General Terms and Conditions
General Terms and Conditions of salesmotion Digital Consulting GmbH, Hohenlindenerstraße 1, 81677 München, for deliveries and services in the field of cleaning, service and transport robotics.
Version
GTC version: 29.01.2024 · salesmotion Digital Consulting GmbH · Hohenlindenerstraße 1 · 81677 München
§ 1 Scope of Application
1.1These General Terms and Conditions ("GTC") apply to all services and offers provided by salesmotion Digital Consulting GmbH (the "Provider") to its customers. They also apply to all future deliveries, services or offers to the customer, even if not separately agreed again.
1.2Terms and conditions of the customer or of third parties shall not apply, even if the Provider does not expressly object to their validity in an individual case. Any reference by the Provider to letters or emails from the customer bearing the customer's own terms and conditions does not constitute consent to the validity of those terms and conditions.
1.3The Provider is entitled to unilaterally amend and/or supplement these GTC with effect for the future, insofar as this is necessary to safeguard legitimate interests. In the event of any such amendment, the customer will be informed in advance of the intended changes or additions within a reasonable notice period. If the customer does not object to the validity of the amended GTC within two weeks of being notified (the "objection period"), the amended GTC shall be deemed accepted by the customer. In its notification, the Provider will draw attention to the right of objection and the significance of the objection period. In the event of an objection, the customer may continue use under the previous version of the GTC.
1.4If the parties enter into agreements deviating from these GTC, such agreements shall take precedence over the provisions of these GTC. The content of any such agreements shall be governed by a written contract or the Provider's written confirmation. Deviating agreements made after conclusion of the contract must be made in text form (Textform) to be effective.
1.5The Provider concludes contracts exclusively with entrepreneurs (Unternehmer), i.e. with persons pursuing an independent professional (or secondary) activity. By concluding the contract, the customer therefore warrants that it is an entrepreneur within this meaning and that it is entering into the contract in that capacity.
§ 2 Service Obligations
2.1The Provider provides services in the field of cleaning and advertising robots, in particular the sale, leasing and maintenance of the devices.
2.2The scope of the services is specified by the contractual offer. With regard to the performance of these services, the Provider has a right to determine performance in accordance with § 315 of the German Civil Code (BGB).
2.3The customer is obliged to support the Provider's performance of services through appropriate cooperation. In particular, the customer shall fully implement the checklist provided by the Provider prior to installation and shall ensure all technical prerequisites (e.g. a sufficient internet connection). If the Provider's services cannot be performed because the customer has not adequately fulfilled its cooperation obligations, the Provider may demand reimbursement of the costs thereby incurred (travel, working time, etc.).
2.4The Provider is entitled to have services owed to the customer performed by vicarious agents / subcontractors.
2.5Should the use of image or video material become necessary in the course of the cooperation, the customer shall provide the Provider with all rights of use and editing in respect thereof for the purpose of contract performance, or shall otherwise arrange a sufficient licence.
2.6If the parties determine that services are to be performed by the Provider that go beyond the agreed scope of services, such services shall be remunerated separately at an hourly rate to be determined by the Provider. In case of doubt, a market-standard hourly rate shall be deemed agreed.
2.7Unless expressly agreed otherwise in writing, the Provider does not owe the customer the achievement of a specific result (work).
2.8The customer shall observe the customary conduct of a fair and reasonable merchant towards the Provider. The Provider reserves the right to pursue civil action against any unlawful statement about the Provider and its services, whether made by customers, competitors or other third parties, in particular untrue factual assertions and defamatory criticism, and furthermore to file a criminal complaint without prior notice.
2.9The service and maintenance package does not include the replacement of consumables. These include, in particular, squeegee blades, brushes, filters of all kinds, side brushes, dust bags and cleaning agents. Also not included is the replacement of defective parts attributable to the customer's own fault.
§ 3 Formation of Contracts
3.1The presentation of services on the website, on social networks, in advertisements and in brochures does not constitute a binding offer by the Provider to conclude a contract.
3.2The contract between the Provider and the customer may be concluded by telephone, in writing or in text form.
3.3Upon conclusion of the contract, the customer will receive an order confirmation from the Provider upon request; however, this confirmation is not constitutive of the conclusion of the contract.
3.4If agreed in writing, the Provider grants the customer, following successful installation and commissioning of the device, the opportunity to test it for 7 days. Within this period, the customer may cancel the contract. If the customer makes use of this option, the Provider is entitled to charge a flat fee of EUR 999 per device to cover set-up, testing and shipping costs. The customer shall return the device to the Provider in its original packaging and at the customer's own expense. The customer is liable for any damage to the device during the test phase, unless such damage is attributable to a defect in the device.
3.5Leasing contracts are concluded directly between the customer and the leasing provider and contain the terms and conditions arising from that contract. For services arising from the Provider's offer that go beyond the leasing arrangement (maintenance, etc.), the customer concludes a separate contract with the Provider itself. A precondition for the formation of the contracts – both between the customer and the lessor and between the customer and the Provider – is that the Provider's leasing partner grants its approval after reviewing the documentation.
§ 4 Contracts of Sale
4.1Insofar as the Provider sells products to the customer, the following points of this section shall apply:
4.2In the event that the Provider is unable to meet a contractually agreed delivery period for reasons for which the Provider is not responsible, the Provider shall inform the customer of this circumstance without delay and shall at the same time communicate the anticipated or new delivery period. If delivery cannot be effected even within the newly notified delivery period due to unavailability of the goods, the Provider is entitled to withdraw from the contract in whole or in part; the Provider shall promptly refund any consideration already rendered by the buyer (in the form of payment of the purchase price). Unavailability of the goods exists, for example, where the Provider's own supplier has failed to deliver on time, where the Provider has entered into a congruent covering transaction, where other disruptions in the supply chain occur (for instance due to force majeure), or where the Provider is not obliged to procure the goods in the individual case.
4.3Delivery shall be made ex warehouse. The warehouse also constitutes the place of performance (Erfüllungsort) for delivery and the place for any subsequent performance (Nacherfüllung). If the customer wishes the goods to be dispatched to a different destination (sale involving carriage of goods), the customer shall bear the shipping costs, unless otherwise agreed. If nothing has been contractually agreed, the Provider may itself determine the manner of dispatch (packaging, shipping route, carrier).
4.4Upon handover of the goods to the customer, the risk of accidental loss and accidental deterioration passes to the customer. In the case of a sale involving carriage of goods, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay pass upon delivery of the goods to the freight forwarder or carrier. Where acceptance (Abnahme) of the goods has been contractually agreed, such acceptance shall be decisive for the passing of risk. Further statutory provisions of the law governing contracts for work remain unaffected. Handover or acceptance of the goods is deemed to have occurred if the customer is in default of acceptance.
4.5The Provider retains title (Eigentumsvorbehalt) to the delivered goods until full payment of all its present and future claims arising from the contract of sale and an ongoing business relationship (secured claims).
4.6Until full payment of the secured claims has been made, the goods subject to retention of title may neither be pledged to third parties nor assigned as security. The customer shall notify the Provider in writing without delay if an application for the opening of insolvency proceedings is filed or if third parties gain access (e.g. by way of seizure) to goods belonging to the Provider. Insofar as the third party is unable to reimburse the Provider for the judicial and extrajudicial costs of an action pursuant to § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable to the Provider for the resulting shortfall.
4.7If the delivered goods are defective, the Provider is entitled to make the subsequent performance owed by it conditional upon the buyer paying the purchase price due. The customer, however, retains the right to withhold a part of the purchase price that is reasonable in relation to the defect.
4.8The general limitation period for claims arising from material or legal defects is, by way of derogation from § 438 paragraph 1 no. 3 BGB, one year from delivery. Where acceptance has been contractually agreed, the limitation period begins upon acceptance.
§ 5 Contracts for Work
5.1Insofar as the Provider performs services for the customer that are subject to acceptance, the following points of this section shall apply:
5.2The Provider may request the customer, setting a period of one week, to grant partial or full acceptance. Acceptance shall be deemed to have occurred upon expiry of that period if the customer has not stated in writing to the Provider which defects still need to be remedied. The customer shall prepare a defect report of any defects and provide it to the Provider. The risk of transmission lies with the customer.
5.3Insofar as defects are identified by the customer, the Provider is entitled to continue processing and remedying them. Where a material defect exists, the Provider is entitled to carry out remedial work twice within a reasonable period to be set by the customer.
5.4If the Provider is prevented from performing the agreed services and the cause of the hindrance originates from the customer's sphere, the Provider's claim to remuneration shall remain unaffected.
5.5Claims relating to defects that were identifiable during the acceptance inspection exist only if the customer asserts them, or reserves the right to do so, during the acceptance inspection.
§ 6 Rental Agreements
6.1Insofar as the Provider rents its devices to the customer, the following points of this section shall apply:
6.2Without the express permission of the lessor, the lessee is not entitled to allow a third party to use the rented item, in particular to sublet it. If the lessee allows a third party to use the item, the lessee shall be liable for any fault of that third party in connection with such use, even if the lessor has consented to the transfer of use. The assertion of further damages remains unaffected.
6.3The lessee shall inspect the rented item without delay after taking it over and, if a defect becomes apparent, shall notify the lessor of it without delay.
6.4If the lessee fails to give notice of a defect, the rented item shall be deemed free of defects, unless the defect was one that was not identifiable during the inspection. If such a defect subsequently becomes apparent, notice must be given without delay after its discovery; otherwise the rented item shall also be deemed approved with regard to that defect.
6.5If the lessee fails to give such notice, the lessee shall be obliged to compensate the lessor for any resulting damage.
6.6The lessee may demand the remedy of defects that eliminate the fitness of the rented item for use as contractually intended. The lessor has the right to choose between remedying the defect at its own cost and providing an equivalent replacement. The lessee is exempt from paying rent for the period during which the fitness of the rented item for use is eliminated.
6.7The lessee undertakes to pay the agreed rent in advance, to use the rented item only for its intended purpose and to handle it properly. In addition, the lessee is obliged, prior to putting the rented item into operation, to carefully read the operating instructions and safety instructions and to observe the requirements set out therein, to treat the rented item with care, to ensure proper and professional maintenance and care of the rented item (e.g. use of suitable operating materials), and to take suitable and reasonable precautions to protect the rented item against theft and weather-related influences. Fault on the part of the lessor's assistants, apprentices and other agents shall be equivalent to fault on the part of the lessor.
6.8The lessor is entitled to inspect, examine or have examined the rented item following prior notice.
6.9The lessee is obliged to return the rented item to the lessor on the agreed date and at the agreed time in the condition in which the lessee took over the rented item at the start of the rental relationship.
6.10If the lessee fails to return the rented item after termination of the rental relationship, the lessor may, for the duration of such withholding, demand as compensation the agreed rent or the rent customary in the locality for comparable items. The assertion of further damages remains reserved.
6.11The rented item is inspected at the lessor's premises after its return. If damage to the rented item is identified during this inspection, the lessee will be notified accordingly. In the damage notification, the lessor shall set a period during which the damaged rented item will be held available for the lessee for the purpose of preparing a (counter-)expert report. If this period expires unused, the lessor shall carry out the repair or procure a replacement. For the period required to carry out the repair, the lessor may demand the agreed rent or the rent customary in the locality for comparable items. The lessee shall bear the expenses required to remedy the defect.
6.12In the event of theft or economic total loss of the rented item, the lessee undertakes to compensate the lessor for the damage at replacement value. If repair of the damaged rented item is possible, the lessee undertakes to reimburse the resulting repair costs. The same applies to damage to or theft of components and/or accessories of the rented item. The lessee is furthermore liable for all further damage thereby caused to the lessor.
6.13Should third parties assert rights to the rented item by way of seizure, confiscation or on the basis of other claimed entitlements, or take possession of the rented item with or without authorisation, the lessee is obliged to notify the lessor without delay, at the latest within three days; such notification must be given in writing, by letter, fax or email. At the same time, the lessee is obliged to give written notice of the lessor's ownership and to provide the lessor with a copy of that notice. The lessee is obliged to reimburse the lessor for all costs of recovery and, at the lessor's request, to pay a reasonable advance towards legal costs upon a single request.
§ 7 Payment Terms
7.1The prices stated and communicated by the Provider are binding and are quoted net, plus value added tax. The amount of the remuneration shall be determined by the agreement reached between the parties.
7.2Payment for the Provider's work services (set-up) is due immediately upon invoicing or as individually agreed. Payment for the services (maintenance package) and the rental services is made monthly and is based on the date of conclusion of the contract or as individually agreed. The customer is free to settle payment in full in advance (annual amount).
7.3The Provider shall issue the customer with a proper invoice showing value added tax (if applicable, through a vicarious agent).
7.4Set-off against counterclaims is permitted, on either side, only if the other contracting party has acknowledged the set-off or if it has been finally and conclusively established by a court. The same applies to the exercise of a right of retention by a contracting party.
7.5If the customer is in default (Verzug) with payments due, the Provider reserves the right to withhold further services until the outstanding amount has been settled.
7.6If, in the case of instalment payments (in particular under the maintenance contract), the customer is in default with at least two payments due to the Provider, the Provider is entitled to terminate the contract for cause and to discontinue the services. The Provider is entitled to claim, as damages, the entire remuneration that would become due up to the next ordinary termination date.
7.7If SEPA direct debit collection is agreed, the customer shall issue the Provider with a written SEPA direct debit mandate following conclusion of the contract. A (SEPA) direct debit authorisation granted to the Provider shall remain valid for the further business relationship until revoked. If agreed direct debits cannot be collected from the customer's account and are reversed (chargeback), the customer is obliged to transfer the amount owed to the Provider within three working days of the chargeback and to bear the costs caused by the chargeback.
§ 8 Termination
8.1The contract has the minimum term individually agreed between the parties.
8.2If the contract is not terminated with one month's notice to the end of the minimum term, the term shall be extended by one year at a time, which may again be terminated with one month's notice to the end of that term.
8.3Early termination of the "Service and Maintenance Package" / "Premium Package" / "All-Inclusive Package" / "Premium+ Package" by the Provider is only possible if the customer's monthly payment obligation is reduced accordingly as a result. The Provider charges a fee of EUR 89 net per month for the package in the field of cleaning robotics and EUR 35 net per month for the package in the field of marketing robotics and service robotics. The notice period is 1 month.
8.4Any free rights of termination under the law governing service contracts or contracts for work during the contract term are excluded.
8.5Notices of termination must be made in text form to be effective.
8.6The right to extraordinary termination for good cause always remains unaffected.
§ 9 Cancellation / Cancellation Costs
9.1If the customer wishes to withdraw from the contract after conclusion of the contract but before the start of performance, the Provider may consent to this without acknowledging any legal obligation to do so. In this case, the Provider is entitled to a lump-sum indemnity in the amount of 10% of the order volume.
9.2If the Provider asserts a lump-sum indemnity pursuant to 9.1, the customer is nevertheless entitled to prove that a lower amount of damage, or no damage at all, has occurred.
9.3The Provider reserves the right, instead of the lump-sum indemnity pursuant to 9.1, to claim a higher, individually calculated indemnity, provided it is demonstrated that expenses substantially higher than the applicable lump sum have been incurred. In this case, the Provider is obliged to specify and substantiate the indemnity claimed in concrete terms, taking into account expenses saved and any alternative use of the services.
§ 10 Rights of Use
10.1The Provider grants the customer a simple right of use to the simple rights of use created, arising, acquired or to be acquired by the Provider in connection with the provision of the devices and the related advertising materials. The transfer is made for the duration of the contract term. The rights of use are not transferable.
10.2The transfer is subject to the condition that the customer has paid the remuneration owed to the Provider under the contract in full and on time. If instalment payment has been agreed, the right of use referred to in point 10.1 shall, unless otherwise individually agreed, pass to the Provider only upon full payment of the final instalment.
§ 11 Communication
11.1The parties agree that communication between them shall take place predominantly electronically, in particular via unencrypted email or via WhatsApp Business. The customer is aware that unencrypted messages offer only limited security and confidentiality.
11.2Unless otherwise agreed, "service hours" (telephone availability) shall be Monday to Sunday, around the clock.
11.3Unless otherwise agreed, "response time" (processing of your enquiry) shall be Monday to Friday, 8:00 a.m. to 8:00 p.m., excluding nationwide public holidays and public holidays of the State of Bavaria.
11.4Due to the wide variety of possible causes of error and constellations, a specific resolution time cannot be guaranteed, save where otherwise contractually agreed in an individual case.
§ 12 Liability
12.1The Provider is liable without limitation for intent and gross negligence. For simple negligence, the Provider is liable only for damages resulting from injury to life, body or health, or from the breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract in the first place and on the observance of which the contracting partner may regularly rely; in this case, however, liability is limited to compensation for foreseeable damage that typically occurs.
12.2Within the limits set out in 12.1, the Provider is not liable for loss of data or programs. Liability for data loss is limited, in amount, to the typical cost of restoration that would have been incurred had backup copies been made regularly and in a manner appropriate to the risk. Liability under the German Product Liability Act (Produkthaftungsgesetz) and liability arising from the assumption of a guarantee each remain unaffected at all times.
12.3The foregoing limitations of liability also apply for the benefit of the Provider's legal representatives and vicarious agents.
12.4If it follows from the Provider's offer that the devices provided are insured by the Provider, the scope of cover shall be governed by the insurance contract concluded between the Provider and its insurer. The insurance contract will be made available to the customer for inspection upon request. No further insurance cover exists.
§ 13 Final Provisions
13.1The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2Should individual provisions of these GTC, including this provision, be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The respective statutory provisions shall take the place of the invalid or missing provisions.
13.3The place of performance is the Provider's registered office. The exclusive place of jurisdiction (Gerichtsstand) for commercial matters is likewise the Provider's registered office.
This is a courtesy translation. In case of discrepancies, the German version shall prevail.
