General Terms and Conditions of smart-me AG
9. August 2021
These General Terms and Conditions (‘GTC’) apply to use of the products and services provided by smart-me as well as all content on the smart-me platform (the app and online portal). Furthermore, these GTC govern the conclusion, content and execution of contracts concerning products and services, especially planning services, consulting services, studies, monitoring, technical services and other services of a contractual nature performed for the customer by smart-me AG.
These GTC are a component of every contract concluded between smart-me AG (‘smart-me’) and its customers. The contract is formed upon receipt of the written or electronic confirmation of acceptance of the order (i.e. order confirmation) from smart-me AG (the ‘Supplier’). All agreements and legally relevant declarations must be set out in writing in order to be effective. Email shall satisfy the written form requirement. Quotations and order confirmations issued by smart-me AG may also be signed by merely indicating the person responsible, the department responsible or the address in lieu of a handwritten signature or electronic certificate (e.g. ‘smart-me AG, Lettenstrasse 9, 6343 Rotkreuz’).
The version of the GTC of smart-me AG valid at the time of conclusion of each contract will apply. All side agreements, assurances and amendments to these GTC must be set out in writing and shall only be valid if they are expressly accepted by smart-me in writing. Unless expressly designated as binding, they are non-binding and subject to change. Unless expressly designated as binding, all declarations and promotional materials of smart-me AG are to be considered non-binding and can be changed without prior notice.
smart-me may amend the GTC from time to time. Amendments shall take effect upon the publication of the updated GTC on this page. By continuing to access or use the services after this publication, you agree to the amended GTC. If a user rejects the amended GTC, smart-me reserves the right to terminate the contractual relationship with that user with immediate effect.
The nature and scope of the services shall be consistent with the accepted offer (order) and shall be set out in the contract. During the performance of the services, either party may propose changes in writing at any time. If the customer submits a change request, the Supplier shall inform the customer of whether the change is possible in writing or by email and describe the effect it would have on the contract, in particular on the price and deadlines. If the customer accepts these changes in writing or by email, the contractual amendment shall take legal effect.
Conclusion of contract
All offers are non-binding and subject to change. Open-ended quotations from smart-me shall expire within 30 days of being sent. Any quotation may be withdrawn until the order confirmation is sent.
Limited-time orders, i.e. call-off orders, must be called off within the deadline. If an order is not fully called off within the deadline, the remaining quantity shall be delivered by the seller automatically.
The seller is not obliged to accept returns of surplus goods or goods that have been ordered by the buyer by mistake. If returned goods are accepted as a gesture of goodwill, 80% of the invoice amount shall be refunded or credited if the returned goods are undamaged, in their original packaging and unused. Changes to and cancellations of orders shall only be valid if the seller agrees to them in writing. The seller shall invoice the buyer for any expenses already incurred by the seller.
The prices are in the currency indicated in the price lists of smart-me AG. All prices exclude extra charges, packaging, shipping and customs. VAT shall be shown separately. The provisions concerning fixed prices do not apply to changes in VAT. Postage and packaging shall be shown separately on the invoice. smart-me AG reserves the right to adjust prices due to market changes, exchange rate fluctuations etc.
Terms and conditions of delivery
Unless otherwise agreed in writing, the customer shall bear the costs of transport, shipping, customs, packaging etc. The customer is responsible for taking out and paying for transport insurance.
Partial and advance deliveries are permitted without an agreement. Deliveries shall be ex works (for international deliveries: Incoterm 30, DDP, VAT unpaid in accordance with Incoterms 2015), and customs duties shall therefore be charged to the buyer on the invoice.
The parties shall agree on the delivery date. The customer shall accept delays to deliveries, especially due to unforeseen circumstances, force majeure, war, international tensions, unrest, a lack of raw materials, business disruptions, epidemics, pandemics, strikes, lock-outs, official measures, a lack of power and labour etc. These circumstances do not entitle the customer to claim damages or withdraw from the contract. If the delivery deadline is not met, the buyer shall grant the seller a reasonable grace period.
Assembly and set-up
The delivered products must be assembled, set up and maintained in accordance with the specifications of the seller (assembly and operating instructions) as well as the relevant statutory provisions and national standards.
Customers are responsible for setting up the data network access required to use the services. Use of a device to access the services wirelessly might incur data and connection fees from the mobile network provider; the customer is responsible for paying such fees.
The goods delivered by smart-me shall remain the property of smart-me until the purchase price is paid in full. The payment must be made in the currency indicated by smart-me AG in the order confirmation.
Unless otherwise agreed in writing, each invoice is payable in full at the registered office of smart-me AG within 10 days of receipt of the invoice. Unauthorised deductions shall be charged to the customer. Should the buyer fail to pay an outstanding amount by the due date, i.e. within the 10-day deadline, it shall be deemed to be in default after one payment reminder has been sent.
Inspection of the goods, acceptance of the services and warranty
The seller assures the buyer that the delivery shall be free from defects and suitable for its intended purpose. This assurance applies for two years as of the date of delivery; claims shall become time-barred after this time. All further warranty claims are hereby expressly excluded.
Unless otherwise agreed in writing, the customer shall thoroughly inspect the goods and services for quality defects and missing components. Complaints about inferior quality must be filed with smart-me AG in writing within 14 days of acceptance. The customer must immediately notify smart-me AG in writing of any latent defects which only become evident after this period. Late complaints cannot be considered.
All returns (RMA) must be registered with us by means of an online form. If a device is exchanged, the buyer shall pay the postage costs of returning the defective devices.
Upon receiving the notification of defects, smart-me is entitled to have the alleged defect examined by its own employees or experts.
The customer may request that the Supplier remedy the lack of conformity with the contract by rectifying the defect or delivering a replacement. All further warranty claims are hereby expressly excluded.
Reported defects or complaints do not establish grounds to withhold payments.
Any issue caused by normal wear and tear, inadequate maintenance, improper handling, overuse, destructive third-party actions etc. does not constitute a defect and is not covered by the warranty.
If the customer modifies the goods delivered by smart-me without the consent of smart-me, this shall void the warranty provided by smart-me.
An acceptance certificate shall be prepared for the services performed by smart-me AG. By signing the certificate, the customer confirms that all services under the contract have been performed and handed over and that the contract is complete. If partial services have been performed, this provision applies mutatis mutandis. Unless otherwise agreed in a contract, if smart-me AG performs services for the customer after the project has been handed over, the customer shall be invoiced for these services separately and on the basis of the current price list of smart-me AG.
The customer is obliged to accept the services as soon as smart-me AG notifies the customer that the work is finished. If the customer fails to accept the services despite being obliged to do so, the services or partial services shall be considered accepted four weeks after smart-me AG handed over the service or partial service or announced their completion. Furthermore, services or partial services shall be considered accepted if they have been put into operation by the Supplier.
Unless otherwise agreed in writing, smart-me offers the customer no other guarantees, warranties and/or assurances besides the warranty above.
No liability is accepted for losses of production, losses of use, losses of profit or any other direct or indirect damage.
All contractual and non-contractual liability (Article 41 ff. of the Swiss Code of Obligations) is hereby fully rejected to the extent permitted by law. In particular, the Supplier can only be held liable for intent or gross negligence. The Supplier can only be held liable for direct damage and only if the customer proves that the damage was caused by intent or gross negligence on the part of the Supplier. Liability is limited to the price of the service in question.
Liability for loss of use and for any other damage caused by delays to delivery dates and deadlines is expressly rejected.
The customer must file claims against the carrier due to damage, loss or delays during transit within the given deadline. If the customer fails to do so, the customer shall bear responsibility for all resulting consequences and damage.
The Supplier cannot be held liable for auxiliary personnel. Any further liability of the Supplier for damage of any kind is excluded. In particular, under no circumstances is the customer entitled to compensation for damage resulting from a loss of production, loss of use, loss of data, loss of orders or loss of profit, including indirect damage and consequential damage.
Customers are responsible for procuring and updating the compatible hardware and devices required to access, update and use the services and applications. smart-me makes no guarantee that the services or parts thereof will function on the hardware or devices in question. Furthermore, the services may suffer disruptions and delays due to use of the internet and electronic means of communication.
Additionally, smart-me can restrict or block access to the services on the platform if necessary for reasons relating to capacity, security, server integrity or technical measures. Where possible, smart-me shall give users advance notice of such restrictions.
Cancellation and withdrawal
The cancellation of contracts or orders requires express written consent as well as the coverage of all expenses incurred by smart-me.
Complaints about a partial delivery do not entitle the customer to cancel the delivery of the rest of an order.
If the customer is in default or if its financial situation changes in a way that jeopardises payment for the goods being received, smart-me is entitled to withdraw from the contract at any time. smart-me expressly reserves the right to file claims for damages.
After the conclusion of the contract, smart-me is entitled to withdraw if it becomes impossible to perform the service or if smart-me cannot reasonably be expected to perform the service due to a change in circumstances.
smart-me retains the copyright, intellectual property rights and all related rights to all products, documents and software belonging to smart-me.
Any reproduction, dissemination or exploitation for other purposes is prohibited and requires the express written consent of smart-me. smart-me reserves the right to take legal action if this provision is breached.
If software is included in the scope of the service, the seller shall grant the buyer a non-exclusive right (i.e. a licence) to use the software and its documentation. This right is non-transferable. Sub-licences may not be granted. The software may not be used on more than one system. The buyer may only duplicate the software for back-up purposes and to the extent necessary for contractual use. With the exception of the rights of use expressly mentioned here and those required by law, the buyer shall not obtain any rights of any kind to the software or documentation.
Article 21 of the Swiss Copyright Act notwithstanding, the buyer is not entitled to decompile or edit the software without the consent of the seller. Reference is made to section 9 with regard to the warranty, guarantee and liability.
Confidentiality and data protection
Each party – including their employees and agents – undertakes to treat as confidential all documents and information that are not public knowledge and relate to the business activities of the other party to which they gain access as part of the preparation and execution of this agreement. As long as a party has a legitimate interest, this duty shall remain in effect even after the termination of the contractual relationship.
The parties undertake to comply with the relevant data protection regulations and to use personal data only for the contractually agreed purposes. In particular, the employees of both parties must be required to hold in strict confidence personal data and other information to which they are given access or happen to gain access as part of their work for the parties.
The customer is solely responsible for adhering to the general and local safety regulations as well as the instructions of the staff.
The customer is obliged to report critical problems that require medical attention to smart-me within 24 hours.
Transfer of benefit and risk
The benefit and risk shall transfer to the customer when the goods are loaded onto the means of transport, regardless of whether the transport is being carried out or organised by smart-me, the customer or a third party.
Place of performance and place of jurisdiction
Orders and deliveries are subject to Swiss law, excluding the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction is Zug, Switzerland.
In case of differences between the German and translated versions of these GTC, the original German text shall take precedence. Should any provision of these GTC be or become null and void or ineffective, this shall not affect the remaining provisions of these GTC.