General Terms and Conditions (GTC)
1. Scope of application
1.1These General Terms and Conditions (hereinafter "GTC") apply to all products and services (hereinafter "Services") provided by Schutz Marken Dienst GmbH and/or SMD Benelux B.V. (hereinafter collectively "SMD"). In particular, these GTC apply to the Services provided by SMD under the following marks: SMD Group, SMD International, SMD-Shop, SMD i-Search, SMD Cedelex, SMD Country Index, SMDNET, SMD-Markeur, Markonet, Markencheck 24, Slogany, TMZOOM.
1.2These GTC apply exclusively to entrepreneurs (Section 14 of the German Civil Code, BGB), legal entities under public law and special funds under public law.
1.3These GTC apply in their respective current version as a framework agreement also to future contracts; the Client will be informed without undue delay of any changes to the GTC.
1.4Deviating terms and conditions of the Client only become part of the contract if SMD has expressly consented to their application in text form.
1.5Individual agreements take precedence over these GTC.
1.6Any notices or other declarations of legal relevance must be made in text form.
1.7Statutory provisions apply supplementally.
2. Placing of orders
2.1Offers made by SMD may be subject to change and until confirmed are non-binding. The placing of an order constitutes a binding contractual offer. The contract is concluded upon order confirmation or actual performance of the Services.
2.2Automated confirmations do not constitute acceptance. Online orders may be cancelled within one hour.
3. Contracting party
The contracting party is exclusively the respective client placing the order. The obligation to pay remains unaffected by any invoicing to third parties.
4. Services
4.1SMD provides services in the field of industrial property rights, in particular search and watch services. Legal advice is not owed.
4.2Search and watch services, by their nature, cannot guarantee complete accuracy or completeness; no specific search result is owed.
4.3Services are performed on the basis of the information provided by the Client.
4.4The evaluation of the results is the sole responsibility of the Client.
4.5The suitability of the Services for a specific purpose of the Client not expressly confirmed by SMD in text form is not owed.
4.6SMD assumes no warranty for the completeness and accuracy of data from third-party sources not under SMD’s control, in particular from the registers and publications of the trademark and patent offices.
4.7SMD is entitled to further develop or adapt the services.
4.8SMD may engage third parties to perform the Services.
4.9A trademark watch commences on the start date confirmed in the order confirmation. There is no entitlement to retroactive trademark watching.
4.10Upon termination of a trademark watch, the Client only receives such watch notices that were received in SMD’s systems and reviewed by SMD before the termination took effect; publications received thereafter are no longer be reviewed or transmitted.
5. Turnaround times
5.1Published turnaround times are non-binding.
5.2The turnaround time stated in the order confirmation prevails.
5.3Turnaround times are calculated in business days.
5.4Force majeure may result in delays.
5.5Withdrawal from the contract due to services not performed on time requires that the Client has previously granted SMD a reasonable grace period without success.
6. Prices
6.16.1. 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.
6.2The prices stated in the order confirmation prevail.
6.3Prices are exclusive of VAT and incidental costs.
7. Payment
7.1Invoices are issued after performance of the Services. For term-based Services, in particular watch services for industrial property rights as well as SMD Cedelex or TMZOOM subscriptions, invoices are issued in advance for the agreed term.
7.2Invoices are payable within twenty-one (21) days without deduction.
7.3Clients abroad bear any bank charges.
7.4In the event of payment default, SMD is entitled to suspend the services after prior notice and a reasonable grace period.
8. Termination
8.1The right to terminate for good cause remains unaffected.
8.2Watch services as well as SMD Cedelex or TMZOOM subscriptions are concluded with a minimum term of twelve (12) months.
8.3If no timely termination is given, the term of watch services and subscriptions is automatically extended by a further twelve (12) months in each case.
8.4Watch services may be terminated in text form with one (1) month’s notice to the end of the respective term (renewal date).
8.5Subscriptions not concluded online may likewise be terminated in text form with one (1) month’s notice to the end of the respective term.
8.6Lean System (in accordance with the current price list): In the event of early termination during the current contract term, no credit is granted for fees already paid.
8.7Flex Upgrade (in accordance with the current price list): Early termination of individual trademark watches during the current contract term is possible. An entitlement to a credit exists exclusively in accordance with Sections 8.8 to 8.12 below.
8.8Credits are calculated no earlier than from the first day of the following quarter. Retroactive credits are excluded.
8.9For a credit to be taken into account for the following quarter, the termination notice must be received by SMD no later than the 15th day of the last month of the current quarter.
8.10Credits are granted on a pro-rata quarterly basis.
8.11Credits are granted only until the beginning of the last quarter of the respective contract term. From the beginning of the last quarter of the term, credits are excluded.
8.12No entitlement to a credit exists if the terminated watch services account for more than 30% of the value of the Client’s watch portfolio (sum of the annual fees, determined as at the time of the first termination). In this case, the affected watch services end only at the end of the respective term in accordance with Section 8.4. Deviating agreements are reserved.
9. Warranty
9.1Statutory provisions apply unless otherwise provided below.
9.2SMD performs the Services in accordance with industry standards.
9.3Obvious defects must be notified in text form within thirty (30) days of transmission of the results.
9.4The limitation period for defect claims is one (1) year from the statutory commencement of the limitation period. This does not apply in the cases described in Sections 10.1 and 10.7, or where the law mandatorily provides for longer periods.
10. Liability
10.1SMD is liable without limitation for intent and gross negligence.
10.2In cases of slight negligence, SMD is liable only for the breach of material contractual obligations (cardinal obligations), such as obligations whose fulfilment is essential to the proper performance of the contract and on whose observance the Client may regularly rely.
10.3In the cases described in Section 10.2, liability is limited to the foreseeable damage typical for this type of contract.
10.4In the cases described in Section 10.2, SMD’s liability for financial and property damage is limited to five times the net invoice amount per event of damage.
10.5In the cases described in Section 10.2, liability for lost profits is excluded.
10.6The foregoing provisions do not entail any change to the burden of proof to the detriment of the Client.
10.7The foregoing limitations of liability do not apply to injury to life, body or health, to claims under the German Product Liability Act (Produkthaftungsgesetz), or in the case of the assumption of a guarantee.
11. Services involving third parties
11.1Claims against third parties must be pursued with priority.
11.2Legal assessments within the scope of i-Search are provided by external law firms.
12. Transfer of rights
Any transfer of rights requires SMD’s consent.
13. Intellectual property
13.1All rights remain with SMD.
13.2The Client may use the deliverables for its own purposes. Where the Client acts as a law firm or other representative on behalf of a third party, it may pass the deliverables on to the respective client or principal for whom the services were commissioned.
13.3Any further disclosure to third parties or other exploitation is not permitted without SMD’s prior consent in text form.
13.4Without a separate agreement with SMD in text form, the Client is not entitled to (i) process the data, content and deliverables provided by SMD by means of artificial intelligence technologies, in particular for the training, fine-tuning or enrichment of AI models, machine learning, algorithms or language models, (ii) use them for text and data mining, or (iii) use them for the automated generation of content of any kind. The Client shall further not use the data and deliverables to create derivative databases, works or products that compete with SMD’s Services. SMD hereby expressly declares a reservation of use within the meaning of Section 44b (3) of the German Copyright Act (UrhG).
14. Confidentiality
14.1The parties shall use confidential information of the respective other party exclusively for the performance of the contract and shall protect it against unauthorized access by appropriate measures.
14.2Confidential information means all information designated as confidential as well as information whose confidential nature is evident from the circumstances, in particular agreed prices and information regarding the structure and functioning of the Services. Information that is publicly known, or that becomes known without breach of a confidentiality obligation, is not covered.
14.3Disclosure is permitted to the extent required by law or by order of a public authority, or to the extent necessary vis-à-vis third parties engaged in the performance of the services (Section 4.8). The other party must be informed of any disclosure required by law or public authority, to the extent legally permissible.
14.4The confidentiality obligations apply for the duration of the contract and for a period of three (3) years after its termination.
15. Data protection
Processing is carried out in accordance with the GDPR. Details are set out in the privacy notice.
16. Erfüllungsort und Gerichtsstand
16.1For Schutz Marken Dienst GmbH, German law applies; the place of jurisdiction is Hamburg.
16.2For SMD Benelux B.V., Dutch law applies; the place of jurisdiction is Utrecht.
17. Final provisions
17.1Amendments require text form.
17.2Invalid clauses do not affect the validity of the remaining provisions.