Standard Terms and Conditions of Soil & More Impacts GmbH

(hereinafter referred solely to as “SMI”)

These Terms and Conditions apply to the contracts concluded between Soil & More Impacts GmbH, Buttstraße 3, 22767 Hamburg, German commercial register number “HRB 163519”, represented by its Managing Director Tobias Bandel and its contractual partners, unless otherwise explicitly agreed by written agreement.

Part A.

1. Standard Terms for Consulting Services

1.1 The terms contained in Paragraphs 1 to 9 apply to all SMI’s consulting quotations and to all contracts between SMI and its contractual partners, irrespective of the content and legal nature of the services offered or contractually undertaken by SMI.

1.2 Insofar as SMI’s consulting contracts or quotations contains terms that deviate from the following Standard Terms and Conditions, the individually agreed contractual provisions will take precedence over these Standard Terms and Conditions.

2. Duties of cooperation of contractual partners

2.1 To enable SMI to deliver its services, the contractual partners of SMI will provide it with the most comprehensive information possible regarding the enterprise’s business, organisational, technical and competitive situation, as well as its agricultural practices. Contractual partners undertake to cooperate as follows, especially in connection with a project and its performance:
a. All questions from SMI employees regarding the actual situation and agricultural practices within the enterprise and/or the corporate group will be answered completely, accurately and promptly, and questionnaires issued by SMI in this connection will be completed in full. The same applies to questions from SMI employees regarding the actual situation and the agricultural practices between the contractual partners and corresponding business partners, insofar as the contractual partners’ circumstances are known and necessary for the performance of the project.

b. Contractual partners undertake to also voluntarily inform SMI as early as possible about those circumstances that may be of relevance to the project.
2.2 Contractual partners must promptly examine any interim results and interim reports delivered by SMI to ascertain if the information contained therein is accurate with respect to them and their enterprise. Any necessary corrections must be notified in writing to SMI without delay.

3. Premature termination of contract, payment

3.1 The consulting contract agreed on the basis of these Terms and Conditions, shall be concluded for an indefinite period. It will automatically end with the achievement of the agreed objectives or the delivery by SMI of the agreed services.
3.2 The contract may be terminated by either party with a notice period of three months to the month’s end. The premature termination of the contract does not affect agreed duties of non-disclosure and other such post-contractual good faith obligations.

3.3 The contract may be extraordinarily terminated by either party for good cause without notice.

3.4 Contractual partners will pay SMI the agreed fee and the agreed expenses incurred for SMI’s services delivered up to the time of the premature termination.

3.5 The fee calculation basis is the relevant, generally applicable day rates of the consultants deployed by SMI for the specific project, or the services delivered up to the time of the termination and, in this case, the relevant applicable fee rates and other prices according to the relevant quotation. In this respect, one consulting day comprises 8 hours on average. Consulting days delivered with a lower or higher number of hours, will be proportionately billed on an hourly basis. Consultants’ travel time will be billed according to the quotation.

3.6 If the contractual partner makes significant changes or additions to job orders compared to the originally agreed scope of performance, the contractual partner will reimburse all the resulting additional costs and pay for SMI’s additional services over and beyond the contractually agreed remuneration (additional fee). In such a case, SMI will notify the contractual partner in advance and request the contractual partner’s approval in writing. The additional fee amount will be calculated according to the contractual remuneration and the actual cost.

4. Invoicing, payment

4.1 Prices does not include the applicable statutory rate of value-added tax or the travel costs actually incurred. SMI must provide the contractual partners with proof of these travel costs. Travel costs when using own car are billed at 0.40 euro/km.

4.2 Invoices are issued according to project progress, or in accordance with any agreed project and payment milestones. Once the relevant project step has been reached, SMI will inform the contractual partners that this step is complete and bill accordingly.

4.3 Invoices issued in compliance with the contract, are due for payment within 30 days.
4.4 If contractual partners are in arrears with the settlement of due payments, SMI shall be entitled to cease work on the project until payment is made, or refuse commencing delivery of further services. In this case, SMI will give the contractual partner advance notification in writing.

4.5 If contractual partners are in arrears with the payment of due payments, SMI shall be entitled to charge interest on arrears at the rate of 10% p.a. Contractual partners have the right to prove that the actual loss amount was less. This does not affect the possibility for SMI to assert additional claims arising from the arrears in payment.

5. Impediments to performance, delay, impossibility

5.1 SMI will be in default with the delivery of service only if these particular completion dates were agreed as fixed dates, and SMI is at fault for the delay. SMI shall not be at fault for force majeure and other events not foreseeable at the time of the conclusion of contract and which make it impossible or untenably difficult, at least temporarily, for SMI to deliver the agreed service.

5.2 If the impediments to service are temporary in nature, SMI shall be entitled to postpone the fulfilment of the contractual obligation for the duration of the hindrance plus a reasonable additional period of time. On the other hand, if impediments as described in Paragraph 5.1, make it permanently impossible for SMI to deliver the service, SMI shall be released from its contractual obligations.

5.3 If SMI is at fault for the delay or the impossibility, Paragraphs 6.2 to 6.5 will additionally apply.

6. Warranty, liability

6.1 SMI accepts no liability if, and to the extent that any consulting errors and/or defects in the work delivered by SMI arise because contractual partners failed to fulfil all or some of their duties of cooperation as defined in Paragraph 2, or did so incorrectly or out of time. Contractual partners must prove the complete, and correct and scheduled fulfilment of all duties of cooperation. SMI likewise accepts no liability for any damage or loss sustained by the contractual partners because of a failure to observe any duties of protection within their sphere of responsibility.

6.2 If its governing entities or employees have acted with ordinary negligence, SMI will be liable for the damage or loss sustained by the contractual partners only if, and to the extent that the damage or loss is attributable to the breach of such obligations, the fulfilment of which is unconditionally necessary for the achievement of the purpose of the contract. SMI is otherwise liable for damage or loss resulting from delay, impossibility of performance, a positive breach of a contractual duty, breach of good faith in entering the contract, or based on the law of tort, only if, and to the extent that SMI caused this intentionally or through gross negligence. Liability for culpably causing death or personal injury remains unaffected; this applies equally to strict liability imposed under the Product Liability Act.

6.3 In the case of any culpable breach of a material contractual obligation, SMI’s liability shall be limited to foreseeable, typical damage and loss.

6.4 The limitations described in Paragraphs 6.2 and 6.3 do not apply if, and to the extent that claims for damages are based on the absence of guaranteed characteristics in any work to be delivered by SMI.

6.5 Any possible claims for damages against SMI will expire after three years at the latest. This limitation period commences at the time any damage becomes identifiable, but no later than upon the completion of the activity in accordance with the contract. Paragraph 11.3 remains unaffected.

7. Choice of law, contractual partners’ standard terms and conditions

7.1 Only German law shall apply alongside any individual agreements and these terms.

7.2 These Standard Terms and Conditions apply exclusively. SMI does not recognise the contractual partners’ contrary or alternative terms, unless SMI has explicitly agreed that these terms are applicable.

7.3 If any of the individual terms of the contract or the Standard Terms and Conditions of SMI prove to be invalid or unenforceable, this shall not affect the remainder of the contract. It is agreed that the invalid or unenforceable provision is deemed to be substituted for one that most closely corresponds to the invalid or unenforceable provision, based on an objective consideration of the commercial purpose. Any gaps in the contract will be similarly resolved.

8. Safeguarding confidentiality

8.1 SMI will treat as confidential all information from its contractual partners concerning their business as received in connection with the collaboration, provided this information is not in the public domain. The same applies to knowledge of the contractual partners’ in-house business operations, made known to SMI through the collaboration. All the aforementioned obligations likewise apply to contractual partners in relation to the information received from SMI in connection with the collaboration.

8.2 This mutual duty of non-disclosure will also endure after the contract is ended. SMI may use the enterprise data of the contractual partners in an anonymised form for statistical purposes, or in order to enhance the meaningfulness of the digital products developed and used by SMI.

Part B. Supplementary Terms for Works

9. Scope of Paragraphs 9 to 11

9.1 The provisions contained in Paragraphs 9 to 11 apply alongside Paragraphs 1 to 8, to SMI’s consulting quotations and contracts for preparing analyses, reports, studies, SMImonitor and SMIrisk and similar works, if, and to the extent that SMI’s remuneration according to the contract, also depends on the production of one or more works.

9.2 The provisions contained in Paragraphs 9 also apply alongside Paragraphs 1 to 8, to corresponding part services of SMI, if these are demarcated in the quotation or contract from SMI’s other services, for example according to an incremental or phase-based approach.

10. Acceptance of works

10.1 SMI presents the work produced in accordance with the contract to the contractual partners. If, for any other reason than a prompt and justified complaint, contractual partner refuse to accept the work at the time it is presented or otherwise made available, and an objection is not subsequently established within two days from the time the work is presented or otherwise made available, the work will be deemed accepted. Any use of the work by the contractual partners is deemed to be an acceptance.

10.2 If the characteristics of the work preclude a standard acceptance procedure, this shall be replaced by a notification from SMI to the contractual partners regarding the completion of the work.

10.3 The preceding rules on acceptance correspondingly apply to any separately definable partial services of SMI within individual service phases as may be agreed in the consulting contract, insofar as separate acceptance or presentation dates have been agreed for these types of part services.

11. Fault reporting, warranty, liability

11.1 Any defects in the work and the absence of any guaranteed characteristics in the work must be promptly reported in writing to SMI following discovery. Otherwise the warranty claim will be extinguished.

11.2 Contractual partners may initially only demand free-of-charge subsequent improvement under the terms of the warranty. If no subsequent improvement is performed within a reasonable period of time, or if it proves unsuccessful, contractual partners may demand a price reduction or cancellation of the contract with respect to those elements of the contract affected by the defect.

11.3 The limitation period for works (definition in Paragraph 9) is based on Section 638 German Civil Code (Bürgerliches Gesetzbuch, BGB), and, contrary to Paragraph 6.5, it commences with the acceptance of the work (cf. Paragraph 10). Otherwise, the provisions contained in Paragraph 6 remain unaffected.

Part C. Supplementary Terms for SMImonitor and SMIrisk

12. Use of SMImonitor and SMIrisk

12.1 Where a relevant contractual agreement is made, SMI enables contractual partners, in return for a fee, to use SMImonitor and SMIrisk for the purpose of utilising the data analysis results for a period of one year, commencing with the communication of a link, along with a user name and password.

12.2 SMI grants contractual partners a non-exclusive, fixed-term, non-transferable right for this purpose. There is no entitlement to specific queries or analysis options.

12.3 The results of the data analysis may be stored and further processed by contractual partners. It is permitted to copy, reproduce and save the results of the data analysis to data processing equipment, and to use SMImonitor and SMIrisk in other systems.

12.4 In return for the use of SMImonitor and SMIrisk, an annual fee will be charged to compensate SMI’s costs in creating access to SMImonitor and SMIrisk, and for making these available online. The amount of the annual fee will be set out in the relevant quotation.

12.5 SMI is entitled to re-calculate the fee due to changed circumstances and to adjust it to the new fees after written consent by the contractual partners. The right to an extraordinary termination (for good cause) remains unaffected.

12.6 The payable right to use SMImonitor and SMIrisk will be renewed for a further 12 months respectively unless the contract is terminated in writing at least one month prior to the end of the relevant contractual term. The right to an extraordinary termination (for good cause) remains unaffected.

12.7 The annual payments for the continued use of SMImonitor and SMIrisk will be billed in accordance with the quotation. If contractual partners are in arrears with the payment, SMI shall be entitled to block user access to SMImonitor and SMIrisk, and terminate the contract following prior notification.

12.8 The 1st level support is provided by SMI or a third party commissioned by SMI. The service hours of the 1st level support are weekdays from 10:00 – 16:00 (except on national holidays).

12.9 Everything else is governed by the general terms of use of SMImonitor and SMIrisk.

Part D. Concluding provisions

13.1 No subsidiary oral agreements exist; in order to be enforceable, amendments and additions must be made in writing. Unless otherwise agreed, email communication suffices to fulfil the written form requirement for the purpose of these terms.

13.2 The place of jurisdiction for all legal actions by a commercial contractual partner against SMI, is Hamburg. SMI is, nevertheless, entitled to sue contractual partners at their registered address.

13.3 SMI may publish reasonable information, customary within the sector, regarding the services and service results delivered by it, and refer in a general form to the contractually delivered services for the purposes of its own advertising. In doing so, it must safeguard the contractual partners’ interest in confidentiality and respect the non-disclosure agreement.

13.4 SMI may also include contractual partners in a list of references, and publish said list (including online).

13.5 Contractual partners will grant SMI non-chargeable, non-transferable, worldwide rights of use, unlimited in time, to any marks such as trademarks or copyright-protected works such as texts, images, logos etc. The rights defined in Paragraph 13.3 to 13.5 will apply undiminished following the end of the contractual relationship unless contractual partners explicitly repudiate this.


Updated: April 2021