General Terms and Conditions of Business and Delivery
Exclusively the following General Terms and Conditions of Business and Delivery apply to all deliveries, services, and offers of SYMESTIC GMBH within the scope of the current business relationship.
They also apply to all future business relationships between SYMESTIC GMBH and the Customer, even if they are not explicitly reaffirmed.
No terms or conditions of the Customer that deviate from these terms and conditions are acknowledged, and any counter-confirmations on the part of the Customer in reference to its business and/or purchasing conditions are hereby excluded. In case the Customer unwilling to accept the following general terms and conditions of business and delivery, this must be communicated to SYMESTIC GMBH in writing beforehand.
2. Offers, orders, contracts
Unless otherwise agreed in writing, offers of SYMESTIC GMBH are nonbinding and subject to change/valid for a period of 10 days. Declarations of acceptance and all orders must be confirmed by SYMESTIC GMBH in writing or by fax, telex or email in order to be legally valid.
The scope of delivery and/or performance must be confirmed by SYMESTIC GMBH.
The Customer’s attention is called to the fact that SYMESTIC GMBH has the right to delay confirming an order until a receivables insurer has confirmed coverage.
Drawings, figures, measures, weights and other performance data are binding only if they have been explicitly confirmed in writing.
Employees and freelance staff of SYMESTIC GMBH are not authorized to conclude any oral ancillary agreements or provide any oral assurances extending beyond the content of the written contract.
SYMESTIC GMBH reserves the right to deviate from the contractually agreed performance to the extent that such changes are reasonable for the Customer in a given case and to the extent that changes are due to the product’s further technical evolution.
3. Prices, payment terms
Unless otherwise indicated in the order confirmation, all prices are EXW in Dossenheim, Germany. The costs of shipping (packaging, transportation, customs duties, shipping insurance etc.) are borne by the Customer. Unless otherwise agreed, the contractually fixed prices do not include the statutory value-added tax applicable at the time of issuing the invoice.
Discounts may only be deducted on the basis of a special written agreement.
Unless otherwise specified in the order confirmation, the following payment conditions apply:
50% of the amount of the order is due 14 days after placing the order,
and 50% of the amount of the order is due 14 days after receipt of the final invoice.
Invoices are payable without any deductions. Whether or not payments are made on time depends on when they are received by SYMESTIC GMBH.
If the Customer is in arrears with payment, SYMESTIC GMBH is entitled to charge interest amounting to 9% above the base rate of the Deutsche Bundesbank (or the comparable interest rate of the European Central Bank) per annum. In case SYMESTIC GMBH is able to prove that the delay has incurred greater damages, it is entitled to demand compensation for these.
In the case that the Customer must effect advance payment but does so tardily, SYMESTIC GMBH has the right to demand an additional installment amounting to 5% of the amount of the order.
The Customer is entitled to offset, reserve, or reduce payment only if counterclaims have been upheld as legally binding or are undisputed, even if defects or counterclaims have been asserted.
4. SaaS products
After concluding a contract, the yearly remuneration is due within 14 days.
The term of the contract is 12 months and is extended by one year at a time unless the contract has been terminated in writing at least three months in advance.
All delivery deadlines set by SYMESTIC GMBH or the Customer are nonbinding unless a delivery deadline has been explicitly agreed in writing as binding.
SYMESTIC GMBH is not responsible for delays in delivery/performance that are due to force majeure or events that make it significantly more difficult or impossible for SYMESTIC GMBH to meet its obligations – in particular, these include strikes, lockouts, orders by the authorities etc., also when they affect suppliers of SYMESTIC GMBH or their suppliers in turn, even if time periods and deadlines have been bindingly agreed. Such circumstances entitle SYMESTIC GMBH to postpone delivery or performance, as the case may be, by the duration of the impeding circumstances or to partly or completely withdraw from the contract for the unfulfilled part of its contractual obligations. If the impediment persists for longer than three months, the Customer is entitled – after setting an appropriate new deadline – to withdraw from the contract with respect to the unfulfilled part. If the delivery deadline is extended or if SYMESTIC GMBH is freed of its obligations, the Customer may not derive any claims to damages from this. However, SYMESTIC GMBH may only cite the aforementioned circumstances as justification for this if it immediately informs the Customer of the resulting delay in delivery or performance.
- SYMESTIC GMBH has the right to make partial deliveries or partial performance at any time.
- Compliance with bindingly agreed delivery and performance obligations presupposes the timely and proper fulfillment of the Customer’s contractual obligations. If, after placing an order, the Customer should demand changes or additions to the contract or otherwise hinder SYMESTIC, the contractually agreed delivery deadlines are extended by an appropriate amount of time.
- To the extent that SYMESTIC GMBH is responsible for noncompliance with bindingly pledged deadlines, the Customer has the right to compensation for the resulting delays amounting to 0.5% for each full week of the delay up to a maximum of 5% of the invoiced sum for the deliveries and services affected by the delay.
- The Customer is only entitled to additional claims to damages due to noncompliance, amounting to the value of the predictable damages, if this noncompliance is due to intentional actions or gross negligence or a major violation of obligations.
The ordering party is obliged to accept the contractually produced software/hardware. Acceptance may not be refused on the grounds of minor defects. For purposes of acceptance, it makes no difference whether the ordering party uses the deliverables and/or deploys them in its operation for production purposes.
7. Retention of ownership
- The supplied goods remain the property of SYMESTIC GMBH until all present and future claims of SYMESTIC GMBH (including all outstanding claims from current account) vis-à-vis the Customer for any legal grounds whatsoever are satisfied. Processing or conversion takes place solely for SYMESTIC GMBH as the producer, but without any obligations on the part of SYMESTIC GMBH. If (co-)ownership by SYMESTIC GMBH lapses as a result of combination with other products, it is agreed in advance that the share (invoiced value) of the Customer ’s (co-)ownership of the new product passes to SYMESTIC GMBH.
- The Customer is obliged to treat the objects subject to retention of ownership by SYMESTIC GMBH (reserved goods) with proper care; in particular, the Customer is obliged to adequately ensure these at a sufficient reinstatement value and at its own expense against fire, water, theft, and damage by low-voltage power. SYMESTIC GMBH is entitled to demand proof that the aforementioned insurance policies have been taken out. In the event of damage, the Customer’s insurance claim passes to SYMESTIC GMBH. To the extent that maintenance or inspection work is required, the Customer must perform it at his own expense.
- Unless a separate written agreement to the contrary has been concluded, the Customer is not authorized to use any goods that are subject to retention of ownership. As a precaution, at this time the Customer completely cedes to SYMESTIC GMBH all claims (including all current account balance claims) that may arise from authorized or unauthorized resale or other legal grounds (insurance or impermissible actions) in connection with goods that are subject to retention of ownership.
- In the event that third parties should lay claim to goods that are subject to retention of ownership, especially by attachments, the Customer shall call their attention to the fact that it is the property of SYMESTIC GMBH and also inform SYMESTIC GMBH without delay so that it can assert its ownership rights. To the extent that such a third party is not in a position to reimburse SYMESTIC GMBH for legal or out-of-court expenditures incurred in this connection, the Customer is liable for these.
- In the event that the Customer violates or fails to meet its contractual obligations, SYMESTIC GMBH is entitled to demand the return of goods subject to retention of ownership or, if relevant, to demand that the Customer relinquish its rights of repossession vis-à-vis third parties. If SYMESTIC GMBH takes back or pledges goods that are subject to retention of ownership, this does not imply a withdrawal from the contract.
The Customer must immediately inform SYMESTIC GMBH in writing of any defects, at the latest within one week after receipt of the goods or product. Any additional defects that remain undiscovered during this period, also after performing a careful check, must be communicated to SYMESTIC GMBH in writing immediately after being discovered. Insignificant deviations in color, dimensions and/or other quality attributes do not justify any warranty claims.
- The Customer ’s warranty rights are initially subject to the prerequisite that the Customer has properly complied with its obligations to investigate and report any problems pursuant to Sections 377 and 378 of the German Commercial Code.
- SYMESTIC GMBH guarantees that the supplied goods possess the attributes pledged in the contract and do not have any defects that would void or reduce their value or suitability for use in the usual way or as specified in the contract. Unless otherwise stated in the order confirmation received from SYMESTIC GMBH, the warranty period lasts 12 months from the day of delivery.
- The Customer must report in writing any defects that occur during the warranty period to SYMESTIC GMBH without delay, while including the following information: brand/make – serial number – delivery data – order/invoice number – description of the defect(s).
- The warranty does not cover the elimination of defects caused by normal wear, external influences, or operating errors. The warrant lapses if the Customer alters or extends elements or add-ons itself, has third parties make changes, and/or has staff or third parties perform repairs that have not been authorized by SYMESTIC GMBH, unless the Customer provides full proof in the aforementioned cases that the existing defects have not been caused either completely or partly by the aforementioned actions.
- If there is a defect for which SYMESTIC GMBH is responsible in accordance with the preceding provisions, SYMESTIC GMBH is entitled to choose whether to resolve the problems (by carrying out repairs) or supply a replacement. In the case of repairs, SYMESTIC GMBH is obliged to bear all costs incurred for eliminating the problems, especially shipping, travel, labor, and material costs, but not any additional costs incurred as a result of moving the goods to a location other than the one to which they were originally supplied. If SYMESTIC GMBH is not able or willing to eliminate the defects or supply replacements, if eliminating defects or supplying replacements takes longer than an appropriate amount of time for reasons for which SYMESTIC GMBH is responsible, or if multiple attempts to perform repairs or supply replacements fail, the Customer is entitled at its discretion to demand the cancellation of the contract or an appropriate reduction in the purchase price.
- More comprehensive warranty rights on any legal grounds whatsoever are excluded. SYMESTIC GMBH is not liable for any damages that have not directly arisen in connection with the supplied objects; in particular, SYMESTIC GMBH is not liable for any lack of suitability of supplied hardware for the Customer ’s purposes, for compatibility of the provided software and hardware, or for incompatibility with other equipment or equipment configurations used by the Customer. The only admissible exceptions are when compatibility has been pledged in writing in specific cases.
- The preceding paragraphs exhaustively describe the warranty for hardware while excluding all other kinds of warranty claims. They do not extend to claims for damages arising from assurances of certain characteristics intended to protect the Customer from the risk of consequential damages.
- SYMESTIC GMBH guarantees that programs and documentation are free of defects that would eliminate or reduce their value or suitability for use in the usual way or as assumed in the contract. Immaterial reductions in their value or suitability are not considered. The Customer is aware that the current state of technology makes it impossible to create a program that is completely free of defects. SYMESTIC GMBH provides no guarantee that the functions of the software ordered by the Customer will meet the Customer ’s requirements or will work together in the selected configuration unless this has been explicitly agreed.
- If a defect is attributable to specifications submitted or plans signed or accepted by the Customer or to demands of the Customer for executing the contractual services, warranty claims of the Customer pertaining to it are excluded.
- Unless otherwise stated in the order confirmation by SYMESTIC GMBH, the warranty lasts for a period of 12 months. The warranty begins with acceptance of the provided services. If parts of them are accepted, the warranty begins upon acceptance of those parts. If a part is used by the Customer without complaint, the warranty period for that part begins on the first day of use; this does not affect the warranty for the contractually agreed interaction of the partial fulfillment or the fulfillment of the contractually agreed performance attributes of the overall delivery.
- Defects that are documented in the declaration of acceptance and defects that the Customer reports prior to the end of the warranty period will be remedied by SYMESTIC GMBH at its own expense. If multiple attempts to remedy defects fail, the Customer may demand that the renumeration be reduced or the contract rescinded, but only if a programming error should prove to have a major detrimental impact on the system’s overall functionality and cannot be resolved by taking advantage of other capabilities of the software.
- The warranty lapses if the Customer alters or requests third parties to alter the software without the permission of SYMESTIC GMBH, unless the Customer demonstrates that the defects have not been caused by actions performed by it or by third parties.
- The Customer may only assert justified claims for damages for defects if SYMESTIC GMBH or its vicarious agents can be accused of intent or gross negligence, in the event of culpable violation of fundamental contractual obligations, in the event of an initial inability to perform, under the German Product Liability Act to the extent that it is applicable, or if explicitly pledged attributes are lacking if the purpose of the pledge was to safeguard the Customer against any damages. Liability in cases of culpable violations of major contractual obligations is limited to the reasonably predictable damages associated with contracts of this kind and excluded for indirect damage, consequential damage, and lost profits to the extent that this is legally permissible and/or contractually agreed. SYMESTIC GMBH is otherwise liable for expenses incurred for recovering lost data only if the Customer has taken steps to ensure that the data concerned can be reconstructed from machine-readable data media at a reasonable cost.
III. General provisions on hardware and software
Contracts that cover both supplying hardware and creating or providing software may not be regarded as single legal entities. Statements made in documentation and/or in advertising materials about possibilities for extending a product or available accessories are nonbinding, primarily because these products are subject to a process of continuous adaptation and the information provided may also refer to future developments. SYMESTIC GMBH accepts no liability for advertising or brochures of the producer(s).
Property rights and confidentiality
- Rights of use
a) SYMESTIC GMBH reserves ownership, copyright, and industrial property rights to the results of its work, preparation of concepts, and software planning, and especially to documentation, drawings, and other materials. This applies in particular to rights to the source code and all development documents.
b) SYMESTIC GMBH and/or third parties hold property rights to the software programs to be provided within the scope of this agreement. To the extent that these rights belong to third parties, SYMESTIC GMBH retains appropriate rights of use and distribution. The Customer receives a nontransferable and nonexclusive right to use the programs and related documentation provided by SYMESTIC GMBH in connection with a certain computer system (system module plus connected devices), hereinafter referred to as the “System”, which is described in greater detail in the order confirmation and purchased or rented from SYMESTIC GMBH or another supplier that has been explicitly approved by SYMESTIC GMBH. Any further use, and especially multiple uses or use with a different number of connected devices or altered storage capacities or extensions of the system, requires the prior written permission of SYMESTIC GMBH. Provided that the Customer pays the additional license fees due as a consequence of such changes, SYMESTIC GMBH will only deny permission for important reasons.
If SYMESTIC GMBH obtains licenses to programs from other producers and makes them available to the Customer, the licenser’s terms and conditions continue to apply in full and are provided to the Customer.
- Ownership rights
Objects provided for test purposes (hardware, software, documentation and other information) remain the property of SYMESTIC.
SYMESTIC and the Customer mutually pledge to treat each other’s business and trade secrets confidentially and refrain from divulging them to any third parties or deriving any benefits whatsoever from them. Documents, invoices, and other information that either party to the contract receives from the other may only be used within the scope of the contract’s purpose.
10. Limitation of liability
- SYMESTIC GMBH is only liable (regardless of the legal grounds) if the damage
a) has been caused by a culpable violation of a material contractual obligation in a manner that endangers the fulfillment of the contractual purpose or
b) is attributable to gross negligence or intent on the part of SYMESTIC GMBH.
- If SYMESTIC GMBH is liable for having violated a material contractual obligation as per 1b above without gross negligence or intent, its liability is limited to the damage that SYMESTIC GMBH typically had to expect based on the circumstances known at the time of concluding the contract.
- The restriction of liability as per no. 2 applies in the same manner to damages caused by gross negligence or intent on the part of employees or agents of SYMESTIC GMBH who are neither directors nor officers of its organization.
- In cases that fall under nos. 2 or 3 above, SYMESTIC GMBH is not liable for indirect or secondary damages or lost profits, to the extent that this is contractually agreed.
- Likewise, SYMESTIC GMBH is only liable for the loss of data or programs and their recovery or replacement within the scope of nos. 1 to 4, and only to the extent that such loss could not have been prevented by appropriate precautions and measures on the part of the Customer, in particular the making and keeping of backup copies of all data and programs.
- The limitations on liability pursuant to nos. 1 to 5 also apply analogously in favor of the employees and agents of SYMESTIC.
- Possible liability on the part of SYMESTIC GMBH for a lack of pledged attributes or under the German Product Liability Act remains unaffected.
- Any liability is limited to the damage that could have been expected at the time of concluding the contract. Liability is furthermore limited to the maximum amount that is currently covered by the liability insurance of SYMESTIC GMBH. Information on this insurance coverage will be communicated to the Customer on request.
11. Rights to process and back up data
- SYMESTIC GMBH complies with the statutory data privacy provisions.
- If and to the extent that the Customer uses IT systems for which SYMESTIC GMBH is technically responsible for processing the personal data of third parties, an order data processing agreement must be concluded for this.
12. Final provisions
These general terms and conditions and the entire legal relationship between SYMESTIC GMBH and the Customer are subject to the laws of the Federal Republic of Germany.
The legal venue for all disputes between SYMESTIC GMBH and the Customer is the court of law within whose jurisdiction the headquarters of SYMESTIC GMBH is located.
The Customer may only cede rights from a business relationship with SYMESTIC GMBH to third parties with the written permission of SYMESTIC GMBH.
To the extent that any provision of these terms and conditions or any provision within the scope of other agreements between SYMESTIC GMBH and the Customer should be or become invalid, this shall not affect the validity of the remaining provisions. An invalid provision must be replaced with another provision that approximates its intent as closely as possible.
Valid as of January 1, 2021