Important: The following terms and conditions of sale will only apply, when directly purchasing from us, but not when purchasing from a reseller like Cleverbridge.
These English terms of sale are a translation of the German terms of sale. Valid for all legal relationships are only the German terms of sale, the English version is just given for your convenience.
1.1 These terms of sale of the SmartSVN GmbH (hereinafter referred to as "SMARTSVN") apply to licensing software copyrighted by SMARTSVN (hereinafter referred to as "Software") to companies, legal entities under public law or public legal fund assets in the meaning of §310 in connection to §14 German BGB (hereinafter referred to as "Customer"). Hereby the inclusion of own conditions of the Customer are denied, except their applicability was explicitely agreed by SMARTSVN. These terms of sale even apply, if SMARTSVN knows about opposed conditions or from these conditions differing conditions of the Customer and SMARTSVN delivers to the Customer without special reservation.
2.1 All offers and price lists of SMARTSVN, including those on the SMARTSVN website, are not binding (so-called "invitatio ad offerendum") as long as they do not become part of a contract agreement. The product presentation on the SMARTSVN website serves to issue an offer to buy. By sending a purchase order to SMARTSVN the Customer issues a binding offer to buy. A purchase contract will only be created by SMARTSVNs order confirmation or by SMARTSVNs delivery.
2.2 If SMARTSVN arranges special conditions, they basically do not apply to other currently existing or future contracts with the Customer.
3.1 If not specified otherwise, the given prices are net-Euro-prices, not including the German value-added tax (VAT). Packing and shipping costs, insurance (especially transport insurance), customs and taxes will be charged additionally. The Customer has to pay possible bank fees for his bank.
3.2 The buying price is payable with the receipt of the Software. The payment has to be made until the forteenth calender day after the invoice date, unless specified differently on the invoice.
3.3 A payment is valid as soon as the equivalent value has been credited to one of SMARTSVNs bank accounts. In case of delay in payment SMARTSVN claims 12% interest of late payment. Further legal rights of SMARTSVN in case of delay in payment remain untouched. Provided that invoices are overdue, incoming payments will be first reckoned up to expenses and interests, then on the oldest demand.
3.4 Should unexpectable expense increases occur (e.g. currency fluctuations, unexpected price increases of suppliers), SMARTSVN is entitled to pass the price increase to the Customer.
4.1 The Customer receives rights of use on the Software according to the license agreements of the Software. The license agreements can be found at SMARTSVNs website and can be downloaded and printed.
5.1 Unless specifed otherwise the Software will be delivered with the current version at the date of delivery.
5.2 SMARTSVN delivers the Software at their own choice on a maschine-readable data medium including documentation or by making the Software accessible electronically (e.g. by e-mail, download) and informing the Customer about accessing details.
5.3 For compliance of delivery dates and transfer of risks the date of the transfer to the haulage contractor is relevant, for electronic delivery the time of making the Software available and informing the Customer about it. If the Software or documentation will be damaged or destroyed after the transfer of risk, SMARTSVN delivers a replacement by the Customer refunding the copy and shipping costs.
5.4 As long as SMARTSVN
delivery and service dates will be prolonged by the period of hampering and a reasonable time after hampering ("downtime"); for the length of the downtime SMARTSVN does not breach of duty. SMARTSVN immediately informs the Customer about such hamperings and their estimated length. If the hampering by act of God takes longer than 3 months uninterrupted, the Customer and SMARTSVN are no longer bound by their contractional duties.
6.1 SMARTSVN retains the ownership on the ceded program copies and the owed rights of use of the Software until complete payment.
SMARTSVN is liable for functional and legal deficiencies as follows:
7.1 A non-substantial deficiency does not entitle the Customer to refuse the acceptance of the service subject.
7.2 If the Software contains a deficiency of substance, this does not justify to make a complaint about the whole delivery. Something different only applies if the partial delivery is of no interest to the Customer. Beyond that the Customer only is allowed to retain payments if they are in reasonable proportion to the appeared functional deficiency. If SMARTSVN cedes the Software for free, SMARTSVN can only be made liable for intent or gross negligence.
7.3 Beyond that claims of defects do not cover non-reproducible Software errors, Software which is used by the Customer on not agreed systems or changed Software without SMARTSVNs consent, unless the Customer proves that this usage or change is not causing the deficiency.
7.4 SMARTSVN has the choice between rework or compensation delivery.
7.5 The Customer is committed to take up a new Software version, if the range of functions remains according to the contract and taking up does not cause relevant disadvantages to the Customer.
7.6 The statutory period of limitation for claims of defects for new service objects is limited to one year from the transfer of risk. The legal statutory period of limitation for claims of recourse according to §478 German BGB remains untouched as well as the legal German provisions about the stop of expiry and the restart of time limits.
7.7 Preceding limitations of liability in the sections 7.1 and 7.6 do not apply to claims of damages or expenses, for which the Customer can assert a claim according to the legal German provisions. For those claims section 8 applies.
7.8 If the Customer is a merchant in the meaning of §1 of the German HGB, the Customer is bound to the testing and complaint obligations according to §377 German HGB. If the Customer omits these complaint obligations, the service subjects are passed as approved.
7.9 If the supplementary performance is done as a Software update, the Customer has to delete the first received Software after receiving of the update or to send back the data medium. The rights of use on the replaced Software expires.
7.10 If in the purpose of supplementary performance SMARTSVN delivers a Software with more features than the replaced Software, SMARTSVN may charge an additional compensation.
7.11 The Customer must not assign the claims of defects to a third partysomeone else.
7.12 Product and other feature descriptions of SMARTSVN do not define quality or durability warranties in the meaning of §443 German BGB. The contractional parties agree, that a warranty statement in the meaning of §443 German BGB is only defined by using the word "Garantie" and in compliance with the formal regulations in §477.
8.1 SMARTSVN is liable to the Customer only for damages and vainly expenses,
8.1.1 if SMARTSVN, its legal representatives or its executing assistants caused damages by intent or gross negligence,
8.1.2 according to the German ProdHaftG and
8.1.3 for damages or injury of life, the body or health, which is caused by SMARTSVN, its legal representatives or its executing assistants.
8.2 SMARTSVN is only liable for plain negligence, if SMARTSVN has violated an important contractional duty. This liability is for material-damages and actual loss limited to the contract-typcial and predictable damage or loss. This applies also to loss of profit and stayed away savings. The liability for further consequential loss or damage is precluded. The liability according to section 8.1.2 remains untouched by this section.
8.3 For loss of data SMARTSVNs liability is limited to the expenses which would have been necessary for restoring the data from a proper (at least daily) done backup.
8.4 For a warranty statement SMARTSVN is only liable for damages, if this is explicitly mentioned in the warranty statement. This liability is covered by plain negligence by section 8.2.
9.1 Claims, except those from section 7, expire 3 years after gaining knowledge, however at the latest after 8 years after the latest agreed date of service delivery. This does not apply for intent or if the claim is covered by the German ProdHaftG.
10.1 The Customer is only entitled to withholding, if the demand is undisputed, having the force of law or is accepted by SMARTSVN. The Customer only is allowed to make use of his right of withholding for demands from the same contractional relationship.
10.2 Due to deficiencies payments only might be retained by the Customer, if the withholding is in a reasonable relation to the deficiency and only, if the deficiency is undoubtedly present. Section 7.1, sentence 1, applies accordingly.
11.1 For all legal relationships between the contractional parties the German law is applicable with the exclusion of the laws of international sale of movable goods.
11.2 If the Customer is a merchant, legal entity under public law or public legal fund assets, the exclusive court of jurisdiction for all disputes of this contract is SMARTSVNs principal office. The same applies if the Customer does not have a general court of jurisdiction in Germany or the Customers address or common whereabouts are unknown at the time of indictment. SMARTSVNs authority to take a different court remains untouched.
11.3 We are neither committed nor willing to participate in a dispute settlement proceeding at a consumer arbitration board.