Terms and Conditions
Note: This is a translation of the legally binding German version. In case of discrepancies, the German text prevails.
§ 1 Scope
(1) These General Terms and Conditions apply to all contracts between Smart Zollagentur GmbH, Königsallee 27, 40212 Düsseldorf, Germany (hereinafter “Service Provider”) and its clients (hereinafter “Customer”) concerning services in the areas of customs handling, export clearance, ATLAS declarations, export declarations, customs consulting, and related services, including the use of the online platform at app.smart-zoll.de (hereinafter “Platform”), regardless of whether it is used with or without a customer account.
(2) Deviating terms of the Customer apply only if the Service Provider expressly agrees to them in writing.
(3) The Service Provider may amend these Terms and Conditions with effect for the future to the extent this is necessary for objective reasons, in particular due to changes in the law, case law, customs procedures or the functions of the Platform, and does not unreasonably disadvantage the Customer. The Service Provider notifies the Customer of amendments in text form at least six weeks before they take effect. If the Customer does not object in text form before they take effect, the amended Terms and Conditions are deemed accepted; the Service Provider specifically points this out in the notification. If the Customer objects, the Service Provider may terminate the usage agreement (§ 8 (1)) with four weeks’ notice. Amendments to the scope of services, the remuneration or liability require the Customer’s express consent.
§ 2 Scope of services
(1) The Service Provider undertakes, on behalf of the Customer, the preparation and submission of customs declarations, in particular import declarations and export declarations via electronic customs systems (ATLAS I Scope – Riege).
(2) The specific scope of services results from the respective individual order.
(3) The Service Provider renders its services as a direct or indirect representative within the meaning of customs law, unless otherwise agreed in writing.
(4) The Service Provider makes the Platform available to the Customer via the internet for placing orders and entering the required data.
§ 3 Registration, eligible customers
(1) The Platform and the services of the Service Provider are intended exclusively for businesses (Unternehmer within the meaning of Section 14 of the German Civil Code, BGB), legal entities under public law and special funds under public law. Consumers within the meaning of Section 13 BGB are excluded from use.
(2) When registering and when placing orders, the Customer is obliged to provide complete and truthful information, in particular on its company name, legal form, address, EORI number, the identity of the acting user and the nature of its business, and to notify any changes without undue delay.
(3) The Service Provider is entitled to verify the Customer’s information and to request suitable evidence, such as an extract from the commercial register or a business registration. There is no entitlement to the conclusion of a contract or to the activation of a customer account.
(4) When registering and whenever placing an order without a customer account, the Customer makes a separate declaration that it is not a Competitor within the meaning of § 4 (2), does not act at the instigation, on behalf or for the account of a Competitor, and uses the Platform exclusively for its intended use (§ 4 (1)). If, after conclusion of the contract, circumstances arise that render this declaration incorrect, in particular the commencement of a competing activity or a Competitor acquiring an interest in the Customer, the Customer must notify the Service Provider in text form without undue delay.
(5) If there are concrete indications of a violation of § 4, the Service Provider may require the Customer to provide information in text form within ten working days on (a) its shareholders and beneficial owners, (b) any connections to Competitors within the meaning of § 4 (2), and (c) the persons who have accessed the Platform via its customer account, and to provide suitable evidence. The Service Provider treats this information confidentially (§ 14). If the Customer fails to provide the information in due time, this constitutes a concrete indication within the meaning of § 7 (2).
§ 4 Intended use
(1) The Platform is provided exclusively for preparing and submitting customs declarations for the Customer’s goods or – where the Customer is a customs service provider – for the goods of its clients (intended use).
(2) A Competitor within the meaning of these Terms and Conditions is anyone who develops, offers or distributes software or online services with which third parties can prepare or submit customs declarations, or who specifically prepares to do so, as well as any company affiliated with such a company within the meaning of Section 15 of the German Stock Corporation Act (AktG). A customs service provider or freight forwarder is not a Competitor merely because it submits customs declarations for its clients or uses third-party software for this purpose. Competitors and persons acting at the instigation, on behalf or for the account of a Competitor are prohibited from using the Platform; they may not register or place orders.
(3) The Customer may not use the Platform to develop, improve or replicate a product competing with the Platform. Furthermore, the Customer may not use the Platform to provide third parties with information about the structure, workflows, content or performance features of the Platform for the purpose of developing a competing product. Systematic use for competitive monitoring beyond the Customer’s own need for customs declarations is prohibited. Publishing performance comparisons (benchmarks) naming the Service Provider requires the Service Provider’s prior consent in text form.
(4) Mandatory rights of the Customer under Sections 69d and 69e of the German Copyright Act (UrhG) remain unaffected.
§ 5 Prohibited acts
The Customer is prohibited from
- a) decompiling, disassembling or otherwise reverse engineering the Platform or any part of it, unless this is mandatorily permitted under Section 69e UrhG;
- b) systematically extracting, storing or copying content of the Platform by automated means (e.g. bots, crawlers, scrapers), except via the interface (API) provided by the Service Provider to the extent agreed. Automated entry of the Customer’s own declaration data is permitted, provided it does not place an excessive load on the Platform;
- c) systematically capturing, reproducing or documenting texts, help texts, explanations, examples, templates, validation rules, screen layouts, workflows and other design elements of the Platform (for instance through series of screenshots or screen recordings), incorporating them into its own or third-party software, documentation or offerings, or making them available to third parties for that purpose. Use in the course of the Customer’s own customs declarations, internal documentation and training, disclosure to advisers bound by confidentiality, and submission to authorities and courts remain permitted. Declarations prepared by the Customer and the related documents are not covered by this provision;
- d) passing on access credentials to third parties or enabling persons who are not users of the Customer to access the Platform; each user must use their own personal user account;
- e) leaving access credentials unprotected; the Customer must protect them against unauthorised access and inform the Service Provider without undue delay if there are indications of misuse;
- f) circumventing a suspension or termination, in particular by registering again or placing orders – including via affiliated companies or third parties – after a suspension or termination under § 7 without the Service Provider’s prior consent in text form, or by causing third parties to use the Platform for a purpose prohibited under § 4.
§ 6 Rights to the Platform
(1) The Platform, including software, user interface, screen design, workflows, texts, help texts, explanations, examples, templates, validation rules, databases and their structure, and signs and trademarks, is, to the extent protected by law, attributed exclusively to the Service Provider or its licensors. To the extent components are not protected by law, the Customer undertakes vis-à-vis the Service Provider to use them only within the scope of the intended use.
(2) The Customer receives the non-exclusive, non-transferable and non-sublicensable right to use the Platform and its content within the scope of the intended use (§ 4 (1)) for the duration of the usage agreement (§ 8 (1)) or, when using the Platform without a customer account, for the duration of processing the respective individual order. No further rights are granted.
(3) The data entered by the Customer remains attributed to the Customer. The Service Provider uses it to perform the contract and – in compliance with § 13 – to detect, prevent and pursue violations of these Terms and Conditions and misuse of the Platform; for this purpose it may log and evaluate access and usage events.
(4) The Service Provider reserves the use of the Platform’s content for text and data mining pursuant to Section 44b (3) UrhG.
§ 7 Suspension and termination for cause
(1) The right of both parties to terminate for good cause (Section 314 BGB) remains unaffected. Good cause for the Service Provider exists in particular if the Customer
- a) violates § 4 (2) or (3) or its declaration under § 3 (4) is incorrect,
- b) intentionally provided incorrect information when registering or placing an order, in particular regarding its identity, the nature of its business or its status as a Competitor, or
- c) violates § 5 seriously or repeatedly despite a warning.
In the cases of letters a and b, a prior warning is generally not required (Section 314 (2) BGB), because the basis of trust required for continuing the contract no longer exists.
(2) If there are concrete indications of a violation within the meaning of paragraph 1, the Service Provider is entitled to temporarily suspend the Customer’s access to the Platform in whole or in part, to the extent this is reasonable taking into account the Customer’s legitimate interests. The Service Provider informs the Customer of the suspension and its reason without undue delay, gives the Customer the opportunity to comment and reviews the suspension without undue delay after receiving the comment. The suspension is lifted as soon as the suspicion has been dispelled; otherwise the Service Provider decides on termination within four weeks.
(3) The Service Provider duly completes declarations already submitted to the customs administration, even during a suspension and after termination. It keeps the official customs documents, in particular the export accompanying document and the exit confirmation, as well as the declaration data available for retrieval by the Customer for at least six months after the end of the contract and transmits them in a common format upon request. Services already paid for but not yet rendered will be refunded. Claims of the Service Provider for damages and contractual penalties remain unaffected.
§ 8 Term, continuing obligations, users
(1) The agreement on the use of the Platform with a customer account (usage agreement) is concluded for an indefinite period and may be terminated by either party at any time with 14 days’ notice in text form. Individual orders placed before the termination takes effect will be completed. When the Platform is used without a customer account, these Terms and Conditions apply to the respective individual order.
(2) § 4 (3), § 5 b), c) and f), § 6 (1), § 9 and § 14 continue to apply after the end of the contract; § 14 for a period of five years.
(3) The Customer obliges its users to comply with §§ 4, 5 and 14. It is liable for their acts and for the acts of all persons to whom it gives access to the Platform as for its own acts.
§ 9 Contractual penalty
(1) If the Customer culpably violates § 4 (2) or (3) or § 5 b), c), d) or f), or if its declaration under § 3 (4) is culpably incorrect, the Customer shall pay the Service Provider a contractual penalty for each violation. Fault on the part of its legal representatives, employees, users and other vicarious agents is equivalent to its own fault.
(2) The amount of the contractual penalty is determined by the Service Provider at its equitable discretion (billiges Ermessen, Section 315 BGB). Relevant factors include in particular the nature, duration, extent and seriousness of the violation, the degree of fault, the benefit to the Customer or third parties, and the Service Provider’s interest in protecting the Platform against imitation; the value of individual orders is not decisive. The contractual penalty amounts to a maximum of EUR 50,000 per violation, and to a maximum of EUR 5,000 for violations solely of § 5 d). The Customer may have the competent court review whether the amount determined is equitable.
(3) Several acts based on a single decision and closely connected in time and substance constitute one violation.
(4) The contractual penalty is credited against any claim for damages arising from the same violation. Further claims for damages, injunctive relief, removal and information, including under the German Act against Unfair Competition (UWG) and the German Trade Secrets Act (GeschGehG), remain unaffected.
(5) The claim to the contractual penalty also exists after the end of the contract if the violation was committed before the end of the contract or breaches an obligation continuing under § 8 (2).
§ 10 Customer’s duties to cooperate
(1) The Customer is obliged to provide all information and documents required for the performance of the order completely, correctly, and in due time.
(2) The Customer bears sole responsibility for:
- the accuracy of the goods information
- tariff classification
- customs values
- origin declarations
- permits and licences
- embargo and sanctions checks
(3) The Service Provider is not obliged to verify the substantive accuracy of the data submitted by the Customer.
§ 11 Liability
(1) The Service Provider is liable without limitation for intent and gross negligence, for damages arising from injury to life, body or health, under the German Product Liability Act, in the event of fraudulent concealment of a defect, and to the extent of any guarantee assumed.
(2) In cases of ordinary negligence, the Service Provider is liable only for the breach of an essential contractual obligation, i.e. an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the Customer may regularly rely. In this case, liability is limited to the damage that was foreseeable and typical of the contract at the time the contract was concluded.
(3) Otherwise, the Service Provider’s liability is excluded.
(4) The Customer indemnifies the Service Provider against third-party claims based on incorrect or incomplete information provided by the Customer for which the Customer is responsible.
§ 12 Remuneration
(1) Remuneration is governed by the price list in force at the time or by individual agreement.
(2) Invoices are payable without deduction within 14 days of the invoice date, unless otherwise agreed.
(3) In the event of late payment, the Service Provider is entitled to charge default interest at the statutory rate.
§ 13 Data protection
(1) The Service Provider processes personal data exclusively within the framework of the applicable data protection laws, in particular the General Data Protection Regulation (GDPR).
(2) Where required, the parties shall conclude a separate data processing agreement.
§ 14 Confidentiality
(1) Confidential information is all non-public information that a party obtains in the course of the cooperation. For the Service Provider, this includes in particular the content of the Platform accessible only to logged-in users (help texts, templates, validation rules, workflows, interface descriptions) as well as individually agreed prices and conditions; for the Customer, in particular shipment, business and declaration data.
(2) The parties use confidential information only to perform the contract and do not disclose it to third parties. This does not apply to information that (a) is or becomes publicly known without breach of this obligation, (b) was demonstrably already known to the recipient, (c) must be disclosed due to a statutory obligation or an order of an authority or court, or (d) is disclosed to advisers bound by confidentiality.
(3) Claims under the German Trade Secrets Act (GeschGehG) remain unaffected.
§ 15 Force majeure
The Service Provider is not liable for delays or service failures due to force majeure, in particular disruptions to customs systems (ATLAS), outages of third-party telecommunications or cloud infrastructure for which the Service Provider is not responsible, or measures taken by authorities.
§ 16 Jurisdiction, applicable law, governing version
(1) German law applies.
(2) The place of jurisdiction is, to the extent legally permissible, the registered office of the Service Provider.
(3) The German version of these Terms and Conditions is authoritative. Translations are for information purposes only.
§ 17 Severability
Should any provision of these Terms and Conditions be invalid, the validity of the remaining provisions shall remain unaffected.