Terms & Conditions
Smart Motion Services is a brand of Portlab e.K.
The following Terms and Conditions (TNC) apply for all contracts, agreements, offerings and other legally binding documents by the Smart Motion Services c/o Portlab e.K., hereafter referred as „SMS“ with their respective contract partner, hereafter referred as the „Client“.
1. Scope of Applicability
1.1. These General Terms and Conditions (“TNC”) apply to all sales of services by us
notwithstanding any conflicting, contrary or additional terms and conditions in any
purchase order or other communication from the Client. No such conflicting, contrary or
additional terms and conditions shall be deemed accepted by SMS unless with an
express written confirmation.
1.2. The TNC also apply in case SMS provides services with the awareness any apparent TNC by the client without reserve.
1.3. In case of any follow-up orders by the Client, SMS is not obliged to refer to the TNC.
2. Offers, Purchase Orders and Order Confirmations
2.1. All offers made by SMS are open for acceptance within fourteen calendar days from
the date of issue, unless otherwise specifically stated therein, and are subject to the
availability of the services offered.
2.2. All purchase orders issued by the Client shall specify as a minimum the type and
quantity of services requested, delivery place and requested delivery dates. No
purchase order shall be binding on us unless and until confirmed by us in writing. The agreed upon offerings and the project-agreement shall only be effective by the written confirmation of SMS.
2.3. All project-specific agreements SMS makes with the Client shall be in writing.
Changes, additions and verbal agreements require an express written confirmation to be applicable. Agents and employees are not permitted to give verbal agreements or approvals that exceeds the scope of the current written agreement.
2.4. If necessary and agreed upon between both parties, SMS devises a strategic sales –
and marketing-roadmap, for a reasonable up-charge. The aforementioned Roadmap
shall be treated as confidential. The Client and his associates are not permitted to
utilize the strategic roadmap outside of the order or project of SMS for themself or by claim of a competitive agency or to pass it on to third parties. SMS reserves the right to claim a contractual-fine of 1200,00€EUR or 1/5th of the order value, to
the exclusion of the plea of connection with any previous act of contravention.
2.5. If necessary and agreed upon between both parties, SMS presents the in 2.4.
mentioned Strategic Roadmap for a reasonable and before agreed up-charge.
3. Services
3.1. The scope of services provided by SMS depends on the offering by SMS, the order notice by the Client and the briefing by the Client. If such briefing by the Client is not existent or deviant from SMS’s performance specifications, a contact report shall serve as the binding content of the contract, which will be provided shortly to the Client. The Client has 5 labor days to counter the provided contact report as the
agreement.
3.2. SMS reserves the right to hire third parties to help with the provision of the services. SMS has no liability, when hiring third parties by the Client’s request.
3.3. SMS is authorized to partial services
4. Prices and Terms of Payment
4.1. The prices for services shall be those set forth in the order confirmation or agreement for the parties. The agreed prices include all positions, which are subject to the in 3.1 mentioned scope of services. Any additional services or expenses, especially for acquisition of third-party rights, fair use of copyright and/or trademark protected materials and properties or other federal duties (e.g., for artists-social-security-fees) will be added as an up-charge to the total price. Tolls, shipping, handling and miscellaneous project-related operational costs, in pursuit of the agreed provision of services will also be added as an up-charge on top of the agreed total prices. Unless otherwise agreed, expenses in travel, accommodation, catering in connection with the provision of the services will be put on top of the total prices as an up-charge as well. All prices are exclusive of taxes, impositions and other charges, including, but not limited to, sales, use, excise, value-added and similar taxes or charges imposed by any government authority.
4.2. If the provision of the agreed services takes extensive time and/or entails additional external costs, SMS may charge these costs as payments on account, on top of the already provided partial services.
4.3. The partial services, especially all operative services such as handling,
communications and other internal work processes do not have to come as directly
useful to the Client and can serve as a sole foundation of work on behalf of SMS. The
partial compensation will be settled differently for each client and each project.
4.4. Unless expressly stated otherwise in our order confirmation, payment for goods shall be made via Bank transfer (or other electronic transfer solutions like Paypal or
ApplePay), without offset or deduction.
4.5. The Client may not claim early payment discount, without a before formally written approval of such by SMS.
4.6. SMS reserves the right to charge corporate clients in advance, especially if the order value exceeds 500€EUR. We furthermore may charge advance payments, in case of prospected or occurred events, which may potentially appear to impair the Clients fulfillment of duties. SMS may withdraw from or terminate the agreement if the due advance payments have not been paid within a week.
4.7. The monthly bills for recurring and ongoing provision of services in a continuing
obligation may be increased by SMS without the Client’s approval with appropriate
measures by up to 15%. SMS however may initiate the increase of prices four months after the start of the project. The increase of the monthly fees will be effective as the new agreed monthly fee for the future of the project. The price increase will only be effective after both parties agreed upon the aforementioned increase four months before. The increased prices shall help SMS to cover increased costs inside of the company. The Client shall bear the burden of proving, that SMS’s price increase did not serve that particular purpose.
4.8. If the Client fails to pay any invoice within fourteen calendar days of the due date of payment, we may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination to the Client
within seven calendar days of the expiration of the grace period. Further, SMS may
charge the Client interest from the due date to the date of payment at the rate of 20% per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which we are or may be entitled at law or in equity.
4.9. In case of cancellation of the project or parts of the project, after the confirmed
offering, order and/or agreement SMS is entitled to the part of the price agreed upon
in the offering by SMS, that is proportionate to the stage of completion of the
services. The Client shall cover all external costs, that may occur during the provision of the services and absolves SMS of all liabilities for third-party claims and duties.
5. Intellectual Property Rights Infringement
5.1. If any services delivered hereunder are held to infringe a third party’s patent, utility model, design, trademark or other intellectual property right and the Client is enjoined from using same, SMS will, at their option and expense,
(a) procure for the Client the right to continue using the goods.
(b) replace the goods with non-infringing substitutes provided that such
substitutes do not entail a material diminution in performance or function.
(c) modify the goods to make them non-infringing.
5.2. With the agreed price, the customer purchases the rights of use for all working
physical and digitally created files and documents incl. case-studies, market research, statistics, concepts, design- and solution packages and licenses e.g., Photographs. The transfer of usage rights is in effective within the of possibility in, accordance to international law for the international use. Usages beyond the accepted scope require an approval within the agreement or in a written separate, special notice. Usage rights which have not been paid for at a time after the completion or termination of the project remain in the possession of SMS, unless otherwise agreed.
5.3. All the preliminary work and the results of work conducted by SMS shall be treated as subject to copyright protection in accordance with UrhG, even if the requisite threshold of originality is not achieved in each individual case.
5.4. Neither the Client nor third parties contracted by the Client may change the original or the reproduced, conducted work by SMS. Every imitation, also in shares of the complete works, is inadmissible and will be sanctioned with the doubled amount of the agreed project-price.
5.5. The transfer of usage rights to third parties and/or multiple use are subjected to
payment, unless otherwise stipulated in the agreement.
5.6. SMS may request detailed information about the scope of use of generated by SMS.
6. Intellectual Property Rights Infringement
6.1. SMS shall not be liable for, indirect, special, incidental, consequential or punitive
damages of any nature, including, but not limited to, business interruption costs, loss
of profit, removal and/or reinstallation costs, re-procurement costs, loss of data, injury to reputation or loss of customers. The Client’s recovery from SMS for any claim shall not exceed the purchase price for the project giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise. SMS is only liable for those damages caused in deliberation or grossly negligent directly by SMS or their employees and hired subcontractors.
6.2. SMS shall not be liable for any claims based on their compliance with the Client’s designs, specifications or instructions or repair, modification or alteration of any goods by parties other than us or use in combination with other goods.
6.3. SMS is not liable for damages of operational interruptions or limitations on behalf of the Clients of SMS, unless the interference was caused based on deliberate
operations or by gross negligence on behalf of SMS. Limitations in connection with
repairing broken and/or flawed operating material or removing disruptive elements,
that preexisted or occur during the course of the services shall not be considered as
culpable interferences on behalf of SMS.
6.4. The Client carries the rest of legal legitimacy of all measures and procedures carried out by SMS, especially in cases of violations against laws of competition, copyrights and special laws of advertising. The Client absolves SMS of all liabilities for third party claims and duties, when SMS acted according to the express request and approval by the Client, despite sharing concerns of legal legitimacy with the Client. The expression of such concerns on behalf of SMS to the Client shall occur immediately after the knowledge via writing. If SMS considers, that the in the intended actions should go through a competitive assessment with a qualified specialist or institution, the Client shall coverall expenses, unless otherwise agreed.
6.5. SMS will not be liable for statements and objective messages about products and services included in the Client’s advertisements. SMS will also not be liable for the protection and/or registration of patents, copyrights, brands and trademarks of
exchanged ideas, inspirations, suggestions, concepts and drafts, during the course of the project.
6.6. SMS is not liable for any consequential damages, if and to the extent of the liability not being a result of any violation of agreed project terms and conditions.
6.7. SMS’s payment request and thus the burden of the the agreed payment remains on the Client, as long as the execution of communication actions becomes limited or
even impossible, due to third party interference, Force Majeure or other reasons (like
vehicle damages, Accidents, Illness with a doctor’s report of proof, etc.) outside of
SMS’s responsibility.
7. Force Majeure
Either party shall be excused from any delay or failure in performance if caused by
reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, pandemics (or epidemics),
explosions or other acts of nature. The obligations and rights of the party so excused
shall be extended on a day-to-day basis for the time period equal to the period of
such excusable interruption. When such events have abated, the parties’ respective
obligations shall resume. In the event the interruption of the excused party’s
obligations continues for a period in excess of thirty calendar days, either party shall
have the right to terminate the applicable contract(s) of sale, without liability, upon
thirty calendar days’ prior written notice to the other party.
8. Miscellaneous
8.1. The United Nations Convention for the International Sale of Goods shall not apply to these TNC or to any contracts of sale entered into between the parties.
8.2. The Client is not permitted to transfer individual claims from the agreements.
8.3. With counterclaims a setoff or the assertion of the right of retention against by the Client are only valid, if the counterclaims are ascertained as indisputable or legally binding.
8.4. The Client must re-submit all information, including financial information by the
reasonable request of SMS for the establishment or continuation of payment terms.
Monthly fees for ongoing sales of services may be once in a year, increased by 15%
without notice towards the Client and confirmation by the Client.
8.5. No waiver of any provision of these TNC shall constitute a waiver of any other
provision(s) or of the same provision on another occasion. Failure of either party to
enforce any provision of these TNC shall not constitute a waiver of such provision or
any other provision(s) of these TNC.
8.6. Should any provision of these TNC be held by a court of jurisdiction to be illegal,
invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these TNC shall remain in full force and effect and shall be construed in accordance with the modified provision.
8.7. These TNC and all contracts of sale entered into between the parties shall be
governed by and construed in accordance with the laws of Frankfurt am Main,
Germany without giving effect to any choice of law or conflict of law provisions. Any
suits, actions or proceedings that may be instituted by either party against the other
shall be instituted exclusively before the competent courts of Germany, however,
without prejudice to SMS’s right to bring suits, actions or proceedings in any other
court which would have jurisdiction if this provision had not been incorporated into
these TNC.
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