Angaben gemäß TMG:
Smart Contact GmbH
Niederurseler Alle 8-10
Telefon: +49 (0) 69 7167667
Umsatzsteuer-Identifikationsnummer gem. §27 a Umsatzsteuergesetz: DE 309 257 506
Disclaimer: Liability for Content: We make every effort to keep the information on our Web site current, but accept no liability whatsoever for the content provided. Pursuant to par. 1 of TMG (German Tele-Media Act), the law limits our responsibility as a service provider to our own content on these Web pages. According to §§º8 to 10 of TMG, we are not obligated to monitor third party information provided or stored on our Web site. However, we shall promptly remove any content upon becoming aware that it violates the law. Our liability in such an instance shall commence at the time we become aware of the respective violation. Liability for Links: Our site contains links to third-party Web sites. We have no influence whatsoever on the information on these Web sites and accept no guaranty for its correctness. The content of such third-party sites is the responsibility of the respective owners/providers. At the time third-party Web sites were linked to ours, we found NO GROUNDS WHATSOEVER of any likely contravention of the law. We shall promptly delete a link upon becoming aware that it violates the law. Copyrights: The content and works provided on these Web pages are governed by the copyright laws of Germany. Duplication, processing, distribution or any form of commercialization of such material beyond the scope of the copyright law shall require the prior written consent of its respective author or creator. Data Protection: Please be aware that there are inherent security risks in transmitting data, such as e-mails, via the Internet, because it is impossible to safeguard completely against unauthorized access by third parties. Nevertheless, we shall safeguard your data, subject to this limitation. In particular, personal information will be transmitted via the Internet only if it does not infringe upon third-party rights unless the respective party has given its prior consent in view of such security risks. Accordingly, as the Web site provider, we shall not be held liable for any damages incurred as a consequence of such security risks or for any related acts of omission on our part. We oppose the use of any available contact information by a third party for sending unsolicited advertisements. As the Web site provider, we reserve the express right to take legal action against unsolicited mailing or e-mailing of spam and other similar advertising materials. Quellen: Rechtsanwälte Streifler & Kollegen; twigs translations.
Section 1 Scope of Application
(1) The use of the “Smart Contact Software” (the „Services“) provided by Smart Contact GmbH („Smart Contact”) is governed solely by the following General Terms and Conditions of Use (the “GTC”), irrespective of the medium (mobile device, desktop, or API) used to access the Service. This GTC form an integral part of all contracts and agreements concluded between Smart Contact and the final user (each a “Customer” and collectively the “Customers”) regarding the use of the Services, regardless of whether the Customer has or hasn’t set up an account for the use of the Services; they are also valid for any future use of the Services by the Customer even if not separately agreed upon again.
(2) Terms and conditions of business of the Customer or of third parties shall be excluded even if not expressly objected to by Smart Contact in an individual case. Even in the case of Smart Contact making reference to a letter or e-mail including the Customer´s or third-parties’ terms and conditions of business, this may not be construed as agreeing with such terms and conditions of business.
(3) Smart Contact reserves the right to modify the GTC as required. However, modifications of these GTC shall only enter into effect with regard to the individual Customer if and insofar as the Customer
- a) has been informed of such modifications in writing (e-mail, in-App notification, or notification on the Website shall suffice) by including the modified GTC and highlighting the changes (the “Change Notice”);
- b) has not objected in writing (e-mail shall suffice) to the changes within a period of one (1) month following the receipt of the Change Notice and the modified GTC; and
- c) has been informed in writing (e-mail, in-App notification, or notification on the Website shall suffice) at the time of presenting the Change Notice that his/her/its right of objection expires with the expiry of the deadline and that his/her/its failure to object is construed as tacit consent to the changed GTC.
(4) Smart Contact reserves the right to set up additional conditions of use for the intended use of specific content, functions and/or services (together referred to as “Additional Services”) or specific arrangements (the “Premium Services”) by a Customer. Such additional conditions of use shall be made available to the Customers prior to the initial use of Additional Services or Premium Services. They shall only be valid if the Customer has gained or been able to gain knowledge of the additional conditions of use and if the additional conditions of use have been accepted by the Customer. In case of any discrepancies between the provisions of such additional conditions and these GTC, the provisions of such additional conditions shall prevail. If a Customer does not agree with or accept the additional conditions of use, Smart Contact shall have the right to refuse to provide the use of such Additional Services and/or Premium Services to the Customer.
Section 2 Registration and Contract Conclusion
(1) To be able to use the Services, the Customer must first create an account (the “Customer Account”). This involves the registration of the Customer via the www.mysmartcontact.com website (the „Website“) or via the corresponding application for mobile end devices (e.g. smartphone, tablet) (the „App“). Registration is free of charge and non-binding for the Customer, however, Smart Contact reserves the right to charge a fee for the provision of Additional Servcies or Premium Services, subject to the Customer’s prior acceptance of the applicable additional conditions of use for such Additional Services or Premium Services, as the case may be. By registering for the Service, the Customer submits an offer to Smart Contact to conclude a contract for the use of the Services.
1. (2) By registering for the Services, the Customer submits an offer to Smart Contact to conclude a contract for the use of the Services. In submitting to the Customer either a confirmation code on his cell phone (in case of a registration with his/her cell phone number) via sms or to his/her/its e-mail address (in case of a registration with his/her/its e-mail account) via e-mail, and granting the Customer access to the Services, Smart Contact accepts such an offer in application of sec. 151 of the German Civil Code (acceptance without declaration to the offeror), and a user agreement to which this GTC form an integral part to, is entered into by and between Smart Contact and the Customer (each a „Contracting Party“ and collectively the „Contracting Parties“
(3) When registering for the creation of a Customer Account and the use of the Services, the Customer may either provide his/her/its personal data, including his/her/its current phone number and/or e-mail address and create a password (the “Personal Account”), or logs in via his/her/its current and valid Google account (the “Google Account”) or Facebook account (the “Facebook Account”).
(4) The Customer hereby expressly consents that Smart Contact may
- a) access the Customer´s Google Account data or Facebook Account data, as the case may be, consisting, inter alia, of (i) Customer profile data, (ii) e-mail address(es) entered by the Customer in Google or Facebook, (iii) Customer’s contacts and (iv) Customer´s personal contact information (jointly referred to as “Account Data”);
- b) use the Account Data for creating the Customer Account and executing the provision of the Services; or
- c) contact the Customer via text messages, e-mails, or phone calls with codes to complete the registration for accessing the Services.
(5) By creating a Personal Account or by granting access to the Customer’s Google Account or Facebook Account, as the case may be, the Customer hereby warrants that the personal data and/or Account Data are true, accurate and complete. Furthermore, the Customer warrants that he/she/it is authorized to grant access to the Customer’s contact data (such as phone numbers, e-mails, or addresses, jointly the “Contact Data”), accessible either through his/her/its address book of his/her/its mobile device or his/her/its Google Account or Facebook Account, as the case may be. Notwithstanding the provision of Services, Smart Contact is expressly not obliged to verify the data used by the Customer in creating his/her/its Personal Account, the Account Data or the Contact Data for correctness, accuracy and completeness. More information on the scope and kind of personal data, Account Data and Contact Data collected as well as the use, processing, and sharing thereof by Smart Contact is provided and accessible under www.mysmartcontact.com/privacy.
(7) The use of the Services by Customers who are not of legal age or not fully legally competent according to the laws of their country of residence or of the country where they usually reside, is not permitted. By clicking on the activation link, the Customer confirms (i) that he/she is of legal age and fully legally competent and that he/she complies with all required factual as well as legal prerequisites to be able to conclude an effective agreement for the use of the Services provided by Smart Contact, and agrees (ii) to observe and comply with all regulations of these GTC.
(8) Smart Contact warrants that it will comply with all applicable statutory provisions at the place of business of Smart Contact, in particular with the relevant provisions of the European General Data Protection Regulation, German Federal Data Protection Act, the corresponding data protection laws of the German Federal States as well as the German Telecommunication Act and the German Telemedia Act.
Section 3 Scope of Services
(1) Smart Contact offers the Customers the option to use the Services as web application via its Website, as desktop application, or as App.
(2) The Services do not provide access to emergency services or emergency service providers, such as the police, fire departments, or hospitals.
(3) The Services consist of an App where the Customer can register and create his/her/its own profile to connect with other users of the Services (each referred to as „User“), to establish a network or to expand an existing network, to share Account Data and/or Contact Data, to scan and create digital business cards, to manage his/her/its personal address book, to create and manage different contact groups, to scan physical business cards, to monitor his/her/its Customer Account, or to post information related to personal and/or business affairs. Parts of the Services are also manageable through an online portal. The Customer herewith expressly consents to the use of third-party communication providers by Smart Contact with regard to the messenger function (the “Messenger Function”) provided by the Services.
(4) Smart Contact reserves the right to modify or temporarily or permanently discontinue the provision of its Services (or parts thereof) at any time and without prior notice to the Customer. Any liability by Smart Contact due to the modification or temporary or permanent modification or discontinuation of the Services provided to the Customer or other third parties is explicitly excluded.
Section 4 Use of the Services
(1) Access to the Services by the Customer and/or the use of the Services requires a user login (Customer´s e-mail address) and is password-protected via remote data transmission.
(2) The Customer is not permitted to use the Services or content obtainable from or accessible through the Services (especially, but not limited to: User-Content, designs, texts, charts, images, video recordings, information, logos, software, audio files or computer codes) for commercial purposes, especially for the purpose of selling own products and/or services without a separate contract. A commercial use within the meaning of these GTC does not apply if the Customer is using the Services to expand his/her/its business network or to increase his/her/its own recognition or if the use of the Services by the Customer serves to prepare a commercial activity between the Customer and one or several Users.
(3) The Customer is aware of and consents to the fact that the technical and electronic processing and transfer of Customer-Content involves (i) the transmission to and/or temporary transfer through third-party networks and (ii) therefore may also require modifications for the purpose of adjusting the Customer-Content to the technical requirements of such third-party networks.
(5) Smart Contact is entitled to observe and investigate the compliance with these GTC and with the applicable laws on a regular basis and in individual cases and to initiate all necessary and appropriate legal measures to avoid any illegal and/or unauthorized use of the Services, in particular to collect personal data and/or Account Data for purposes of enforcing the compliance with the provisions of these GTC and all applicable laws, including the provision of personal data and/or Account Data to criminal prosecution authorities or other third parties, such as the third party providing the Messenger Function. Insofar, the Customer hereby expressly agrees that Smart Contact may collect, store and provide personal data and/or Account Data and Customer-Contents to third parties for the purpose of enforcing the provisions of these GTC and all applicable legal provisions.
Section 5 Customer´s Responsibilities
(1) The Customer undertakes to adjust his/her/its personal data and/or Account Data in the case of any change. Section 2 para. (5) applies accordingly.
(2) Accessing and using the Services requires the correct entry of the user login and corresponding password by the Customer. The Customer is solely responsible for keeping the password private and to secure and safe his/her/its device used for accessing the Services. Smart Contact assumes no warranty and is not liable for any damages incurred by the Customer arising from or in connection with a loss or misuse of the user login and/or password; this shall not apply if Smart Contact is responsible for the loss or misuse.
(3) It is the sole responsibility of the Customer to decide for which activities his/her/its Customer Account is being used. The Customer undertakes to immediately inform Smart Contact in writing (e-mail shall suffice) of any unlawful and/or unauthorised use of the Customer Account and to ensure that he/she/it is logged out properly after each access to the Services. Smart Contact assumes no responsibility and is not liable for any damages incurred by the Customer arising from or in connection with the unlawful and/or unauthorised use of the Customer Account, unless Smart Contact is responsible for the unlawful and/or unauthorized use.
(4) The Customer is solely responsible for all content including, but not limited to, contact data, news reports, voicemails, videos and/or photos (jointly referred to as “Customer-Content”) uploaded, disclosed, linked, sent, saved or otherwise made accessible via his/her/its Customer Account (each a “Post”). This also applies to information provided in the Customer profile (the “Profile Information”) as well as to Customer-Content exchanged with or sent or forwarded to other Users via the Messenger Function or user forums. The Customer warrants that he/she/it holds all necessary rights for the Customer-Content Posted and that no third-party rights are infringed. Irrespective of its rights pursuant to Section 4 para. (5) and Section 5 para. (6), Smart Contact shall not be obliged to review Customer-Content and/or any content transmitted or Posted by the Customer using the Services without priorly having obtained express and substantiated evidence of a breach of law.
(5) The Customer is responsible for ensuring that the Customer-Content Posted complies with all applicable statutory provisions and official regulations.
(6) However, Smart Contact reserves the right to monitor and review Customer-Content Posted through the Services or the functions implemented therein and to remove such Customer-Content as a whole or in part that – at the reasonable discretion of Smart Contact – infringes applicable statutory provisions, official regulations, third-party rights and/or constitutes a breach of the provisions of these GTC or is otherwise suited to jeopardize or compromise the reputation of Smart Contact or the Services, and to temporarily block or entirely delete a Customer Account and his/her/its corresponding Posts.
(7) Unless otherwise required by applicable law, Smart Contact, its organs, legal representatives, employees, and other vicarious agents shall neither be responsible nor liable for acts by and the use of the Services by the Customer or for any content Posted by a User (the “User-Content”). The Customer warrants to take all necessary precautions and/or adopt suitable protective measures to adequately safeguard and protect his/her/its interests and the use of the Services during and in connection with interactions with other Users.
Section 6 Ban of a Customer from the Service
(1) Smart Contact reserves the right to ban a Customer from using the Services if the Customer intentionally enters incorrect and/or incomplete information with regard to key personal data and/or Account Data, if the Customer´s activities are illegal or violate moral standards or if personal data and/or Account Data entered by the Customer, especially names, logos or words/collocations, infringe on Third-Party Data.
(2) Smart Contact shall also be entitled to ban a Customer from using the Services, if the Customer uses the Services to disseminate illegal content, in particular xenophobic, racially or ethnically offensive, pornographic, discriminating, defamatory, obscene, threatening, intimidating, harassing, hateful, illegal or otherwise offensive Customer-Content and abuses the Services or parts thereof, such as the Messenger Function or user forums by (i) sending junk mails, chain letters, mass e-mails or spam (spimming, phishing, trolling or comparable types of misuse), (ii) posting Customer-Content and giving the appearance of doing so in the name and on behalf of Smart Contact, its organs, legal representatives, employees, or its other vicarious agents, (iii) sending and/or transmitting viruses, malware, or other harmful computer codes, (iv) collecting the User names and/or e-mail addresses of other Users for the purpose of mailing unsolicited messages to the Users, (v) mirroring data and information included in the Services or parts thereof or gaining or trying to gain unauthorized access to the Services or parts thereof, (vi) violating, misappropriating, or infringing rights of Smart Contact, including the Privacy Policies, (vii) involve publishing falsehoods, misrepresentations, or misleading statements, (viii) selling, reselling, renting, or charging for the Services, or (ix) altering, adapting, sublicensing, translating, reverse engineering, decoding, decompiling or otherwise fragmenting the Services or parts thereof and any software in connection with the provision of the Services or parts thereof. The same applies if the Customer uses the Services or parts thereof to infringe on Third-Party Data, especially and without being limited to the illegal or unauthorised copying of works protected by copyrights.
(3) A ban of a Customer from the Services may also be considered if the Customer uses the Services or parts thereof to participate in (i) activities in Cuba, Iran, North Korea, Sudan and/or Syria, (ii) activities with persons or groups of persons and associations named on a sanctions list such as the OFAC (Office of Foreign Assets Control) Specially Designated Nationals List or the Commerce Department’s Denied Persons or Entity List, or (iii) activities aiming at the development, manufacture or production of nuclear weapons, missiles or chemical and biological weapons or serving to prepare such weapons. By using the Services, the Customer confirms that he/she/it is not a resident of one of the above countries or one of the above-mentioned persons or a member of one of the above-mentioned groups of persons and associations, nor that he/she/it does or intents to participate in one of the above-mentioned activities.
(4) The Customer warrants that he/she/it will not participate in activities which will or might result in a situation where Smart Contact – by making available and/or offering the use of the Services – would violate applicable statutory provisions or infringe and/or violate rights contained in Third-Party Data.
(5) The Customer is obliged to fully defend, indemnify, and hold harmless Smart Contact from and against any and all liabilities, damages, losses, penalties, costs, expenditures (including reasonable legal and judicial fees) and fines resulting from or in connection with the unauthorized use of the Services or parts thereof by the Customer or such persons, the Customer is responsible for or the use of which is attributable to the Customer, in particular, but not limited to, (i) Customer-Contend, (ii) breach of this GTC, or (iii) any misrepresentations made by the Customer.
Section 7 Property Rights
(1) To the extent permitted by law, the Services and its content, in particular texts, charts, images, trade names and trademarks, trade secrets, patents, intellectual property, logos, pictures, audio- and/or video clips, empirical data, digital downloads and data collections (jointly referred to as “Service-Content“) – as long as it is not Customer-Content, personal data and/or Account Data – shall be the property of Smart Contact or third parties (each a “Licensor“) who make available or provide Service-Content (jointly referred to as „Third-Party Data“) that is legally protected by property and/or other rights. Smart Contact does not warrant and assumes no liability for the correctness, completeness, usability or validity of Third-Party Data.
(2) Should parts of the Services, of the Service-Content or of the Third-Party Data be subject to protective rights, only Smart Contact or the respective Licensor shall be entitled to register corresponding property or copyrights.
(3) The Customer ensures that he/she/it shall refrain from copying, altering, using, disclosing, creating derivative works or imitating the Services, Service-Content and/or Third-Party Data beyond the designated use of the Services without obtaining the prior written consent of Smart Contact or the respective Licensor. The Customer confirms to neither remove nor cover, render unrecognisable or otherwise alter trademarks and/or trade names or other logos published by or through the Services, either by Smart-Contact, Users, or a Licensor.
(4) The extraction and/or re-use of (parts of) Service-Content and/or Third-Party data shall require the prior written consent of Smart Contact or the respective Licensor.
Section 8 Warranty
(1) Smart Contact does no assume any responsibility or liability for the commercial success or for reaching other business purposes that may be expected by the Customer by registering and/or using the Services. In particular, but not limited to, Smart Contact assumes not warranty regarding merchantability, fitness for a particular purpose, title, non-infringement, and freedom of computer viruses or other harmful codes. Furthermore, Smart Contact assumes no warranty regarding (i) accuracy, completeness, or usefulness of any content provided through the Services, or (ii) operability, freedom from error, security, freedom of disruptions, delays, or imperfections of function of the Services or parts thereof.
(2) In the same way, Smart Contact does not guarantee that the Customer or a User has the hard- and/or software necessary for using and/or accessing the Services. Any responsibility of Smart Contact for a GPS (Global Positioning System) or other data transmission network connection of the Customer or User is excluded.
(3) The Customer acknowledges that Service-Content, Third-Party Data and/or User-Content is for information and entertainment purposes only and in no case suited to serve as and/or supplement professional, financial, medical, legal or other advice. Any liability by Smart Contact in this regard is excluded.
(4) The Services may also include links to Third-Party Content uploaded to the Services by Smart Contact or third parties, in particular by other Users. Smart Contact assumes no liability, neither for the function of the link in the context of the Services nor for the Third-Party Content accessible through such links.
(5) The Customer acknowledges and agrees that any Profile Information and Customer-Content Posted by the Customer and which is (i) not serving for the direct bilateral exchange of information between the Customer and a User, (ii) not Posted in the context of a direct multilateral information exchange between the Customer and the members of a specific user group, or (iii) not subjected by the Customer to certain privacy standards available through the Services, may be viewed by any User of the Services or other third parties having access to the Services.
(6) The Customer undertakes to fully comply with all statutory provisions applicable to the use of the Services outside the Federal Republic of Germany and valid for the place where the Services are being used or intended to be used by the Customer.
(7) The Customer is aware that the Customer Account may be set-up via his/her/its Google Account or Facebook Account, as the case may be. A loss (e.g. due to a temporary blockage or deletion) of the Google Account or Facebook Account, as the case may be, results in the Customer no longer being able to use the Customer Account. Smart Contact assumes no liability for the uninterrupted availability of the Customer Account in the case of a loss of the Google Account or Facebook Account, as the case may be. The Customer is solely responsible for maintaining the Google Account or Facebook Account, as the case may be. Also, Smart Contact is not responsible or liable for the continuous reachability or availability of Google or Facebook and/or for ensuring the uninterrupted transmission of data from Google or Facebook to Smart Contact and/or the Services.
(8) Smart Contact strives to ensure the uninterrupted availability of its Services and the correct transmission of data. However, due to the nature of the internet, this cannot be guaranteed at all times. Smart Contact makes available the use of its Services seven (7) days a week and for twenty-four (24) hours each day (24/7) with a guaranteed availability of 95%, i.e. with a total downtime of 5%. This does not account for:
- a) Non-availability due to the insufficient provision of technical requirements (hard- and/or software as well as internet connection) by the Customer and/or User;
- b) Non-availability due to errors and/or defects in the data transmission network, internet connection or other causes within the scope of responsibility of the company operating the communications message server;
- c) Non-availability due to errors and/or defects within the scope of responsibility of Google or Facebook or the data communications company operating the Messenger Function;
- d) Non-availability due to force majeure as defined in the following Section 9 para. (2);
- e) Non-availability due to maintenance; and
- f) Uninterrupted non-availability of less than consecutive fifteen (15) minutes.
(9) Due to legal regulations, the use of the Services is not available in the following countries: Cuba, Iran, North Korea, Sudan and Syria. Smart Contact does not warrant that access to and the use of its Services is available in these countries. Smart Contact furthermore reserves the right to extend the list of countries where the use of the Services is not possible if and as required by legal regulations. Smart Contact will inform the Customer thereof in advance by e-mail or in-app notification.
(10) Claims, complaints, causes of action, controversies, disputes, and damages based on warranty shall be excluded if the impairment of use is attributable to circumstances for which the Customer is responsible, especially operating errors.
Section 9 Liability for Damages Caused by Fault
(1) The liability of Smart Contact for damages on whatever legal grounds, in particular due to impossibility, default, faulty or incorrect performance, breach of contract, violation of obligations during contract negotiations and tort shall, as far as such liability depends on a proof of fault, be limited as specified in this Section 9.
(2) Smart Contact is not liable for damages caused by force majeure or other unforeseeable events (e.g. war, warlike conditions, operating disruptions of all kinds (in particular disruptions regarding the availability of the internet and GPS), difficulties in procuring materials or energy, strike, legal lockouts, shortage of labour, energy or consumables, difficulties in obtaining the necessary permits from the authorities, official acts) that are not under the control of Smart Contact. The same applies to damages from and in the context of a download performed in the Customer´s sole discretion or resulting from and arising in the context of accessing User-Content or content, in particular, but not limited to, Third-Party Content obtained otherwise by the Customer during the use of the Services.
(3) In case of data loss, Smart Contact shall be liable regarding the expenditures necessary to restore the lost data if and to the extent the Customer, immediately prior to the measure causing the data loss, has undertaken a proper data backup.
1. (4) Any liability of Smart Contact, its organs, legal representatives, employees and other vicarious agents is excluded for cases of simple negligence, unless a breach of fundamental contractual obligations is involved. Fundamental contractual obligations are obligations that are essential for the proper execution of the user agreement and of the performance on which the Customer relies and which he/she/it is also entitled to expect.
(5) To the extent Smart Contact is liable for damages on the merits pursuant to Section 9 para. (4), the amount of such liability shall be limited to damages that Smart Contact has foreseen at the time of entering into the user agreement as a possible consequence of a breach of contractual obligations or which Smart Contact, when employing customary standards of care, ought to have foreseen under consideration of all circumstances that were known or ought to have been known to Smart Contact, but in no event shall such amount exceed the value of the contractually owed performance. Indirect, special, punitive, consequential, or incidental damages as well as loss of profit or damages to reputation shall be exempt from liability to the extent permitted by the applicable local law.
(6) The exclusions and limitation of liability set forth in this Section 9 shall not apply to Smart Contact’s liability due to wilful misconduct or gross negligence, or wrongful death, personal injury, or harmful health effects, and for liability in accordance with the provisions of the German Product Liability Act or on the basis of other mandatory statutes
(7) Otherwise, the legal regulations shall apply.
Section 10 Granting of Rights by the Customer
(2) Smart Contact assumes no warranty and is not liable for any violation and/or infringement of intellectual property rights, copyrights, trademark rights, or other proprietary rights (each a “IP-Right” and jointly the “IP-Rights”) of the Customer by third parties or Users, unless Smart Contact has been notified by the Customer of such violation and/or infringement and failed to take reasonable measures to terminate such violation and/or infringement within a reasonable period of time.
(3) To report IP-Rights violations and/or infringements and request that Smart Contact removes any violating and/or infringing content it is hosting, the Customer, or any other third party (each a “Claimant”) is required to e-mail a completed IP-Right violation and/or infringement claim to firstname.lastname@example.org, including all of the following information
- a) complete contact information (i.e. full name, e-mail address, and phone number). Smart Contact regularly provides the Claimants’ contact information, including his/her/its name and e-mail address (if provided), the name of the organization or client who owns the IP-Right in question, and the content of the Claimants’ report to the person whose content the Claimant is reporting. Therefore, the Claimant may want to provide a professional or business e-mail address where he/she/it can be reached;
- b) a description of the IP-Right the violation and/or infringement of which is claimed by the Claimant;
- c) a description of the contend hosted on Smart Contact’s Services that is subject of the alleged IP-Right violation and/or infringement;
- d) information reasonably sufficient to permit Smart Contact to locate the violating and/or infringing content on the Services;
- e) a declaration that (i) Claimant has a good faith belief that the use of the protected content described above, in the manner the Claimant has complained about, is unauthorized by the IP-Right owner, its agent, or the law, (ii) the information in the Claimants’ claim is accurate, and (iii) a declaration, under penalty of perjury, that the Claimant is the owner or authorized to act on behalf of the owner of the IP-Right that is allegedly violated and/or infringed;
- f) the Claimants’ electronic signature.
(4) Before a Claimant reports a claim of IP-Rights violation and/or infringement, he/she/it may want to send a message to the relevant User believed to violate and/or infringe an IP-Right, without contacting Smart Contact.
Section 11 Termination
(1) The user agreement can be terminated at any time by each of the Contracting Parties and without observing a notification period or stating a particular reason.
(2) If the Customer intends to terminate the user agreement, it shall suffice if the Customer deletes his/her/its Customer Account and stops using the Services.
Section 12 Miscellaneous
(1) Smart Contact is entitled to transfer or assign all rights and obligations arising from or in connection with these GTC in whole or in part to any of its affiliated entities (within the meaning of sec. 15 et seq. AktG (German Stock Corporation Act) or in connection with a (forward/reverse triangular) merger, acquisition, restructuring, sale of assets, or change of control, by operation of law or otherwise. Other than this, the rights and obligations arising from these GTC may not be assigned unless the other Contracting Party has given its prior written consent.
(2) The place of performance for all obligations resulting from the contractual relationship of Smart Contact shall be the domicile of Smart Contact, unless otherwise agreed upon in writing between the Contracting Parties.
(3) The place of jurisdiction for any and all disputes arising from and/or in connection with the contractual relationship between the Contracting Parties shall be – at the discretion of Smart Contact – either the domicile of Smart Contact or the domicile of the Customer. This shall not apply if the Customer is a consumer within the meaning of sec. 13 BGB (German Civil Code) in which case the provisions of sec. 12 et seq. ZPO (German Code of Civil Procedure) shall apply for determining the competent court of jurisdiction. The place of jurisdiction for any legal proceedings against Smart Contact is Frankfurt am Main, Germany; however, compelling statutory provisions concerning exclusive jurisdiction remain unaffected by this provision.
(4) For evidentiary purposes, all oral modifications of or supplementations to the user agreement or these GTC (priority of individually agreed terms, sec. 305b BGB (German Civil Code)), shall be confirmed in writing, unless required by law to be made in writing to be effective. In this case, the modification or supplementation must be made in writing to be effective. No other agreements than those laid down in these GTC were made between the Contracting Parties and there are no further oral agreements.
(5) The relationship between the Contracting Parties as well as these GTC are exclusively governed by the laws of the Federal Republic of Germany, excluding the conflict of law provisions and the UN Convention on the International Sale of Goods.
(6) Should the Customer violate any of the provisions of these GTC and should Smart Contact not impose a penalty for such violation, this shall not be construed as a waiver by Smart Contact of compliance by the breaching Customer with the violated provision, and neither shall it mean that the violated provision had been contracted away by conclusive conduct.
(7) Should present or future provisions of these GTC be or become invalid, ineffective or unenforceable as a whole or in part, this shall not affect the validity of the other provisions of these GTC. Sec. 139 BGB (German Civil Code) is expressly waived. The same shall apply in the case of a gap in the GTC. If the invalid, ineffective or unenforceable provision is not a provision serving to protect Smart Contact and/or the Customer, an adequate provision shall be agreed upon as a replacement which comes as close as legally possible to what the Contracting Parties intended or would have intended in accordance with the purpose and intent of these GTC, would they have recognized the invalid character, ineffectiveness, or gap. If the ineffectiveness or invalid character or unenforceability of a provision is due to a measure of performance or time stipulated therein (deadline or date), the legally permitted measure most closely approximating to the ineffective or unenforceable provision shall replace the provision originally agreed upon. Otherwise, the invalid, ineffective or unenforceable provision shall be replaced by the corresponding statutory provision (sec. 306 para. 2 BGB German Civil Code).