met and the customer chooses compensation for damages instead of the service, then the liability restrictions set out in clauses 11.1 and 11.2 shall apply. If there are only minor defects, the customer shall have no right to withdraw from the contract.
10.3 If THE SMART PLAN is not responsible for the infringement of duty connected with the defect or if the defect is only minor, the customer shall have no right to withdraw from the contract.
10.4 Unless statutory provisions stipulate otherwise, the rights of the customer in the case of defects lapse one year after acceptance of the goods. The one year warranty period shall not apply if THE SMART PLAN is guilty of gross negligence or in case of injury or health damage that can be attributed to THE SMART PLAN or if the customer dies. Liability under the product liability act shall remain thereby unaffected.
10.5 In the case of fraudulent concealment of defects or the assumption of a guarantee for quality, further-reaching claims remain unaffected.
11.1 In the case of minor negligence, the liability of THE SMART PLAN shall be limited to foreseeable, direct, average damages typical for the kind of contract in question. This shall also apply in the case of minor negligence on the part of its statutory representatives or vicarious agents.
THE SMART PLAN shall not be liable to enterprises in the case of minor negligence as to insignificant contractual duties.
11.2 This liability restriction shall not apply in the case of injury or damage to health that can be attributed to THE SMART PLAN or if the customer dies. It shall not affect liability under the product liability act.
11.3 The customer exempts THE SMART PLAN from all disadvantages that may arise for it through third parties on account of damaging actions by the customer – regardless of whether these are wilful or negligent.
12 Privacy protection
12.1 The customer has been informed in detail about the type, scope, place and purpose of the collection, processing and use of the personal data necessary for carrying out orders and about the requirement that he/she gives express consent to the use of his/her personal data for other purposes (see privacy protection declaration).
12.2 The customer expressly consents to the collection, processing and use of his/her personal data in a form rendered anonymous for purposes of customer information, market research and for necessary structuring of THE SMART PLAN’s service offering. The customer has the right to revoke this approval at any time and this shall be effective for the future.
13 Final provisions
13.1 The German version of these terms and conditions has precedence over any foreign language versions and is binding in case of doubt.
13.2 The law of the Federal Republic of Germany shall apply. In the case of consumers who do not conclude the contract for vocational or commercial purposes, this legal choice only applies in so far as the protection granted through mandatory conditions of the law of the country in which the consumer usually resides is not withdrawn.
13.3 If the customer is an enterprise, the sole place of jurisdiction for all disputes arising from this contract shall be Berlin. The same shall apply if the customer does not have any general place of jurisdiction in Germany or if his/her place of residence or usual residence at the time the action is filed are unknown.
13.4 Should any individual provision or any part of any provision of this agreement be or become void or unenforceable, the validity of the remaining provisions shall in no way be affected. In such case, the void and/or unenforceable provisions shall be replaced by relative provisions coming as close as possible to the sense and spirit and purpose of this agreement.