The General Terms and Conditions of Smart Elephant
Scope
These terms and conditions apply individually and independently of each other, and also for future cases of the same kind. Smart Elephant reserves the right to amend these terms and conditions, provided that the changes are reasonable for customers considering Smart Elephant's interests. The latest version of these terms and conditions always applies. They apply in relation to another company within the aforementioned Smart Elephant group, even if Smart Elephant forwards an order to one of these companies, which Smart Elephant is entitled to do.
Consumers within the meaning of these terms and conditions are natural persons with whom business relationships are established without attributing commercial or independent professional activity to them. Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity with whom business relationships are established, who act in the exercise of a commercial or independent professional activity. Customer within the meaning of these terms and conditions is both a consumer and an entrepreneur.
For all deliveries/services and offers of Smart Elephant, the following conditions apply exclusively, unless otherwise agreed in writing, even if no reference is made to them in individual cases. If different agreements are made for certain deliveries/services and offers of Smart Elephant, the following terms and conditions apply additionally. Counter- confirmations from the customer with reference to its terms and conditions are hereby rejected. Silence regarding the transmission of the terms and conditions of the contracting party does not result in their contractual inclusion. The terms and conditions also apply if Smart Elephant executes our deliveries/services to the customer without reservation despite being aware of conflicting or differing conditions of the customer from our terms and conditions. If the customer's terms and conditions also claim exclusivity for themselves, the customer waives their application with the order, but no later than upon receipt of the delivery/service. This receipt also explicitly constitutes acceptance of our terms and conditions.
Offers / Order Confirmations
Offers from Smart Elephant are non-binding unless expressly designated as binding by Smart Elephant; they constitute an invitation to the customer to place an order with Smart Elephant. Obvious errors in offers can be corrected before acceptance of the order. The customer's order constitutes a binding offer for the customer, which Smart Elephant can accept within 4 weeks by written order confirmation or by actually providing the delivery/service or commencing the execution of the order. If the customer has committed to providing securities such as down payments, performance bonds, or financing confirmations in an order, Smart Elephant is only obligated to execute the order once the corresponding securities have been fully provided by the customer. However, Smart Elephant is entitled to commence the execution of the order beforehand. If the customer fails to fulfill the securities by the deadlines specified in the offer from Smart Elephant or otherwise agreed, Smart Elephant is entitled to cancel the order. Any resulting damages are to be compensated by the customer.
Oral promises or promises from previous correspondence from Smart Elephant require explicit inclusion in the written order confirmation to become part of the contract. Employees of Smart Elephant are not authorized to make oral collateral agreements that go beyond the content of the written contract. Objections to order confirmations must be made promptly in writing, no later than within 5 days of the order confirmation, but in any case before the commencement of delivery/service by Smart Elephant. Later objections will not be considered unless explicitly agreed otherwise in writing. If orders are wholly or partially unfeasible at the time of issuance, Smart Elephant reserves the right to cancel them after 3 months without written notification to the client. The client cannot derive any claims for damages from delayed or omitted delivery unless Smart Elephant is guilty of intent or gross negligence.
Deadlines commence upon receipt of the order confirmation by the customer, but no earlier than the clarification of all order conditions and technical details, as well as the provision of any necessary source materials, documents, and/or approvals by the customer. Subsequent modification requests from the customer interrupt delivery/performance deadlines and restart them from the beginning.
Technical changes are reserved as long as they do not alter the essential characteristics of the ordered delivery/service and the changes are reasonable for the customer. Modified deliveries/services due to product changes from upstream suppliers are considered contractual if the customer does not object in writing within 8 days of the notification of the modified delivery/service execution. In the case of improvements and model changes from upstream suppliers, Smart Elephant reserves the right to deviate from sales documents, offers, and order confirmations, provided these deviations are reasonable for the customer and the customer does not object immediately.
Smart Elephant reserves exclusive rights and claims (e.g., ownership and copyright) to all its own handed-out proposal documents, designs, tables, calculations, and other documents. These documents may not be disclosed to third parties or used as a basis for tenders or self-production without prior written consent from Smart Elephant. They must be promptly returned upon request, without retaining any copies.
Smart Elephant reserves the right, with the customer's consent, to subcontract deliveries/services ordered on behalf and at the risk of the customer to selected third parties. The customer's consent is not required for insignificant ancillary services.
Prices
Prices are in Euro unless otherwise agreed. All prices are exclusive of the statutory value-added tax. This will be separately indicated on the invoice at the statutory rate on the day of invoicing. If not otherwise agreed, the prices valid on the day of fulfillment according to Smart Elephant's price list, which is available upon request, apply. If more than 3 months elapse between the price agreement and fulfillment, Smart Elephant is entitled to invoice prices according to the price list valid at the time of fulfillment. If prices have neither been agreed nor included in Smart Elephant's price list, market prices are applied, taking into account the use of technology or equipment and daily standard personnel fees as the price per day. All external costs and expenses incurred by third parties will be passed on to the customer with a handling/administrative surcharge of 15%, unless otherwise agreed.
Subsequent changes to the scope of the order, including the additional costs incurred thereby, will be invoiced to the customer. This particularly applies to technical problems unforeseeable at the time of order acceptance and/or technical problems with materials provided by the customer for processing.
Services are provided based on the respective service description in the offers. If the customer explicitly demands services that are not part of the contract, these will be provided, if technically and practically feasible, only upon additional invoicing of the required additional effort and with the customer's corresponding written confirmation.
In case of subsequent change requests by the customer, Smart Elephant is entitled to invoice the resulting additional effort. The same applies if a prior examination is required to determine whether and under what conditions changes or extensions, additionally requested by the customer, can be implemented.
Shipping of Data Carriers and Transfer of Risk
The shipping of returned or delivered data carriers is at the customer's expense and, unless otherwise instructed, to the customer's business address.
Smart Elephant reserves the right to ship from a location of its own choice rather than from the company headquarters.
Packaging, shipping, and return costs are to be borne by the customer. Unless otherwise agreed, Smart Elephant determines the means of transport and routes without being responsible for ensuring the fastest and cheapest option is chosen. Upon request and at the customer's expense, delivery of the handed-over data carriers can be insured against theft, breakage, transport, fire, and water damage, as well as other visible risks.
Smart Elephant is not liable for damages or total loss occurring during shipment. The risk of accidental loss or deterioration of the delivery passes to the carrier or the person designated for shipment. Any applicable liability limits of the carrier remain unaffected.
The customer is solely responsible for handling customs procedures, even in the case of shipment
The risk transfers to the customer upon dispatch or handover of the contractual object to the carrier or the person carrying out the transport. This also applies when transport is carried out by Smart Elephant or its agents. If dispatch or collection is delayed due to circumstances attributable to the customer, the risk transfers to the customer on the day of dispatch or readiness for collection. In the case of work performances, the risk transfers to the customer upon acceptance.
Payment Conditions
Payments are to be made according to the agreed payment terms as specified in the offer or order confirmation. Delivery/service remains the property of Smart Elephant until full payment is made. Any deduction of cash discount requires a special written agreement. Smart Elephant is entitled to demand reasonable advance payments.
If nothing to the contrary is specified in the offer or order confirmation, all payments are due immediately upon receipt of the invoice without any deductions. Payment deadlines are considered met if Smart Elephant can dispose of the amount within the agreed period. If this deadline is exceeded, the customer is in default of payment without further reminder. Smart Elephant is entitled to charge a reminder fee of up to 25.00 euros to the customer. The customer retains the right to prove that the reminder caused less expense. During the default, consumers have to pay interest on the amount owed at 5 percentage points above the base. Entrepreneurs have to pay interest on the amount owed at 8 percentage points above the base rate, but at least 12%. Furthermore, Smart Elephant is entitled to demand higher interest rates or to prove and claim a higher default damage against the entrepreneur. Furthermore, Smart Elephant has the right of retention for items that the customer has entrusted to Smart Elephant or that are stored at Smart Elephant or have been produced for the customer until all claims arising from the business relationship with the customer have been paid. Any granted discounts are forfeited in case of judicial and extrajudicial settlement procedures, insolvency, or default in payment.
Smart Elephant reserves the right to offset payments against any other outstanding claims of its choice unless the customer has made an explicit and clearly identifiable payment designation.
The customer has no right of set-off or retention against his own claims unless his counterclaims have been legally established and recognized by Smart Elephant. The customer can only exercise a right of retention if his counterclaim is based on the same contractual relationship. Outstanding credit notes do not entitle the customer to withhold payments.
If the customer is in default with a due payment or if a check issued by him or a self- acceptance is not honored, or if other circumstances become known that indicate a significant deterioration in the customer's financial circumstances, or if there are significant doubts about the customer's ability or willingness to pay for other reasons, Smart Elephant is entitled to demand immediate payment of all outstanding invoices and to request advance payment for all outstanding deliveries/services or to suspend them temporarily, or to issue interim invoices for orders not yet completely processed, or to withdraw from all contracts/orders subject to a reasonable deadline, notwithstanding any other rights of Smart Elephant. All damages incurred by Smart Elephant as a result thereof are to be reimbursed by the customer. The customer can avoid the exercise of these rights by providing Smart Elephant with acceptable and reasonable security. This applies analogously if bankruptcy or composition proceedings are opened, or if a corresponding application is rejected due to lack of assets or enforcement measures have been initiated to a not insignificant extent.
Retention of Title
Ownership of goods delivered by us shall not pass to the customer until he has settled all his current and future obligations arising from the business relationship. In the case of deliveries to entrepreneurs, Smart Elephant reserves the following securities until all claims arising from the entire business relationship with the entrepreneur have been fulfilled, which will be released at Smart Elephant's discretion in proportion as their realizable value exceeds the claim against the entrepreneur by more than 20%. In the case of ongoing invoices, the securities serve to secure the balance claim.
Works carried out in the area of websites/apps/programming remain the property of Smart Elephant until the customer has fully paid the agreed remuneration.
Smart Elephant grants the customer the exclusive, irrevocable right of use without any restrictions regarding content, space, or time. However, the customer is granted this right only after he has fully paid the agreed remuneration to Smart Elephant.
If the entrepreneur sells the subject matter of the contract before it has been fully paid, he assigns his claim against the third party to Smart Elephant until all outstanding claims have been settled. Smart Elephant accepts this assignment. The entrepreneur is entitled to collect the assigned claim. The aforementioned authorization for resale and debt collection only applies within the scope of proper business transactions and not if there is a prohibition on assignment between the entrepreneur and the third party.
Pledges, transfers by way of security, sales in a sale-and-lease-back transaction, and other dispositions by the entrepreneur are prohibited as long as retention of title exists.
If the entrepreneur further processes the subject matter of the contract, Smart Elephant immediately acquires ownership of the item produced. In the case of connection, mixing, or processing of items by several reservation of title owners, Smart Elephant acquires ownership of the item produced in proportion to the value of its share compared to the total value of the item produced.
In the event of seizures or other third-party interventions, the customer must immediately notify Smart Elephant in writing so that Smart Elephant can file a third-party opposition action. If the third party is unable to reimburse Smart Elephant for the judicial and extrajudicial costs of a third-party opposition action, the customer is liable for the shortfall incurred by Smart Elephant.
In the event of default, Smart Elephant is entitled to disclose all security interests and enforce the claims and rights resulting from them. In this case, the customer is obliged to immediately hand over all documents, in particular contracts and delivery notes, which are available for the claim or right to be enforced; the entrepreneur must provide any information necessary to assert the claim or right immediately.
The customer hereby transfers to Smart Elephant all items, code, media materials, data carriers, and data contained therein that have come into the possession of Smart Elephant in connection with the order, as security.
With the order placement, the customer assigns Smart Elephant the exclusive, temporal, spatial, and content-unrestricted usage rights to all code and media related to the order. These rights extend to all known types of use. If third-party rights exist or arise, the customer hereby additionally assigns to Smart Elephant any acquisition rights for exclusive use. The customer is authorized by Smart Elephant to use them under the condition of revocation.
The customer hereby assigns to Smart Elephant all current and future claims arising from the transfer of usage rights to third parties. Likewise, the customer hereby assigns to Smart Elephant his claims for insurance benefits regarding these code/media. Until revoked, the customer is entitled to collect the claims. Smart Elephant accepts all the aforementioned assignments.
Right of Retention
All materials originating from the business relationship between us and the customer may be retained by us until the customer has fully fulfilled his obligations.
If there is a significant deterioration in the customer's financial circumstances after the conclusion of the contract or if Smart Elephant becomes aware of circumstances that jeopardize the claim to remuneration, Smart Elephant is entitled to refuse performance of its own contractual obligations until the customer has fulfilled his obligations under this contract or provided security for them.
Smart Elephant may set a reasonable deadline within which the customer must fulfill his performance obligation from the contract against performance by Smart Elephant at its discretion or provide security. In the event of an unsuccessful expiry of the deadline, Smart Elephant may withdraw from the contract.
Duties of the Customer
The customer assumes full material and legal responsibility for the code/material supplied by him and indemnifies us from any claims by third parties.
Smart Elephant is entitled, within the framework of legal and/or contractual provisions, to make the reports requested by collecting societies. The customer expressly indemnifies Smart Elephant from any claims by collecting societies.
Unless otherwise agreed in writing, Smart Elephant is entitled to consider the customer (depositor – in the case of several depositors, each individual co-depositor) as entitled to draw and authorized to grant sub-licenses.
The customer is obliged to ensure full insurance coverage for the items handed over or kept in custody for him by Smart Elephant, to provide suitable replacement material or samples for the original material, to promptly notify Smart Elephant of any changes to the address, company, and rights holders.
Deadlines / Dates
Any delivery deadlines or performance times are specified in the order confirmation from Smart Elephant. Smart Elephant reserves the right to make early or partial deliveries.
Events of force majeure entitle Smart Elephant to postpone the delivery or performance for the duration of the hindrance. If force majeure makes the delivery or performance permanently impossible, but at least for a period of six months, Smart Elephant is released from its delivery or performance obligations.
Subsequent order changes or delayed deliveries by the customer result in a corresponding extension of the delivery deadline.
Smart Elephant's liability for damages due to delay is limited to foreseeable damages. If Smart Elephant is liable only for simple negligence due to delay, the claim for damages is limited to 0.5% for each full week of delay, but to a maximum of 5% of the value of that part of the total delivery or performance which was not delivered on time or as agreed due to the delay.
The customer's right to withdraw from the contract remains unaffected. The customer is entitled to damages in the amount of foreseeable damages only if the delay is due to intent or gross negligence; in this case, our liability for damages is limited to 5% of the invoice amount of the undelivered or delayed delivery.
Acceptance
The customer will be requested in writing to accept the goods/work once they are completed. Following this request, the customer is obligated to inspect and accept the service work within one week. If there is a defect, the customer must notify Smart Elephant in writing within one week. If this is not done, the web maintenance/web development/app development, software development, and website will be considered accepted. Once the customer gives their approval, Smart Elephant will activate/hand over or launch the website/web maintenance/app development/software developments.
Liability
The customer is entitled to contractual and statutory claims for damages only if they are based on a proven intentional or grossly negligent breach of duty by Smart Elephant, its legal representatives, or its senior executives.
Smart Elephant is liable for simple negligence—except in cases of injury to life, body, or health—only if essential contractual obligations (cardinal obligations) are violated, limited to the typical and foreseeable average damage. Liability for indirect and unforeseeable damages, consequential damages, lost profits, secondary obligation violations, and lack of economic success is excluded.
Any further liability for damages beyond these provisions is excluded, regardless of the legal nature of the asserted claim. Where Smart Elephant's liability is excluded or limited, this also applies to the personal liability of its employees, workers, staff, organs, representatives, and vicarious agents.
Furthermore, Smart Elephant is not liable for damages or consequential damages that occurred directly or indirectly due to data transmission.
Warranty
The customer must check the conformity of the provided deliveries/services immediately upon receipt and, if a work is owed, accept it.
Entrepreneurs must report obvious defects to Smart Elephant in writing immediately, but no later than within one week of receiving the delivery/service; otherwise, warranty claims are excluded. Defects in part of the delivery/service do not entitle the customer to complain about the entire delivery/service unless the partial delivery/service is of no interest to the customer, for which the customer bears the burden of proof. Timely dispatch is sufficient to meet the deadline. The entrepreneur bears the full burden of proof for all claim requirements, especially for the defect itself, the time of its discovery, and the timeliness of the defect report. Hidden defects, which cannot be found after immediate inspection, can only be claimed against Smart Elephant if the defect report is received by Smart Elephant within six months after the transfer of risk.
For entrepreneurs, the warranty period is one year from the delivery of the goods. For consumers, the limitation period is two years; for used items, it is one year from the delivery of the goods. This does not apply if the customer fails to report the defect in time as per the previous paragraph. If the customer is an entrepreneur, the sale of used items is made under the exclusion of any liability for defects remains unaffected. The limitation period in the case of supplier recourse remains unaffected; it is five years from the delivery of the defective item.
The prerequisite for the warranty is that the defective delivery/service can be inspected and checked by Smart Elephant at the customer's premises. Smart Elephant can charge the customer for the expenses incurred for this in a reasonable amount. At the request of Smart Elephant, the customer must send the defective delivery/service to Smart Elephant for inspection, freight-free and at their own risk.
Any changes and repair work carried out by the customer or third parties will exclude liability for the resulting consequences. Any warranty claim will also lapse.
If the customer is a consumer, they initially have the choice of whether supplementary performance should be by repair or replacement. However, Smart Elephant is entitled to refuse the chosen type of supplementary performance if it is only possible with disproportionate costs and the other type of supplementary performance remains without significant disadvantages for the consumer. If the customer is an entrepreneur, Smart Elephant will initially provide a warranty for defects in the delivery/service owed at its own discretion by repair or replacement. Repairs carried out during the warranty period do not generally extend the warranty period. Replaced parts become the property of Smart Elephant.
If supplementary performance fails, the customer can generally demand a reduction in the remuneration (reduction) or cancellation of the contract (withdrawal) at their discretion. In the case of only minor contractual non-compliance, especially in the case of minor defects, the customer does not have the right to withdraw. Supplementary performance is considered to have failed if it has been attempted multiple times and further supplementary performance is unreasonable for the customer.
If the customer receives defective assembly instructions, Smart Elephant is only obliged to provide a defect-free assembly instruction and only if the defect in the assembly instructions prevents proper assembly.
The customer does not receive any guarantees in the legal sense from Smart Elephant. Manufacturer guarantees remain unaffected.
Smart Elephant only assumes liability for advice and consulting services if a written consulting contract has been concluded. Otherwise, they are non-binding.
.Smart Elephant does not guarantee the correct selection, use, application, and utilization of the products. This applies especially in connection with the use of other hardware and software systems.
Any violation of the above obligations excludes any warranty claims against Smart Elephant. The assignment of warranty claims to third parties is excluded.
Force Majeure
The scheduling of an appointment is subject to the condition of timely delivery capabilities. Unforeseen events not attributable to Smart Elephant, whether at Smart Elephant or its suppliers, such as strikes, lockouts, accident damages, operational disruptions, natural disasters, raw material shortages, etc., entitle Smart Elephant to withdraw from the contract or to postpone the appointment for the duration of the hindrance, excluding any claims for damages by the customer. Smart Elephant is only entitled to withdraw if postponement is not possible. In such cases, Smart Elephant must inform the customer of the unavailability of devices and, in the event of withdrawal, promptly refund any payment already made by the contractual partner.
Confidentiality
The customer must maintain strict confidentiality about all provisions of any contract concluded with Smart Elephant, even beyond its duration. The customer commits to keep all business and operational matters of Smart Elephant, known or discovered in connection with the contract, strictly confidential, even after the contract ends. Furthermore, the customer is obligated to uphold the reputation of Smart Elephant and refrain from any actions or statements that could damage or endanger Smart Elephant's reputation, even after the contract ends. If the customer violates any of these obligations, Smart Elephant has the discretion to impose a reasonable contractual penalty, the amount of which may be reviewed by the competent court if necessary.
Data Protection
Smart Elephant is entitled to process all data concerning the business relationship with the customer in accordance with the provisions of the Federal Data Protection Act without the customer's explicit consent.
Data carriers must be delivered or returned free of programs, viruses, or program components that could impair or endanger the functioning of Smart Elephant's data processing systems. The customer is liable for damages caused by programs, viruses, or program components present on returned hardware.
The customer is obligated to externally back up all data on the devices. Smart Elephant is not responsible for any loss of data.
All clauses of these general terms and conditions (GTC) apply analogously to all other contractual relationships, regardless of the section they are assigned to.
Jurisdiction, Applicable Law
The law of the Republic of Mauritius exclusively applies, excluding the Vienna UN Convention on Contracts for the International Sale of Goods (CISG) and all other international regulations and conventions concerning the exchange of goods and services.
If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is the headquarters of Smart Elephant. The same applies if the customer has no general place of jurisdiction in Mauritius or if the residence or habitual abode is unknown at the time of filing the lawsuit. Smart Elephant is also entitled to sue in a court that is competent for the customer's place of business or branch.
English is the sole language for negotiations and contracts.
Written Form Clause, Severability Clause
Changes and additions to the contract, as well as collateral agreements, must be in writing.
If any provision of the contract, including these GTC, is invalid or not effectively incorporated into the contract, the validity of the remaining provisions shall not be affected. The preceding provisions apply accordingly if the contract proves to be incomplete. The contracting parties undertake to replace this gap or the invalid part of the contract with valid provisions that most closely reflect the technical and economic purpose of the invalid or missing provision. The contracting parties will make necessary changes, additions, or adjustments to the contract in a spirit of good cooperation and in consideration of their mutual economic interests.
Special Terms and Conditions
Cancellation of Service Contract
If the customer cancels the service contract, regardless of the reason, a cancellation fee of 30% of the gross order value will generally be charged. If the cancellation occurs less than one week before the start of the order, 50% of the gross order value is due, 75% if less than three days, and 100% if less than 24 hours. The timing of the cancellation is determined by the receipt of the cancellation notice by Smart Elephant. The aforementioned flat-rate costs take into account the average savings and the usual possible alternative use of the booked service. The customer has the right to prove a lower damage.
Subcontractors
Smart Elephant is entitled to collaborate with subcontractors or use subcontractors for partial services to provide the agreed service. This does not establish a contractual relationship between the customer and the subcontractor, and Smart Elephant's obligations to the customer remain unaffected.
Usage Rights
If Smart Elephant carries out orders for customers using its own personnel or third parties to provide creative or otherwise protected services (e.g., conception, image and sound design, animation, graphics, design, programming, etc.), only the rights explicitly agreed upon in writing will be transferred to the customer, particularly the copyright usage rights. In the absence of such written agreement, only the rights minimally necessary for the immediate fulfillment of the contract's purpose are transferred. The transfer is non-exclusive, non-permanent (limited to 3 years after the creation of the respective right), and restricted to the extent of the rights Smart Elephant itself has acquired. Any transfer of usage rights is conditional upon full payment as per Section 3.1.
Additional usage rights and/or rights to be acquired from collecting societies (e.g., ASCAP, BMI, PRS, SACEM, APRA AMCOS ) must be acquired separately by the customer.
Smart Elephant is entitled to use productions and orders created by Smart Elephant for self-promotion with or without mentioning the customer for press and public relations purposes. Furthermore, Smart Elephant is entitled to participate in design and similar competitions with its own creative or otherwise protected services in its own name.
In website projects/creation or programming, Smart Elephant is entitled to place a link on the customer's website indicating its authorship. The customer is not permitted to remove this indication. Additionally, Smart Elephant is allowed to include the customer's created website in its reference list and to set a link. Due to the variety of variations, different representations may occur when different operating systems, devices, browsers, etc., are used. Smart Elephant cannot guarantee consistency in these cases.
Storage of Media Material/Additional Services
The storage of code/media material handed over to us is free of charge for the duration of the processing order. Storage beyond the processing time is not part of Smart Elephant's service obligations.
If storage is agreed upon in writing following the processing, the storage of code/media material will be in a storage room not specifically designed for archival storage. The storage fees are determined by our current price list. Smart Elephant is entitled to store the material, if necessary, in the name of the customer with third parties.
Liability for any loss or damage of the code/media material handed over to us is excluded unless it is due to intent or gross negligence on our part or that of our vicarious agents. Smart Elephant takes over code/media material for storage without inspection and in the condition in which it was handed over for storage. It is the customer's responsibility to ensure full insurance coverage for material handed over for processing or storage, e.g., against fire, theft, water damage, transport.
Smart Elephant is entitled, after prior notice within a reasonable period, to send the code/media material to the last known address of the customer. If the notice cannot be delivered by mail, Smart Elephant is authorized, after one month, to store the material elsewhere at the customer's expense and risk, publicly auction it, sell it as scrap, destroy it, or dispose of it including the usage rights transferred for security.
Performance Disruptions
Smart Elephant is liable for the timely and proper performance of consulting and other services provided, but not for achieving any economic or other performance success intended by the customer.
If Smart Elephant is responsible for a non-compliant or faulty service, Smart Elephant must only perform the service in accordance with the contract within a reasonable period and without additional costs if the customer immediately notifies Smart Elephant in writing, at the latest within 1 week of becoming aware of the issue. Defects reported as part of acceptance must be specified in such detail that Smart Elephant can implement and rectify them based on the current state of technology. Only technical or qualitative defects that deviate from the agreed-upon implementation are considered defects. The customer is only entitled to terminate the contract if the contractual performance of the service fails significantly, even within a reasonable grace period, for reasons attributable to Smart Elephant. In this case, Smart Elephant is entitled to compensation for the services provided up to the effective date of termination.
Change of Service
After concluding the contract, the customer can request changes to the scope of services within Smart Elephant's capabilities. Smart Elephant will review the customer's request and inform the customer if the requested change is unreasonable or not feasible.
Changes requested by the customer that deviate from the scope of the order or are requested after acceptance of the relevant work step are not included in the quoted compensation and will be invoiced separately to the customer.
Contract Production
If the customer commissions Smart Elephant for production, the customer's payable compensation is based on Smart Elephant's calculation offer. The offer is binding for the scope of services to be provided by Smart Elephant. Special services and subsequent content or other changes are not included in the budget and will be charged separately by Smart Elephant.