General terms and conditions

General terms and conditions
of
smartblue AG
Kistlerhofstrasse 75, 81379 Munich, Germany

1. General information

1.1. These general terms and conditions govern relationships between smartblue AG and those who use the services of smartblue AG (hereinafter ‘customers’). They apply to consumers as well as to business customers (entrepreneurs, legal entities, trading companies).
1.2. The customer agrees to the general terms and conditions
– by accepting a quote in which the general terms and conditions were included or
– by successfully completing the online purchase process.
1.3. The customer’s general terms and conditions generally do not apply unless smartblue AG expressly agrees to these in written or text form.
1.4. Individual agreements may replace these general terms and conditions in whole or in part, as long as they are in writing.
1.5. The customer and smartblue AG are obliged to maintain secrecy regarding all information that the parties have obtained to initiate and carry out the contractual relationships. This also applies once the contractual relationship has ended.
1.6. The general terms and conditions shall apply in the form that was applicable at the time the contract was concluded. These are available in a form that can be printed and saved at www.smartblue.de.

2. Conclusion of the contract

2.1. Pricing, quotes and other notices regarding the conditions of smartblue AG are non-binding until the order is confirmed.
2.2. Customers receive an email confirmation after completing the order process when placing orders in the online shop. This confirmation does not constitute binding acceptance of the order.
2.3. A contract only comes into effect when smartblue AG specifically confirms the order in written or text form. A contract also comes into effect even without an unequivocal confirmation of the order if smartblue AG executes the order for the customer in a clearly evident manner within four weeks of the order.
2.4. If the customer receives an order confirmation that differs from their order, this is deemed as accepted by the customer if they expressly accept the new content or declare that they agree to it by taking actions that imply such consent.

3. Right of cancellation (only in the case of contracts with consumers)

3.1. If the conclusion of the contract is subject to the conditions regarding distance contracts (cf. § 312 c of the German Civil Code), the consumer has a legal right to cancellation. The cancellation policy is provided as part of the order confirmation. The text of the cancellation policy is also available in the appendix to these general terms and conditions.
3.2. If the customer has a legal right to cancellation, they can cancel their contract declaration by expressing stating this in text form within a period of 14 days without providing any reasons. The withdrawal period is 14 days from the day the contract was concluded. The customer is not required to use the legally binding cancellation form template. Sending the cancellation to smartblue AG within the notification period is sufficient.
3.3. There is no right to cancellation in the case of contracts or delivered goods which are produced to meet customer specifications or are clearly tailored to meet the customer’s personal needs.
3.4. The right to cancellation is excluded if the customer opens sealed data carriers (cf. § 312 g para. 2 S. 1 no. 6 of the German Civil Code).
3.5. In the event of a valid cancellation, smartblue AG must refund all payments that it has received from the customer, including the delivery costs (in the amounts incurred for a standard delivery) within 14 days. This period is calculated starting from the day on which smartblue AG received the notification regarding the cancellation of the order. smartblue AG will use the same payment method that the customer used for the original transaction when making the refund unless a different method is expressly agreed. smartblue AG will not charge any fees for this refund.
3.6. The customer must send back or hand over goods that they received in conjunction with the contract promptly or in any case within 14 days after the day on which they informed smartblue AG of the cancellation of the order at the latest. This deadline is considered to be met if the customer sends back the goods before the period of 14 days has expired. The customer will cover the immediate costs for returning the goods.
3.7. If the customer has requested that the services provided by smartblue AG begin during the cancellation period, the customer must pay an appropriate amount which corresponds to the percentage of services that have already been rendered by the time at which they inform smartblue AG that they are exercising their right to cancellation of this contract in comparison to the total scope of services that were specified in the contract.

4. Prices and terms of payment

4.1. All prices quoted in the course of business with consumers represent gross prices including the legally applicable value-added tax. Prices quoted in the course of business with persons who are not consumers represent net prices plus the legally applicable value-added tax, unless expressly stated otherwise. Delivery/shipping costs are quoted separately. (Calculations of delivery/shipping costs must be displayed to consumers prior to adding the goods to the shopping basket – before making the decision to purchase them.)
4.2. The fee for the use of the web software must always be paid in advance. The term of payment is 14 days.
4.3. The customer can also authorise smartblue AG to collect invoice amounts that are due via direct debit until this arrangement is cancelled.
4.4. If the customer defaults on their payments or smartblue AG learns of circumstances that make insolvency proceedings or a settlement of the customers’ assets likely, all outstanding invoices shall become immediately due for payment. smartblue AG is also entitled to discontinue its services until the outstanding claims have been paid in full and switch to prepayment, provided this is reasonable for the customer under consideration of the interests of both parties. The customer shall still be liable for making the payment.
4.5. If the customer defaults on a payment, smartblue AG is entitled to charge interest on late payments to the extent provided for by the legal framework; that is, in the amount of 5 per cent above the base interest rate in business transactions with consumers and in the amount of 9 per cent above the base interest rate in business transactions with other customers. In addition, smartblue AG is entitled to charge a flat fee of €40.00 for late payments in business transactions with customers who are not consumers. Interest on late payments and, where applicable, flat fees for late payments shall be added to the outstanding claims. smartblue AG has the right to assert higher claims for damages caused by delayed payments.
4.6. In the case of delivered objects, smartblue AG retains ownership of such goods until the customer has paid all claims against them in full. The prolonged and extended reservation of proprietary rights applies. The customer may not use delivered goods as collateral or security in the course of other legal transactions until they have been paid for in full. If the customer defaults on a payment, smartblue AG may take back the goods at its own discretion. In the case of deliveries abroad, smartblue AG reserves the right to request securities that reduce or exclude the risk of defaults on payment.
4.7. The customer only has a set-off right if their counter-claims are legally established or undisputed.

5. Customer’s duty of cooperation

5.1. The customer is responsible for ensuring that the use of the smartblue AG software solutions as well as the hardware provided by smartblue AG complies with the national laws, administrative regulations and relevant provisions to which the customer is subject. The customer must obtain regulatory approvals for the operation of the solar installation.
5.2. Detailed technical documentation and information on configuring the installed system are typically required for the installation of the smartblue AG software solutions. The customer is to supply this information to smartblue AG upon request and at no cost. Smartblue AG wishes to point out that, for technical reasons, services that are essential to the contract can only be delivered step-by-step as the customer fulfils certain duties of cooperation. This particularly applies to the provision of information regarding user master data and the technical configuration. The customer is liable for the completeness and accuracy of the provided information.
5.3. The customer is responsible for the correctness of the measuring data transmitted to smartblue AG. Incorrect measuring data can result in the display of faulty information in subsequent stages that rely on the data. The automatic error detection feature cannot guarantee that incorrect measuring data will be recognised as such in various configurations.
5.4. The customer undertakes to ensure that all materials they upload to the smartblue AG web platform comply with the respective applicable laws of the Federal Republic of Germany and the country in which the customer has its headquarters. Copyright and related rights as well as other industrial property rights are to be observed in particular. In addition, the materials used may not violate moral standards. This applies to pictorial, textual, schematic and audiovisual representations. Smartblue reserves the right to remove texts and images which violate this rule.
5.5. The meteorological and climatic data provided by smartblue AG may only be used for the intended purposes and not for personal or commercial aims. Any disclosure of this data to third parties also requires the written consent of smartblue AG.
5.6. The customer is responsible for backing up their data and protecting it against loss until it is received by smartblue AG. The customer must inform smartblue AG immediately if third parties assert claims against them due to alleged breaches of industrial property rights that are attributed to services rendered by smartblue AG.
5.7. The customer shall ensure that third parties cannot obtain the access data, user names and passwords supplied to the customer by smartblue AG.
5.8. If the configuration of a system changes or hardware components are added or replaced, the customer shall ensure that these changes are reflected in the smartblue AG system. Depending on the type of change, the customer can enter these themselves or have the corresponding changes made by informing smartblue AG.
5.9. The customer shall ensure that the end customer authorises the transfer to and use of the measuring data by smartblue AG as well as the transfer of the end customer’s master data to smartblue AG.
5.10. The customer must answer all questions regarding the set-up of their systems – online or in writing – truthfully and to the best of their knowledge and abilities. Above all, the actual performance of the system must correspond to specifications provided by the customer. smartblue AG is to be promptly informed of changes to the specifications and components of the system.
5.11. The storage space made available by smartblue AG may not be used for other purposes than for storing measuring data and for purposes which support the evaluation of the data. smartblue AG may delete data which is subject to a complaint in the event of improper use.
5.12. The customer must refrain from activities which impair the performance and accessibility of the services provided by smartblue AG or place undue strain on them.

6. Using the web content of smartblue AG

6.1. Any attempt to decompile the source code of the services made available by smartblue AG is prohibited, either in whole or in part. smartblue AG likewise prohibits any changes or additions to the software that are not approved by smartblue AG.
6.2. If third parties obtain access to the service of smartblue AG via the customer, the customer will also impose the above obligations on the third party.
6.3. smartblue AG reserves the right to temporarily discontinue operation in whole or in part in the event of maintenance or expansion work. This disruption will last 24 hours at the most. smartblue AG will endeavour to plan these disruptions that are necessary for operational reasons during times with low PV production and will give the greatest possible consideration to the presumed interests of the customer. Ideally, the customer will still be able to use parts of the service even during the disruption in this case.
6.4 smartblue AG is entitled to reduce the maximum detail resolution from a minute-by-minute basis to an hourly basis two years after a system has been connected at the earliest in order to reduce the volume of measuring data that needs to be stored.
6.5. smartblue AG reserves the right to modify components of the online platform and the services it offers at any time, provided that this does not result in any unreasonable consequences for the customer.

7. Data processing and privacy

7.1. The customer authorises smartblue AG to store as well as process and use the data received from the customer and their measuring hardware in anonymised form. The anonymised processing and use of the data may be carried out for the further development of the applied error algorithms and the service provided by smartblue AG in general, for market research and for comparisons with measuring data from other systems. The customer affirms that they hold the rights of use for the received measuring data and are authorised to grant the aforementioned rights of use.
7.2. The personal data provided voluntarily by the customer while placing their order is only used according to the requirements of the German Federal Data Protection Act (Bundesdatenschutzgesetz) and the German Telemedia Act (Telemediengesetz). smartblue AG will obtain the required consent of the customer to the extent that it collects, processes or uses personal data in the course of the use of the services and no statutory authorisation applies.
7.3 Personal data belonging to the customer is only collected if and to the extent that the customer voluntarily provides such data when using the online purchase process of smartblue AG. The customer authorises smartblue AG to retrieve, process and store all data required to execute this contract. This authorisation also applies for the case that smartblue AG commissions a third party to execute the contract. This data is only processed and passed on to third parties to the extent that is required to carry out the contractual relationship.
7.4. The customer has a right to obtain free information at any time regarding their stored personal data as well as, where applicable, a right to have this data corrected, blocked or deleted.
7.5. smartblue AG reserves the right to use customer data particularly for the purposes of statistical evaluations as well as to provide customers with information and further develop the company’s web portal as well as for creating usage profiles. The customer can reject this use of their personal data at any time.

8. Warranty

8.1. In the event of obvious defects, notices of defects are to be reported to smartblue AG immediately after they are identified. The forwarding agent must be notified immediately if a delivery already has external damage when a shipment is received or if parts of a delivery are missing. Defects which are not readily apparent must be submitted to smartblue AG in the form of a complaint immediately within 14 days of being identified by the customer.
8.2. Defects in the delivered software and/or hardware, including manuals and other documentation, will be remedied by smartblue AG within the warranty period following corresponding notification by the customer.
8.3. The warranty period is two years for business with consumers and one year for business with other customers. Each of these periods begins at the time of delivery. The point in time at which a claim to have defects remedied is received by smartblue AG in text form determines whether this claim was received in good time.
8.4. In the course of business with consumers, the defects are remedied by eliminating them free of charge (repair) or delivering software that is free of defects (replacement) at the customer’s discretion. The expenses required for this purpose are borne by smartblue AG, particularly transport, road, labour and material expenses. In the course of business with other customers, the defects are remedied by means of a repair or replacement as determined by smartblue AG.
8.5. If a replacement is provided, smartblue AG is also entitled to supply a new program version that has the same scope of functionality at a minimum, unless this is unreasonable for the customer (e.g. because this would require a different operating system or more powerful hardware).
8.6. If smartblue AG remedies a defect by means of a repair (rather than by supplying a replacement), this does not mean that the period of limitation starts over again, unless a further notice of defect is submitted regarding the defect that has already been eliminated or a direct result of the eliminated defect.
8.7. If the defect cannot be remedied within an appropriate period of time or if the repair or replacement is considered to have failed for other reasons, the customer can reduce (decrease) the purchase price, withdraw from the contract, submit a claim for damages or request reimbursement of wasted expenditure. The following provisions apply regarding the liability of smartblue AG with respect to claims for compensation of damages or the reimbursement of expenditures. Withdrawal from the contract does not exclude the right to compensation for damages.

9. Liability

9.1. smartblue AG is liable in cases of intent and gross negligence; due to a warranty commitment, provided that no other stipulations have been made in this regard; and due to mandatory legal liability, particularly in accordance with the Product Liability Act. smartblue AG is also liable if an essential contractual obligation is breached intentionally or due to gross negligence. Essential contractual obligations are obligations imposed by the smartblue AG contract with regard to its content in order to attain the purpose of the contract, whose fulfilment is a prerequisite for enabling the proper implementation of the contract and on whose fulfilment the customer may ordinarily rely.
9.2. In the course of business with consumers, smartblue AG is liable in an unlimited amount for injuries to life, limb or health. In the case of other damage in the course of business with consumers, the liability of smartblue AG for slight negligence is limited to such damages as those which must typically be expected to occur within the context of the agreement concluded between the parties.
9.3. In the course of business with persons who are not consumers, the liability of smartblue AG is limited in its amount to a maximum of €1,000,000 for damages in connection with a system; a maximum of €1,000,000 for injuries to life, limb or health; and a maximum of €250,000 for other damages.
9.4. Liability for the loss of data is limited to the typical expenses required for its restoration, which would be incurred for the regular creation of backup copies in accordance with the involved risk.
9.5. smartblue AG guarantees the correctness of the evaluations which are carried out on the basis of the received data as well as its storage during the term of the contract. It is not liable for the correctness, completeness or currency of the measuring data received from the customer. The evaluations conducted by smartblue AG are of a purely informative nature and are not intended to serve as verification vis-à-vis grid operators, public authorities or other stakeholders of the customer.
9.6. smartblue AG provides no guarantee that meteorological data entered in the smartblue system via third-party providers is correct or up to date.
9.7. smartblue AG assumes no liability for loss of earnings or reduced output experienced by the customer. These may result, for example, due to fluctuations in the quality of the measured data, transmission errors, data flow glitches and other factors over which smartblue has no influence. This applies both for the measured data which smartblue receives directly from the customer as well as for data which is supplied by third parties. Climatic and meteorological events as well as events of force majeure may also negatively affect measured data and the transmission paths of the measured data and therefore impair smartblue’s performance.
9.8. smartblue AG assumes no liability for the functionality of data networks, servers or data lines to its computer centre or for the continuous availability of its online shop.
9.9. If the liability of smartblue AG is excluded or limited, the same also applies for liability on the part of its legal representatives, employees and agents.
9.10. Claims for damages against smartblue AG become time barred after a limitation period of two years in the case of business with consumers and after a limitation period of one year, calculated according to the respective point in time at which the limitation period commenced, in the case of business with other customers.

10. Other arrangements

10.1. The place of jurisdiction is Munich in the Federal Republic of Germany. Smartblue is also entitled to file lawsuits at the customer’s headquarters.
10.2. German law shall apply; the UN Convention on the International Sale of Goods shall be excluded.
10.3. Changes to and deviations from the provisions in these general terms and conditions must be made in writing in order to be valid.
10.4. If individual provisions of these general terms and conditions become ineffective or unenforceable, they shall be replaced by a provision that is a close equivalent to the invalid provision. The other provisions shall remain unaffected.

Appendix 1 – Information regarding online orders

If goods and services can be ordered online, the total price of the order including any shipping costs which may be required will be displayed in a transparent manner during the online purchase process and at the latest in the last screen before the legally binding quoted price is presented. The customer is deemed to have made a legally binding offer to purchase to smartblue as soon as they click the ‘Confirm purchase’ button in the last step of the online purchase process. The offer to purchase the desired product is considered to have been accepted by Smartblue as soon as an email confirmation is sent to the customer in response to the customer’s order. The confirmation that the order has been received, which immediately follows the online purchase process, is not considered a confirmation of the order as yet.

If shipping costs are incurred, these are clearly and unambiguously displayed during the online purchase process. All prices are displayed including the value-added tax that applies in Germany. Exceptions to this are clearly identified as such and are found in areas reserved exclusively for business customers if applicable.

Appendix 2 – Current form for cancellation policy

Right to cancellation

You have the right to cancel this contract within 14 days without providing any reasons.

The withdrawal period is 14 days from the day the contract was concluded. If you receive goods (hardware) from smartblue AG in order to implement the contract, the cancellation period is 14 days from the day on which you or a third party designated by you, who is not the carrier, has or have taken possession of the goods.

In order to exercise your right to cancellation, you must inform

smartblue AG, Kistlerhofstr. 75, 81379 Munich, Germany
Tel.: +49 89 41 61 72 41-0 – Fax: +49 89 41 61 72 41-9 – Email: sales@smartblue.de

of your decision to cancel this contract by clearly indicating this (e.g. by means of a letter sent by post, a fax or an email). You may use the attached cancellation form template for this purpose; however, this is not mandatory.

It is sufficient if you send your message indicating that you are exercising your right to cancellation prior to the end of the cancellation period.

Consequences of cancellation

If you cancel this contract, we must promptly refund all payments we have received from you, including delivery costs (with the exception of additional costs incurred in the event that you have selected a different delivery method than the cheapest standard delivery price we offer you), and at the latest within 14 days from the day we received the notification of your cancellation of this contract. We use the same method of payment which you used for the original transaction when making this refund unless another method has been expressly agreed with you; in no case are you charged fees due to this refund. We can withhold the refund until we have received the returned goods or until you have provided evidence that you have sent back the goods, whichever is the earlier.

You must send back or hand over the goods to us (smartblue AG, Kistlerhofstrasse 75, 81379 Munich, Germany) promptly or in any case within 14 days after the day on which you informed us of the cancellation of this contract at the latest. This deadline is considered to be met if you send back the goods before the period of 14 days has expired.

You are required to cover the immediate costs of returning the goods.

You will only need to compensate for any losses in the value of the goods if this devaluation is attributed to handling of the goods which was not necessary to check its quality, characteristics and functionality.

If you have requested that the services provided by smartblue AG begin during the cancellation period, you must pay an appropriate amount which corresponds to the percentage of services that have already been rendered by the point at which you inform smartblue AG that you are exercising your right to cancellation of this contract in comparison to the total scope of services that were specified in the contract.

Cancellation form template

(If you wish to cancel the contract, please fill in this form and return it.)

To: smartblue AG, Kistlerhofstrasse 75, 81379 Munich, Germany (Tel: +49 89 41 61 72 41-0; Fax: +49 89 41 61 72 41-9; Email: info@smartblue.de):
I/we (*) hereby cancel the contract that I/we (*) concluded relating to the purchase of the following goods (*)/the provision of the following service (*) …
ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only if submitted on paper)
Date
(*) Please delete irrelevant information.

Appendix 3 – Information regarding privacy at smartblue

Personal data

The personal data provided voluntarily by the customer while placing their order is only used according to the requirements of the German Federal Data Protection Act (Bundesdatenschutzgesetz) and the German Telemedia Act (Telemediengesetz).

Personal data belonging to the customer is only collected if and to the extent that the customer voluntarily provides such data when using the online purchase process of smartblue AG. This data is only processed and passed on to third parties to the extent that is required to carry out the contractual relationship between the provider and the customer.

The customer has a right to obtain free information at any time regarding their stored personal data as well as, where applicable, a right to have this data corrected, blocked or deleted.

smartblue AG reserves the right to use customer data particularly for the purposes of statistical evaluations as well as to provide customers with information and further develop the company’s web portal as well as for creating usage profiles. The customer can reject this use of their personal data at any time.

System-related data

The customer authorises smartblue AG to store as well as process and use the data received from the customer and their measuring hardware in anonymised form. The anonymised processing and use of the data may be carried out for the further development of the applied error algorithms and the service provided by smartblue AG in general, for market research and for comparisons with measuring data from other systems. The customer affirms that they hold the rights of use for the received measuring data and are authorised to grant the aforementioned rights of use.

In accordance with the contractual duty of cooperation, the customer shall make the following data available in particular:

Customer master data, which enables smartblue to assign the customer to their PV system(s)
Data relating to the technical configuration of the PV system monitored by smartblue
Measured values relating to the monitored PV system

Obligations of the customer (data security and confidentiality)

The customer undertakes to carefully store the access information and passwords assigned to them so they are protected against third-party access, to not pass them on to unauthorised persons and to place their customers under a corresponding obligation. The password must be changed immediately if you suspect that non-authorised third parties have gained knowledge of them. The customer also undertakes to inform smartblue AG promptly if a password needs to be changed or there is evidence of misuse.

The customer undertakes to maintain confidentiality with respect to all knowledge regarding smartblue AG that becomes available to them in the course of fulfilling the contract and to not make this information available to third parties. Neither party may exploit business or trade secrets of the respective other party that become known to them during the business relationship or share these with third parties without the consent of the affected party, unless the business or trade secrets are generally accessible. The same also applies for the period after the contract has been concluded.