General Business Terms and Conditions of Symbioworld GmbH

  1. Applicability of the terms and conditions of contract
    1. Symbioworld GmbH, Einsteinring 41, 85609 Aschheim (Symbioworld) handles IT services for the customer in the cloud data centre of the customer or in the cloud data centre of Symbioworld.
    2. The cloud data centre of Symbioworld is provided on the Microsoft Azure platform. The terms and conditions of Microsoft apply to this.
    3. Both parties are aware that the smooth functioning of the IT service modules desired by the Customer is dependent not only on proper performance of the Parties, but also that there is dependence on third parties. Examples here include loss of power, software that is not entirely free of errors, hardware, and similar cases.
    4. If Symbioworld provides Symbio rental licences, the Symbio terms and conditions of licence and use are applicable.
    5. These terms and conditions of contract are exclusively applicable to the service modules provided by Symbioworld, unless agreed otherwise, e.g. in a framework contract. Other terms and conditions of contract become contractual content only to the extent that Symbioworld expressly approves them.
    6. These terms and conditions of contract also apply to future, similar contracts with the Customer, including where Symbioworld does not once again make special reference to them. Exclusively applicable are the terms and conditions of contract in their current version at the time of contract conclusion, other than where the contracting parties agree otherwise in writing.
  2. Offers and contract conclusion
    1. Offers by Symbioworld are non-binding and subject to change, unless they are indicated in writing as binding. An offer also becomes legally binding through the written order confirmation of Symbioworld.
    2. If and to the extent that the customer uses the digital Symbioworld portal, the declarations of intent submitted by the parties there are also binding and satisfy written form.
    3. Deliveries and services that do not fall under these terms and conditions of contract must be agreed upon in writing separately.
  3. Subject of contract
    1. Symbioworld offers a variety of different services in the managed IT environment. The service modules offered by Symbioworld are indicated by a service catalogue.
    2. The customer has compiled its individual service requirement from the variety of service modules offered by Symbioworld. Other service modules are not due.
    3. Applicable are the current service terms and conditions of Symbioworld on the date of performance.
  4. Change of service modules
    1. The parties are aware of the fact that in the event of a collaboration, the contractual arrangements cannot from the outset definitively address every future circumstance in a manner satisfactory for both sides. The parties therefore agree on the following arrangements for service modifications that become necessary:
    2. The parties must submit their change requests (CR) in writing. In this regard, the CR should be described and worded as precisely as possible. Symbioworld will assist the customer with the wording of the CR to the extent necessary from a technical standpoint, without cost. If the preparation of technical specifications is necessary for this purpose due to their scope, Symbioworld is to be separately compensated for this work.
    3. Symbioworld will review every CR of the customer and notify the customer within 14 (fourteen) working days as to whether the change request is reasonable and performable for Symbioworld.
    4. If the CR is reasonable and performable, Symbioworld will indicate the way in which it plans to implement the CR and over what period of time. In particular, effects on the scope of service, the contract term, and the fee are to be described.
    5. A fee for implementing the CR is owed if review and implementation of the CR cause an effort that is beyond the normal, contractually owed scope of service by more than a merely insubstantial amount. If this is the case, in the opinion of Symbioworld, Symbioworld will explain this to the customer in writing and submit an offer with details about the scope of service and the requested fee. The customer must issue the order in writing or withdraw the CR within 10 (ten) working days.
    6. Until implementation of the CR, Symbioworld will provide the services concerned in accordance with the contractual agreements currently in effect, unless the customer directs that the current service provision be discontinued.
  5. Other services
    1. Symbioworld may provide, in particular, the following services on the basis of separate agreement that will entail a separate fee:
      1. Installation of updates and upgrades;
      2. Installation of changed or improved versions of the software and, if necessary, required modifications of data structures and databases;
      3. Provision of opportunities to use new technologies;
      4. Organisational advice;
      5. Training at the customer on location or remotely.
    2. To the extent that data migrations are owed as a service module as part of the collaboration, the following applies:
      1. Symbioworld is not responsible for the substantive accuracy and completeness of the data being transferred.
      2. The customer is responsible for ensuring that its real data are sufficiently and adequately backed up for restorability at all times prior to the start of the migration (if necessary, repeatedly during the migration process).
      3. The customer is to provide Symbioworld with its real data in a format suitable for import that Symbioworld will communicate to the customer in advance. If modification of the existing database is necessary to import the real data (field descriptions, mapping, etc.), the customer must carry this out. If Symbioworld is to take on this tasks, a separate fee-based order is necessary.
      4. Symbioworld will notify the customer about the start of the migration process and notify it of the need for data back-up.
      5. The customer warrants that migration will not infringe the rights of third parties. The customer indemnifies Symbioworld to this extent against all liability claims.
  6. The customer’s obligation to cooperate
    1. The customer must keep its employees who handle the software trained to an appropriate extent. It must cooperate in problem resolution by providing staff, information, rooms, equipment, programs, and telecommunications systems, properly documenting data processing operations, backing up data in accordance with the state of technology, and logging defective events as precisely as possible.
    2. The customer is responsible for backing up its entire database on a regular basis. It must, on its own, make sufficient preparation in order to back up its entire existing databases and application programs.
    3. Upon request, the customer must grant Symbioworld access to the system environment, both physically and via data cables. It must create the necessary connections for this.
  7. Fee
    1. The customer will be billed the fee for management of the system environment annually in advance.
    2. The agreed fee relates to the currently agreed service modules. Symbioworld is entitled to increase the fee if the customer demands more than the agreed service modules, or if the customer expands its system environment.
    3. Symbioworld is entitled to increase the fee with three months’ prior notice. If the fee increase amounts to more than 4.5% within one (1) year after the most recent increase demand, the customer is entitled to terminate the contract as at the date that the increase becomes effective. In this case, the fee remains unchanged until the end of the contract.
    4. Symbioworld may separately invoice the effort that is incurred as a result of the fact that the customer does not provide its obligations to cooperate under this contract or does not do so in conformity with the contract.
    5. Other services that Symbioworld separately invoices are charged in accordance with the current price list of Symbioworld for services, unless expressly agreed otherwise.
    6. All prices are net of applicable value-added tax, as well as other country-specific charges in the case of foreign services.
    7. Payments are due when invoiced and must be settled within 14 (fourteen) days of the invoice date. If the customer is in default in making a payment, default interest is charged in the amount of eight (8) percentage points above the base interest rate. Symbioworld reserves the ability to assert more extensive damage from default.
    8. The customer may set off against the claims of Symbioworld only claims that are uncontested or have been reduced to an enforceable judgment and may assert a right of retention or refusal to perform only on the basis of such claims. In addition, the customer may assert a right of retention or refusal to perform only with respect to claims under the same contractual relationship.
  8. Default in performance
    1. If Symbioworld fails to provide its services in conformity with the contract and fails to meet its obligations even after the setting of a reasonable grace period, the customer is entitled to reasonably reduce the fee after expiry of the deadline if the customer gave written notice of the reduction when setting the deadline. In addition, the customer is entitled to terminate the contract without notice if Symbioworld has made at least two (2) service attempts that show considerable errors that interfere with functioning or has definitively refused to provide further services.
    2. The customer cannot assert the foregoing rights if it or third parties made changes to the provided services or to Symbioworld’s specifications that Symbioworld did not expressly approve in advance, other than where the customer demonstrates that the error is not attributable to the changes and that these did not make error identification and elimination more difficult.
    3. Symbioworld is not obligated to eliminate errors that are reported after termination of the contract.
    4. More extensive claims are excluded, except for the limited claims for compensation of damages under clause 9.
  9. Liability
    1. The liability of Symbioworld, irrespective of the legal reason, is unlimited for damages that
      1. Symbioworld caused by wilful misconduct or gross negligence, or that
      2. result from culpable (i.e. at least negligent) loss of life, bodily injury, or damage to health.
    2. The liability of Symbioworld for itself, its statutory representative, and persons it uses to perform an obligation (Erfüllungsgehilfen) is limited in terms of amount to foreseeable damages typical of this type of contract that result from
      1. a breach of material contractual obligations due to simple negligence on the part of Symbioworld (these mean obligations that are essential for proper performance of the contract and on whose compliance the customer is normally entitled to rely, i.e. obligations whose breach would jeopardise the achievement of the contract purpose) or
      2. a breach of other obligations due to gross negligence on the part of agents and employees of Symbioworld who are not members of Symbioworld’s governing bodies, its senior executives, its statutory representatives, or persons it uses to perform an obligation.
    3. In the cases in clause 9.2, alternative 2, Symbioworld is not liable for indirect damages, consequential damages caused by a defect, or lost profit.
    4. Symbioworld is not liable for the loss of data or programs that the customer could have avoided by complying with the obligation in clause 6.2. In all other respects, any liability of Symbioworld due to data loss is subject to the other limitations in this clause 9.2.
    5. In the cases in clause 9.2, the customer’s claims for compensations of damages are prescribed one (1) year after the time at which the customer gained knowledge of the damage or, notwithstanding such knowledge, three (3) years after the time at which the damaging event occurred.
    6. All other liability of Symbioworld for compensation of damages is excluded.
    7. The foregoing clauses also apply in the case of possible claims of the customer against employees or agents of Symbioworld for compensation of damages.
  10. Contract term and termination
    1. The contractual relationship commences with contract conclusion. The minimum term is one year. The contract is continually renewed for another 12 (twelve) months unless terminated by a contracting party with three months’ notice, effective at the respective end of the contract.
    2. The foregoing does not affect the right to terminate without notice for an important reason. An important reason is considered to exist, in particular, in the following cases:
      1. As a result of non-delivery of updates by the manufacturer for which Symbioworld is not responsible, Symbioworld is permanently unable to perform, even though Symbioworld made all reasonable efforts to procure the updates.
      2. Symbioworld increases the fee pursuant to clause 7.3.
      3. The customer made interventions in the software without authorisation, or had third parties make such interventions.
      4. The customer is in default in making payment by more than one (1) month, and also does not make payment in full in response to a written payment reminder by Symbioworld with the setting of a reasonable grace period.
      5. The customer suffers a financial collapse, or other circumstances give cause, from a reasonable assessment in the view of Symbioworld, to fear the illiquidity of the customer; insolvency proceedings have been applied for in respect of the customer or have been refused for lack of assets or a deletion or liquidation of the customer has been applied for or recorded in the commercial register.
      6. The customer fails to meet its obligations to cooperate or fails to do so in conformity with the contract.
      7. A contracting party breaches some other obligation and, to extent that it can be stopped or remedied, does not end or remedy this breach of obligation by a reasonable deadline following demand by the other contracting party, unless such deadline or demand can, by way of exception, be dispensed with in light of the severity of the breach of obligation or other special circumstances.
    3. Notice of termination requires written form in all cases. A confirmed email satisfies written form.
    4. In addition, the contractual relationship automatically ends without the need for termination at the time at which the update service contract between Symbioworld and the customer ends.
  11. Confidentiality, data protection
    1. The contracting parties undertake to treat in confidence all information that they receive from the other contracting party or become aware of prior to or in the course of contract performance (e.g. software, documents) that is legally protected or includes business or trade secrets or is to be considered manifestly confidential or is characterised as confidential, including beyond the end of the contract, unless the information is or becomes public knowledge without a breach of the confidentiality obligation. The contracting parties are to store and secure the information in such a way that access by third parties is excluded.
    2. The customer must treat all programs, codes, and documents supplied by Symbioworld, as well as designs, as business and trade secrets of Symbioworld.
    3. The customer may make the information accessible only to employees and third parties who require access to it for the purpose of fulfilling these terms and conditions of contract. It must obligate these persons to maintain the confidentiality of the information.
    4. Symbioworld stores the data of the customer that are necessary for business processing in compliance with the provisions of data protection law.
    5. If and to the extent that Symbioworld comes into contact with personal data of the customer, the parties are to conclude a data processing contract pursuant to Article 28 of the General Data Protection Regulation prior thereto.
  12. Side agreements, contract amendments, form
    1. Side agreements, amendments and supplementations to these terms and conditions of contract require written from in order for them to be effective. Written form is also satisfied by a transmission in text form, including by telefax or email.
    2. The written-form requirement may be abrogated only by a written agreement.
    3. The written-form requirement is also met by declarations of intent submitted via the digital Symbioworld portal.
  13. Place of jurisdiction, choice of law, contract language
    1. Aschheim is the place of performance. Munich is the place of jurisdiction for all disputes under and in connection with these terms and conditions of contract.
    2. The law of the Federal Republic of Germany applies, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
    3. The contract language is German.
  14. Severability clause
    1. If the contract concluded under these terms and conditions contains a gap or omission, or if a provision is or becomes ineffective, either in whole or in part, this does not affect the validity of the other provisions.
    2. Deemed agreed upon in place of the missing or ineffective provision is a provision that most closely approximates the economic purpose of the missing or ineffective provision that was originally intended by the contracting parties. The same applies in the event that the contract contains a gap in the arrangements.
    3. The arrangement in section 139 of the German Civil Code (BGB) is waived.