General Terms and Conditions
Briennerstraße 59, 80333 Munich
1 Validity of the conditions
1.1 The services and offers of StudySmarter GmbH – hereinafter referred to as StudySmarter – for addressing university students and pupils on the StudySmarter learning platform shall be provided exclusively on the basis of these General Terms and Conditions, unless the individual contracts contain deviating provisions.
1.2 The Terms and Conditions shall apply mutatis mutandis to the non-digital addressing of students and pupils in the context of e.g. hackathons.
1.3 The General Terms and Conditions listed below shall become a contractual component of the respective individual contracts that StudySmarter concludes with the respective contractual partners.
1.4 StudySmarter shall only recognize general terms and conditions of the contractual partner that conflict with or deviate from the General Terms and Conditions of Business if StudySmarter expressly agrees to their validity in writing.
1.5 StudySmarter is entitled to amend, revise or supplement the General Terms and Conditions.
1.6 By signing the contract, the contractual partner has acknowledged and accepted StudySmarter’s General Terms and Conditions.
2 Offers, Conclusion of Contract
2.1 Offers made by StudySmarter are always subject to confirmation.
2.2 The addressee of the offer agrees to treat the offer submitted to it confidentially and not to disclose it to third parties without the written consent of StudySmarter. The addressee is strictly prohibited from disclosing the offer to unauthorized third parties or to StudySmarter’s competitors without StudySmarter’s approval, and will be legally penalized by StudySmarter for any violation.
2.3 The contract shall only come into effect upon acceptance by StudySmarter by means of a written confirmation of the contract or upon the first act of performance.
2.4 If the parties agree in writing to a deviating provision from the conclusion of the contract described above in the individual contract, this deviating provision shall apply.
2.5 StudySmarter is entitled to use third party service providers to provide parts or the entire range of services.
3 Prices, payment modalities
3.1 The prices stated in the individual contracts plus the currently applicable statutory value-added tax shall apply.
3.2 In the event that prices are not expressly agreed in the (individual) contracts, StudySmarter’s media prices valid on the day of performance shall be charged plus the currently applicable statutory value-added tax.
3.3 StudySmarter reserves the right to change agreed, announced or offered prices and rates accordingly if, after conclusion of the contract or announcement of the prices and rates, costs are reduced or increased, in particular due to price increases at third-party companies used by StudySmarter for the execution of the contract.
3.4 StudySmarter shall notify the Contractual Partner in writing of any price changes.
3.5 The due date of the payments to be made shall be determined by the payment date specified in the respective individual contract.
3.6 If no payment date is specified in the (individual) contract, the agreed fee shall be due 2 weeks before the start of the campaign. Invoicing shall also take place on this date.
3.7 StudySmarter reserves the right to demand advance payments, and all claims StudySmarter has against the respective contractual partner shall become due immediately if the payment dates and deadlines are not met by the contractual partner or if there is a significant deterioration in the financial circumstances of the contractual partner.
3.8 Bank transfer is generally accepted as payment method. Payments with debt-discharging effect shall be made exclusively to the accounts specified on the invoice. The date of the value date of the payment on StudySmarter’s account shall be decisive. In exceptional cases, which can be determined solely by StudySmarter, StudySmarter shall also accept cash payment.
4 (Cooperation) Duty of the Contractual Partner
4.1 In the event that the execution of the contract is dependent on the cooperation of the contractual partner, such as the timely and complete provision of suitable advertising content, the contractual partner shall be obligated to provide such content without being requested to do so, in a timely manner and in full. Otherwise, StudySmarter shall be entitled, at its discretion, to postpone the execution of the contractual performance until the next possible free execution period.
4.2 The contractual partner shall be responsible for any additional costs that may arise, in particular in the event of late cooperation.
4.3 The contracting partner shall provide StudySmarter with the necessary information regarding any other requirements within its sphere of responsibility.
4.4 The public body has a fundamental right of veto or objection with regard to all advertising content.
4.5 StudySmarter shall not be subject to any duty to review the advertising content provided with regard to the content listed under § 4.6, and with regard to any infringement of copyrights and/or trademark rights or other rights of third-parties.
4.6 The contracting party assures that the advertising content made available does not contain any content that is relevant under criminal law, harmful to minors, pornographic, in particular anti-women and anti-male motifs, illegal, discriminatory, political or contrary to public morals, or that infringes industrial property rights, copyrights and/or trademark rights or other rights of third-parties.
4.7 In the event of a violation of § 4.6 of these General Terms and Conditions, the respective contractual partner undertakes to indemnify StudySmarter against all related liabilities and claims of third parties.
4.8 StudySmarter shall be entitled, insofar as it detects violations of the aforementioned specifications prior to execution of the contract, to oblige the contractual partner to provide lawful material. If the contractual partner fails to comply with this obligation within a period of 2 weeks, StudySmarter shall be entitled to withdraw from the contract. In this case, the contracting partner shall reimburse StudySmarter for all costs incurred up to that point.
4.9 The contracting partner shall bear the expenses incurred by the fact that work must be repeated or is delayed as a result of its incorrect, subsequently corrected or incomplete information provided by StudySmarter.
4.10 To the extent necessary, the contractual partner shall provide third-party consents.
5 Making the advertising content available
5.1 The respective contractual partner shall generally provide StudySmarter with the Advertising Content free of charge for the execution of the contract in due time on the date specified in the respective individual contract.
5.2 If the Advertising Content contains content not permitted under § 4.6 or if the Advertising Content is objected to or prohibited by the public body due to the protection of university interests or due to its general right of veto or objection, StudySmarter shall not broadcast the Advertising Content provided.
5.3 If the advertising content arrives late at StudySmarter, the contracting partner shall in this case bear the full contractually agreed fee, in particular the additional costs resulting from the delay. StudySmarter reserves the right to assert further damages for delay.
6 Delayed payment
6.1 If the fulfilment of the payment claim is at risk due to a deterioration in the financial circumstances of the contracting party that has occurred or become known after the conclusion of the contract, StudySmarter may demand advance payment and immediate payment of all outstanding invoices, including those not yet due, withhold Advertising Content that has not yet been sent, and discontinue further work on orders that are still in progress.
6.2 In the event of late payment by the contractual partner, StudySmarter shall be entitled to charge a flat rate of 10.00 GBP for each written reminder. StudySmarter shall charge interest on arrears at a rate of 5 or 8 percentage points above the respective base interest rate, depending on the legal position of the contractual partner. They shall be set higher or lower if StudySmarter proves a charge with a higher interest rate or if the Contractual Partner proves a lower charge.
6.3 In the event of further delay by the contracting partner, StudySmarter shall be entitled to terminate the contract without notice and to demand compensation from the contracting partner for any damages incurred as a result of the termination or non-performance.
6.4 This shall not preclude StudySmarter from asserting further damages for default.
6.5 StudySmarter shall be entitled to discontinue the playout or publication of the advertising content on the media or to delete the advertising content on the media upon expiration of the due date and further default in payment without further notice.
- 7 Offset, assignment
7.1 If the contractual partner is a merchant, a legal entity under public law or a special fund under public law, the retention of payments due to any counterclaims of the contractual partner not recognized by StudySmarter is not permitted, nor is the offsetting of such claims.
7.2 The contracting partner may only set off claims that are undisputed or have become res judicata.
7.3 The contractual relationship established with StudySmarter or individual claims arising from this contractual relationship may only be transferred by the contractual partner to third parties with StudySmarter’s written consent.
8 Impossibility/warranty, force majeure
8.1 Should the performance of the contractual services become impossible during the contractually agreed term due to a circumstance for which the contractual partner is responsible, the contractual partner shall pay the entire contractual amount.
8.2 Complaints concerning StudySmarter’s contractual services may only be made during the term of the individual contract in writing to the address of StudySmarter, Loristraße 14, 80335 Munich.
Minor deviations from the booked playout of the advertising content on the media shall be at the expense of the contractual partner.
8.3 Force majeure, such as strikes, natural disasters, extraordinary weather conditions (storms, cold and rainy periods, etc.), pandemics, etc., shall entitle StudySmarter to suspend its contractual obligations and to postpone the playout of the Advertising Content until the end of the force majeure/extraordinary event or until such time as the playout of the Advertising Content is possible again.
9.1 StudySmarter reserves the right not to circulate the advertising content provided by the contractual partner if, contrary to the contractual agreement, it contains content that is relevant under criminal law, harmful to minors, pornographic, in particular misogynistic and anti-male motifs, illegal, discriminatory, political and immoral content, or violate copyrights and/or trademark rights or other rights of third parties, or if the public body makes use of its general right of veto or objection, or if it does not consider its university interests to be protected. The rights of StudySmarter mentioned in § 4.8 remain unaffected.
9.2 Liability for a specific advertising success is excluded.
9.3 The contractual partner has no guaranteed right to the booked media. In the event that the booked media or its space is not available for reasons for which StudySmarter is not responsible, in particular if the public body or the competent authority carries out construction measures on the booked areas or the public-law entity has priority rights to the areas, are or become unavailable, StudySmarter shall endeavour to provide the contracting partner with reasonably available substitute areas. If no reasonable substitute space is available, StudySmarter grants the contracting partner the right to withdraw from the contract. The contracting partner shall remain obligated to pay the corresponding fee for advertising periods used.
9.4 StudySmarter shall be entitled to withdraw from the contract if the public body or the competent authority, in order to safeguard university interests or within the scope of its general right of veto and objection, prohibits the contractual services. In such a case, StudySmarter shall immediately remit to the contractual partner any contractual fees already paid by the contractual partner for advertising periods or broadcast times not yet used.
9.5 The contractual partner shall not be entitled to claim the production costs of the advertising content or compensation claims against StudySmarter if
9.5.1 the public-law body or the competent authority, in order to safeguard university interests or within the scope of its general veto and objection rights, prohibits the advertising content,
9.5.2 the public body prohibits certain advertising content that violates § 4.6 of these General Terms and Conditions in order to safeguard university interests;
9.5.3 StudySmarter is unable to fulfil the contract for reasons for which it is not responsible.
9.6 The contractual partner represents and warrants to StudySmarter that it has unrestricted rights to use, pass on and distribute/publish all advertising content provided and that no third-party rights are infringed.
9.7 The contractual partner shall also be liable for ensuring that no industrial property rights, copyrights and/or trademark rights or other rights of third-parties are impaired by the advertising content. If StudySmarter is held liable by third-parties for infringement of rights, the contractual partner shall indemnify StudySmarter against all related liabilities and claims.
9.8 StudySmarter and its vicarious agents and assistants shall fundamentally be liable without limitation only for intent and gross negligence. In the absence of intent or gross negligence, StudySmarter and its vicarious agents shall be liable – irrespective of the legal grounds – only up to a maximum liability amounting to the contractually agreed remuneration.
9.9 Any further liability on the part of StudySmarter and its vicarious agents and persons employed by it, in particular for damages that did not occur to the provided advertising content/spots themselves, for lost profits or other financial losses of the contractual partner shall be excluded.
9.10 The contractual partner may prove that damage or a reduction in value has been incurred to a greater extent.
9.11 Force majeure, such as strikes, natural disasters, exceptional weather conditions (storms, cold and rainy periods, etc.), pandemics, etc., shall release StudySmarter from any liability.
10 Term and termination
10.1 StudySmarter has the right to terminate the contract without notice for good cause.
10.2 Good cause shall be deemed to exist in particular,
10.2.1 in the event of serious or continued violations of the provisions contained in these General Terms and Conditions, as well as in the event of impracticability of the contract,
10.2.2 if the contractual partner delays on a not insignificant portion of the remuneration,
10.2.3 if the contractual partner becomes insolvent or if insolvency proceedings are opened against its assets or if the application for the opening of insolvency proceedings is rejected due to lack of assets.
10.3 The termination must be in writing to be effective.
10.4 The term of an individual contract shall generally be 12 months from the date of activation of the material (hereinafter referred to as initial term), unless otherwise agreed in writing. If the contract is not terminated at least four weeks before the end of the initial term or an extension period, the contract shall be automatically extended by a further year or the agreed period of the initial term. A profile area or campaign offered free of charge on StudySmarter may be terminated at any time, unless otherwise agreed.
10.5 Ordinary termination shall be excluded in the event of non-compliance with the notice period. However, this shall not affect the right to extraordinary termination without notice for good cause. An important reason in the sense of this contract exists in particular if the customer, despite repeated setting of a deadline, refuses to make payments of the contractually agreed remuneration and/or does not make payments on time.
10.6. Any termination must be made in writing.
11 Exclusion of competition
The exclusion of competition cannot be granted.
12 Voucher images
The contractual partner shall receive reporting from StudySmarter by the end of the booked advertising period.
13 Place of performance, place of jurisdiction
13.1 The law of the Federal Republic of Germany shall apply. In the case of consumers who do not conclude the contract for professional or commercial purposes, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the state in which the consumer has his habitual residence.
13.2 Munich is agreed as the general place of jurisdiction if the contractual partner does not have a general place of jurisdiction in Germany or if the place of residence or habitual abode is unknown at the time the suit is filed. The right to also call upon the court at another legal place of jurisdiction remains unaffected by this.
14 Effectiveness, data protection
14.1 Within the scope of the concluded contract, the necessary data of the contractual partner for billing purposes will be stored, changed and/or deleted and, if necessary, transmitted to third-parties. The contractual partner agrees to this procedure.
14.2 Subsidiary agreements, reservations, amendments, or supplements to these General Terms and Conditions shall only be valid if confirmed in writing by StudySmarter. Any deviation from this written form requirement must also be in writing.
15 Salvatory clause
Should any provision of these General Terms and Conditions be or become invalid or unenforceable, or should it not contain a provision that is necessary in itself, all other provisions shall remain valid. The relevant statutory provisions shall apply in place of the invalid provision.