- Scope of application
1.1. These General Business Terms and Conditions (hereinafter referred to as “GBTC”) are valid for all products and services (hereinafter referred to as “services”) provided and rendered by Schutz Marken Dienst GmbH and/or SMD Benelux B.V. or TMZOOM B.V. (hereinafter together referred to as “SMD”). These GBTC are in particular valid for all services rendered by SMD under the following signs: SMD Group, SMD International, SMD-Shop, SMD i-Search, SMD Cedelex, CEDELEX.COM, SMD Country Index, SMDNET, SMD Markeur, Markonet, Markencheck 24, Slogany, TMZOOM.
1.2 These GBTC are valid for all business relations between SMD and customers (hereinafter referred to as “customer”). These GBTC are only valid in case the customer is an undertaking (Section 14 German Civil Code, BGB), an entity under public law or separate funds under public law.
1.3. These GBTC apply in their current version as a framework agreement for future contracts for the provision of services with the same customer, without SMD in each individual case again having to refer to them; the customer will be informed immediately in case of modifications of these GBTC.
1.4. These GBTC apply exclusively. Differing, conflicting or additional terms and conditions of the customer shall only become part of the contract after SMD has agreed to their validity in writing. This requirement of approval applies in any case; for example, even if SMD provided services to the customer without reservation though in knowledge of the terms of the customer.
1.5. Individual agreements between SMD and the customer (including collateral agreements, supplements, and amendments) in any case take precedence over these GBTC. A written contract or written confirmation of SMD is authoritative for the content of such agreements.
1.6. Legally relevant declarations and notifications that are to be issued after conclusion of the contract by the customer against SMD (e.g. setting deadlines, notification of defects, notice of cancellation or reduction) shall be effective only in writing.
1.7. References to the application of statutory provisions are made for clarification purposes. Therefore, the statutory provisions apply even without such clarification, insofar as they are not directly modified in these GBTC or expressly excluded.
- Placing of orders
2.1. The offers of SMD are non-binding, without obligation and subject to confirmation. The commissioning of services (placing an order) by the customer is considered a binding contract offer. The commissioning can be made orally, in writing, by fax, e-mail, by SMD online order forms or via the SMD-Shop (www.smd-shop.com). Transmission errors and inconsistencies are to be borne by the customer. A contract between SMD and the customer shall not be deemed binding until SMD has confirmed to the customer that the latter’s order has been accepted (the order confirmation) or until fulfilment.
2.2. Orders that are placed via SMD online order forms must be confirmed manually by SMD and are not considered confirmed on the basis of automatically generated e-mails to the customer. Orders that were placed via SMD online order forms may be cancelled by the customer within one hour from the placing of the order (submitting the order form). After this time, SMD reserves the right to process the order at the expense of the customer to the conditions listed in the automatically generated e-mail.
- Contracting parties
Contracting party, i.e. customer, is solely the immediate authority commissioning the service, even if the order was placed on behalf of a third party. The duty of the customer to pay the invoice amount remains unaffected by the fact that the invoice is issued in the name of respectively made out to a third party.
4.1. SMD provides services in the field of intellectual property rights, in particular searching and watching services. SMD does not provide legal services, especially not legal advice.
4.2 The customer acknowledges and agrees that searching and watching services for industrial property rights are highly subjective. The customer further acknowledges and agrees that computer and telecommunications systems are not fault-free and that occasional failures occur. SMD cannot ensure that the services will be permanently uninterrupted, timely, secure or error-free.
4.3. SMD performs services solely according to the customer’s specifications. The customer is responsible for timely providing the information that SMD needs or reasonably requests for the implementation of the contract and for carrying out the service.
4.4. The customer shall have exclusive responsibility for the proper evaluation of the services of SMD, especially the search reports and watching results, and the information contained therein.
4.5. SMD does not warrant in any way that the services provided, and the information supplied are suitable for the specified purposes intended by the customer.
4.6. SMD does not warrant and is not responsible for completeness and accuracy of data which is used for SMD services and which is retrieved from various Patent, Trademark and Copyright Offices, their databases and publications, or other data sources of third parties, which are not subject to the sole control by SMD. This applies in particular to translations of goods and services.
4.7. SMD reserves the right to change, extend, limit or discontinue a service or parts thereof at any time.
4.8. SMD is entitled to transfer all or any part of the obligations and rights of a contract to one or more third parties or to assign the obligations and rights in a different way to third parties.
- Turnaround time
5.1. The generally published processing times, whether printed or electronic (for example, price lists or in the SMD-Shop), are not binding and may be changed by SMD at any time.
5.2. The processing time of the contracted service is determined according to the order confirmation. The processing time in the order confirmation may differ from the processing times generally published. The processing times specified in the order confirmation shall prevail.
5.3. The processing time is calculated according to working days, unless otherwise specified in the individual case. The processing time starts regularly with the working day following the date of placing the order, provided that the order is placed on a working day until 4 p.m. CET
5.4. Upon the occurrence of force majeure, labour disputes or operational disruptions not directly attributable to SMD, the processing time may be longer. National and international legal holidays and changes in opening times of trademark and patent offices may also lead to an extension of the processing time. In these cases, SMD will notify the customer immediately.
5.5. Should SMD default on a delivery or performance of a service due, the customer shall be entitled to withdraw from the contract only after the customer has set SMD a reasonable period to perform. Section 10 of these GBTC applies to customer’s compensation claims.
6.1. The generally published prices, whether printed or electronic (for example, price lists or in the SMD-Shop), are not binding and may be changed by SMD at any time.
6.2. The price of the contracted service is determined according to the order confirmation. The price in the order confirmation may differ from the prices generally published. The prices specified in the order confirmation shall prevail.
6.3. Unless expressly provided for otherwise, all prices are quoted in Euro excluding value added tax and transfer costs or other expenses (e.g. postage, bank transfer fee).
7.1. Invoices are usually issued upon completion of an order. Invoices are sent by ordinary mail or by email as PDF documents.
7.2. Invoices are payable without deduction within 14 days of issue date, unless provided for otherwise.
7.3. Invoices for customers abroad either include a nominal fee for bank transfer cost or are net and have to be settled free of all deductions.
7.4. SMD reserves the right to suspend all services ordered by the customer in the event of payment delays relating to a service ordered by the customer until payment is received in SMD. The objection of uncertainty in accordance with § 321 German Civil Code (BGB), in particular, remains unaffected.
8.1. Notwithstanding any other termination of their rights either party may terminate the contract for cause in writing. Good cause exists in particular if the customer is in default of payment of an invoice due and does not pay after a reasonable extension of time or the customer comes into financial collapse after the contract has been concluded, unless application for the opening of insolvency proceedings has been filed. Good cause also occurs in the person of SMD if a third party that is SMD’s competitor acquires control over the customer. A good cause lies in the person of SMD also if the customer violates intellectual property rights of SMD.
8.2. Watching services for trademarks protected in Germany (national watching services) can be terminated at the end of each quarter upon 2 weeks written notice.
8.3. Termination of watching services outside Germany (international watching services) shall be notified in writing at the latest by October 15th of a year.
8.4. Termination of SMD Cedelex subscriptions shall be notified in writing at the latest by September 30th of a year.
8.5. In the absence of written termination, watching services as well as SMD Cedelex subscriptions will be automatically prolonged for another year.
8.6. For the rest, for the term for services that are commissioned for a certain minimum duration, each prolong by one year after the expiry of the minimum term, if they are not cancelled in writing with 30 days’ notice before the end of the relevant period.
9.1. The liability of SMD for material and legal defects is governed by the statutory provisions, if not provided for otherwise herein. The provisions of Section 10 of these GBTC apply to warranty claims of the customer, which are directed to damages or the reimbursement of wasted expenditure.
9.2. SMD will use commercially reasonable efforts to perform the services in accordance with applicable industry standards. SMD performs services using personnel with appropriate qualifications and expertise.
9.3. SMD will use commercially reasonable efforts to improve the service or to render the service again, provided that the customer notifies SMD in writing within 30 days upon receipt of the service that SMD has not complied with Section 9.2.
9.4. The warranty period is limited to one year from receipt of the service. This does not apply if and to the extent that SMD has fraudulently concealed a defect. This also does not apply to claims for damages or reimbursement of expenses pursuant to Section 10 of these GBTC or recourse claims pursuant to §§ 478, 479 BGB and not in the case of § 438 paragraph 1 no. 2 BGB and § 438 paragraph 1 no. 1 lit. a BGB.
10.1. SMD assumes liability for intent, gross negligence, and in the case of the assumption of a guarantee. In the event of minor negligence SMD only assumes liability for damages caused by material breach of duty jeopardizing the purpose of the contract, or for breach of duty the performance of which is a prerequisite for proper performance of the contract.
10.2. The limitation of liability according to Section 10.1 also extends to claims for damages arising due to fault on the conclusion of a contract and can therefore be accompanied by the renunciation of claims already arisen.
10.3. The limitation of liability according to Section 10.1 also extends to damages caused by a legal representative or agent of SMD.
10.4. The liability for minor liability is further limited to damage foreseeable and typically occurring under the type of contract. This is also the case in the event of gross negligence of a vicarious agent (“einfache Erfüllungsgehilfen”, thus not a legal representative or senior employee).
10.5. In cases foreseen in Section 10.4 SMD’s liability for damages in property shall be limited to an amount which shall under no circumstances exceed the amount of five times the net price of the order per damaging event.
10.6. In cases foreseen in Section 10.4 SMD shall not be liable for consequential damages, such as, in particular, loss of profit or business disruption.
10.7. Sections 10.1 – 10.6 do not provide for a reversal of the burden of proof to the detriment of SMD.
10.8. Except in the event of liability according to the Product Liability Act (Produkthaftungsgesetz), loss of life, injury to body or mind, defects arising after assumption of a quality guarantee, or in the event of maliciously concealed errors, the above limitations shall be valid for all damages claims irrespective of their legal justification.
10.9. The above limitations of liability extend to employees and agents (“Beauftragte”) of SMD.
10.10. SMD does not assume any responsibility for any damages arising from the further processing of the information supplied by SMD to the customer.
- Services with the participation of third parties (in particular i-Search)
11.1. In case of services that are provided with the participation of third parties and in the event and to the extent that the customer is entitled to claims against the third party, regardless of claims against SMD, the customer is first required to assert his claims against the third party. Until this is done, SMD may refuse to credit the warranty claims of the customer. The customer is not obliged to take legal action against the third party.
11.2. Legal assessments as part of the service SMD i-Search are provided by independent external law firms and legal professionals as third parties and are based on the experience and knowledge of the respective author. The customer authorizes SMD by commissioning an i-Search service to liaise with these third parties and to exchange information in order to obtain the legal assessment from the external law firms and legal professionals for the customer. SMD only forwards the legal evaluations of these third parties to the customer. The responsibility of SMD is limited to carefully select these third parties and to conscientiously pass on the necessary information for assessment to these third parties. The legal assessment is subject to the liability provisions of the respective external law firms and legal professionals.
- Transfer of rights
The customer is not entitled, without the permission of SMD, to transfer any or all rights arising out of his agreement with SMD to third parties. Counterclaims can only be instituted, and payments be retained in instances where claims against SMD are undisputed or subject of final judicial decision.
- Intellectual property
13.1. All rights to information and services are reserved.
13.2. All services are rendered only for the customer’s own use, respectively for the use of the customer’s own client.
13.3. If the customer acts for a third party, the customer is entitled to transmit the data once and to this client only. Duplication, circulation, and reproduction for commercial purposes are prohibited. In particular, the customer is bound not to use the information obtained from SMD in relation to services competing with those of SMD.
13.4. If the customer is an intermediary, the customer is bound to impose these obligations on third parties. The customer undertakes to indemnify SMD against any liability resulting from the customer’s failure to observe these obligations.
- Data protection and confidentiality
14.1. Pursuant to § 33 I of the Federal Law for Data Protection (Bundesdatenschutzgesetz), SMD confirms that all customer data will be stored electronically and processed within the limitations of the contractual terms entered into with the customer.
14.2. All customer enquiries, customer orders and customer profiles are treated confidentially. The customer acknowledges and agrees that SMD discloses confidential information to the managing directors of SMD, officers, employees, suppliers, contractors or agents that are bound to confidentiality obligations and in respect of which the disclosure is necessary for SMD to perform and exert SMD’s obligations and rights under the contract.
- Place of performance and jurisdiction
15.1. The place of performance for services rendered by Schutz Marken Dienst GmbH is Ahrensburg. The laws of Germany shall be the exclusive legal basis for the relationship with the customer. The application of international uniform law, in particular, the reference standards and the UN Sales Convention (CISG) is excluded.
15.2. The legal venue for all lawsuits arising from this agreement between Schutz Marken Dienst GmbH and general merchants as well as persons who have changed their residence or usual place of abode out of the jurisdiction of the Code of Civil Procedure, shall be Hamburg.
15.3. The place of performance for services rendered by SMD Benelux B.V. or by TMZOOM B.V. is Amersfoort. The laws of The Netherlands shall be the exclusive legal basis for the relationship with the customer. The application of international uniform law, in particular the reference standards and the UN Sales Convention (CISG) is excluded.
15.4. The legal venue for all lawsuits arising from this agreement between SMD Benelux B.V. and general merchants as well as persons who have changed their residence or usual place of abode out of the jurisdiction of the Dutch Civil Code (Burgerlijk Wetboek) shall be Utrecht.
16.1. A written agreement shall be required to prove the content of changes, additions, and ancillary to the contract. The same applies to the evidence of an agreement amending sentence 1 herein. Contradictory General Terms and Conditions and declarations of the customer will only apply by express written agreement.
16.2. Should any provisions of these GBTC be found in whole or partially invalid or unenforceable, then the validity of the remaining provisions shall not be affected. A resulting gap is to be closed according to the intention and purpose of the contract and these provisions.
Status April 2022