Smart-Byte

As of: April 2025

General Terms and Conditions

For all transactions between the customer and Smart-Byte GmbH, hereinafter referred to as the company, these General Terms and Conditions apply exclusively. Any agreements deviating from or supplementing these General Terms and Conditions must be made in writing. Should individual provisions of these General Terms and Conditions be ineffective, the validity of the remaining provisions and the contracts concluded on the basis thereof shall remain unaffected. The ineffective provision shall be replaced by an effective one that comes closest to its meaning and purpose. Unsolicited application documents will not be returned unless the applicant expressly requests this and bears the associated costs. The client agrees that correspondence may also be conducted via fax or email. We will endeavor to put technical measures in place to minimize associated risks (transmission errors, viruses, manipulation), but without being liable for their success. Orders should be given to us as comprehensively and in as much detail as possible. If requested, the scope of services will be defined in a verbal briefing with the client. Service descriptions created by us are deemed a binding confirmation of the agreed contract content unless the client objects to them within three working days. Information on data processing pursuant to the GDPR can be found in our privacy policy.

Subject Matter of the Contract: These General Terms and Conditions apply to all legal transactions of Smart-Byte GmbH, hereinafter referred to as the 'Company', with its contractual partners, hereinafter referred to as the 'Client'. Deviating conditions of the Client are only accepted if explicitly and in writing acknowledged by the Company. All agreements between the Company and the Client regarding the execution of an order must be made in writing. Amendments, supplements, and collateral agreements must be in writing to be valid. These General Terms and Conditions also apply to all future business relationships with the Client, even if not explicitly agreed again. The Company provides services in the fields of conception, consulting, non-print design, programming, marketing, and media planning. Detailed service descriptions result from the tender documents, briefings, project contracts, their annexes, and the Company’s service specifications.
Contract Components and Amendments: The basis for the Company's work and a component of the contract, in addition to the project agreement and its annexes, is the briefing to be provided by the Client. If the briefing is communicated verbally or by phone, the Company will create a re-briefing summarizing the content, which will be delivered to the Client within five working days. This re-briefing becomes a binding part of the contract unless the Client objects to it within five working days. Any changes and/or additions to the contract and/or its components must be made in writing. Any additional costs incurred shall be borne by the Client. Events of force majeure entitle the Company to postpone the Client’s project by the duration of the impediment plus a reasonable start-up period. No claims for damages can be derived from this. This also applies if important deadlines and/or events cannot be met or do not occur as a result.
Copyright and Usage Rights: Upon full payment of the agreed fee, the Client acquires the usage rights to all works created by the Company within the scope of this contract, for the contractually agreed duration and scope. This transfer of rights applies insofar as it is possible under German law and for use within the Federal Republic of Germany. Any use beyond this scope requires a written agreement within the contract or an additional written side agreement. Rights to works not paid for at the end of the contract remain with the Company unless otherwise agreed. The services created as part of the contract are considered personal intellectual creations and are protected by copyright law. This applies even if the level of creativity required by copyright law is not met. The Company may sign the advertising materials it has developed in an appropriate and industry-standard manner and may publish the commissioned work for self-promotion. This signature and promotional use can be excluded by a separate agreement between the Company and the Client. The Client or third parties commissioned by the Client may not modify the Company’s work in original or reproduced form. Any imitation, including partial imitation, is prohibited. In case of violation, the Company is entitled to an additional fee of at least 2.5 times the originally agreed fee. The transfer of granted usage rights to third parties and/or multiple uses requires the Company’s consent and is subject to additional compensation, unless otherwise agreed in the original contract. The Company is entitled to request information about the scope of usage.
Compensation: The agreed compensation stated in the contract shall apply. Payments are due without any deduction within 14 days of invoicing, unless otherwise contractually agreed. If payment deadlines are exceeded, the Company shall charge default interest of 10% above the base interest rate pursuant to § 1 of the Discount Rate Transition Act without further reminder. Additionally, reminder fees of €20 per reminder level apply. The right to claim further damages remains unaffected. If the agreed services are provided over a longer period, the Company may issue partial invoices for the services already rendered. These partial services do not need to be usable by the Client and may only serve as a work basis for the Company. If the Client changes or cancels orders, work, or similar, and/or if conditions for service provision change, the Client shall reimburse the Company for all resulting costs and indemnify the Company from any liabilities towards third parties. If the Client withdraws from the project before it starts, the Company will charge the Client the following percentages of the originally agreed fee as a cancellation fee: up to three months before project start: 10%, from three months to four weeks: 25%, from four weeks to two weeks: 50%, less than two weeks: 80%. As a general rule, a down payment of at least 25% of the total project cost is required for new clients and new projects. The Company will only start the project upon receipt of payment. From that date, the estimated project duration begins. All prices and amounts stated in offers and contracts are exclusive of the statutory VAT at the applicable rate.
Additional Services: Unforeseeable additional work requires mutual agreement and, if necessary, additional compensation.
Confidentiality Obligation of the Company: The Company is obliged to treat all knowledge it gains from an assignment by the Client as strictly confidential for an unlimited period and to obligate both its employees and any third parties it engages to maintain absolute confidentiality in the same manner.
Duties of the Client: The Client shall provide the Company with all data and documents necessary for the execution of the project free of charge. All work documents will be handled carefully by the Company, protected from access by third parties, used solely for the development of the respective assignment, and returned to the Client after completion of the assignment. In connection with a commissioned project, the Client shall only award contracts to other companies or service providers in consultation and agreement with the Company.
Warranty and Liability of the Company: The Client bears the risk of legal admissibility of the measures developed and implemented by the Company. This applies particularly if the actions and measures violate competition law, copyright law, or specific advertising laws. However, the Company is obliged to point out legal risks if they become aware of them during their work. The Client shall indemnify the Company against claims by third parties if the Company acted at the express request of the Client despite having communicated concerns regarding the legality of the measures. Any such concerns must be reported to the Client in writing immediately upon becoming known. The Company shall not be liable for factual statements about the Client's products and services in the advertising material. Furthermore, the Company is not liable for the patentability, copyright protection, or trademark registrability of ideas, suggestions, concepts, and designs delivered as part of the assignment. The Company shall only be liable for damages caused intentionally or by gross negligence by itself or its agents. The Company’s liability is limited to the single amount of earnings generated by the specific contract. The Company shall not be liable for consequential damages due to defects, unless the liability results from a breach of essential contractual obligations necessary to fulfill the purpose of the contract.
Collecting Societies: The Client agrees to pay any fees owed to collecting societies such as GEMA. If these fees are advanced by the Company, the Client agrees to reimburse the Company upon proof. This may also occur after the contractual relationship has ended. The Client is aware that when awarding contracts in the artistic, conceptual, and consulting field to a non-legal entity, a social security contribution must be paid to the Künstlersozialkasse (Artists' Social Security Fund). This fee may not be deducted from the Company's invoice. The Client is responsible for ensuring compliance with registration and payment obligations.
Third-Party Services: Freelancers or third parties engaged by the Company are vicarious agents of the Company. The Client agrees not to commission these employees, engaged during the project by the Company, for any projects independently or indirectly within 12 months following the completion of the assignment without the Company's involvement.
Work Documents and Electronic Data: All work materials, electronic data, and records created by the Company during the execution of the order remain with the Company. The Client has no right to request these documents and data. By paying the agreed fee, the Company owes only the agreed deliverables, not the intermediate steps such as sketches, drafts, or production data leading to the final result.
Media Planning, Execution, and Production: Commissioned projects in the field of media planning will be handled by the Company to the best of its knowledge and based on the media documents available to it and generally accessible market research data. The Company does not guarantee any specific advertising success through these services. The Company commits to considering and passing on all discounts, special conditions, and rebates to the Client during media placement. For extensive media services, the Company is entitled—after consultation—to invoice the Client for a certain portion of third-party costs and to proceed with bookings only after payment has been received. The Company is not liable for missed placement deadlines due to late payments. The Client has no claim for damages in such cases. For productions in the print and promotional materials sector, the Company is entitled to invoice the entire amount of third-party costs to the Client and to proceed with bookings or production orders with suppliers only after receipt of payment. The Company is not liable for missed production deadlines due to late payments. The Client has no claim for damages in such cases.
Contract Duration and Termination: The contract enters into force upon its signature. It is concluded for the contract term specified in the agreement. If the contract is concluded for an indefinite period, it can be terminated by either party with a notice period of three months to the end of a month. The right to immediate termination for good cause remains unaffected. Termination must be made in writing.
Disputes: If a dispute arises during or after the completion of a project regarding the commissioned work, an out-of-court mediation procedure must be undertaken before initiating legal proceedings. In cases of disagreement over quality assessments or remuneration amounts, external expert opinions will be obtained to facilitate an out-of-court resolution. The costs will be shared between the Client and the Company. The European Commission provides a platform for online dispute resolution (ODR): ODR-Plattform. We are neither obligated nor willing to participate in dispute resolution proceedings before a consumer arbitration board.
Final Provisions: The Client is not entitled to assign claims arising from the contract. Offsetting or asserting a right of retention by the Client is only permitted with recognized or legally established counterclaims. German law shall apply. The place of performance and jurisdiction is Erding, unless mandatory legal provisions provide otherwise (e.g., in the case of consumers). Should any provision of these General Terms and Conditions be wholly or partially invalid or subsequently lose its legal validity, the validity of the remaining provisions shall remain unaffected. In place of the invalid provision, a reasonable regulation shall apply that comes closest to what the contracting parties would have intended had they been aware of the invalidity.