1.1 The following General Terms and Conditions (GTC) shall apply to all contractual relationships and pre-contractual negotiations with Symflower GmbH (hereinafter: SYMFLOWER), irrespective of the type and scope of performance within the scope of current and future business relations, unless otherwise agreed in writing.
1.2. These GTC of SYMFLOWER shall apply exclusively: Conflicting terms and conditions of our contractual partners or third parties shall only be valid if we expressly agree to their validity in writing. If you do not agree with this, please inform us immediately in writing. In this case we reserve the right to withdraw our offers without any claims of any kind being able to be made against us. We hereby expressly object to the formal references to the terms and conditions of our contractual partners.
1.3. Oral side agreements shall only be valid if confirmed in writing.
1.4. Oral side agreements shall only be valid if confirmed in writing. In case contracts concluded with SYMFLOWER contain provisions that contradict individual provisions of these GTC, such provisions shall take precedence over the GTC. The validity of the GTCs remains unaffected by this.
2.1. Unless expressly agreed upon otherwise, all offers of SYMFLOWER are non-binding. Orders are only binding for SYMFLOWER if SYMFLOWER confirms them or fulfils them by executing the order. Unless otherwise agreed upon, SYMFLOWER will start work no earlier than 5 working days after receipt of the down payment.
2.2. earlier than 5 working days after receipt of the down payment. Cost estimates are given without guarantee and are subject to a fee in case of doubt. The prices offered shall be exclusive of statutory value added tax. Unless expressly agreed upon otherwise, offered prices are not to be understood as a lump sum for the respective services but consist of individual prices based on the estimated expenditure in each case.
2.3. services but consist of individual prices based on the estimated expenditure in each case. The customer waives the right to rescind the contract on grounds of error and for reduction of more than half of the true value (laesio enormis). In addition, the customer waives adjustment and / or rescission or termination of the contract due to changes to and / or discontinuation of the basis of the transaction.
2.4. SYMFLOWER does not have to accept subsequent changes or extensions of an order and the customer shall not be entitled to give instructions to SYMFLOWER which go beyond or change the original scope of services. However, SYMFLOWER will endeavor to take the customer’s wishes into account. If changes or extensions of the original scope of services are agreed upon, it shall be deemed agreed that, in the absence of other agreements, any additional services will be invoiced according to the respective hourly rates of the specialists employed. Insofar as these requests involve greater expense, the schedule agreed for the provision of services will be changed. Changes and additions agreed upon orally shall only become effective upon confirmation in writing by SYMFLOWER.
2.5. SYMFLOWER is entitled to use carefully selected vicarious agents and / or subcontractors for the fulfilment of its contractual obligations in whole or in part.
2.6. The customer agrees that SYMFLOWER may name the customer and the services rendered for the customer as reference without restriction. SYMFLOWER shall therefore be entitled to use the following information pertaining to the customer on its website as well as in marketing materials: the company name of the customer including the company address, the company identification and / or the company logo / brand of the customer, as well as links to the internet presence of the customer.
3.1. In case of service contracts with SYMFLOWER, the subject of the order is the careful performance of the agreed service, but not a certain success.
3.2. Unless otherwise agreed upon separately, remuneration is based on time and material spent in accordance with the contractually agreed provisions.
3.3. A daily rate covers a work performance of 8 hours per day. Any work performed in excess of this (or less) shall be remunerated pro rata (rounded to quarter hours). The daily rates shall only apply to services provided from Monday to Friday between 09:00 and 18:00 (CET). If, at the customer’s request, services are performed outside the aforementioned times, the relevant daily or hourly rate shall increase as follows:
50 % for night work
100 % for work on Saturdays, Sundays and public holidays
3.4. In case of invoicing according to time spent, SYMFLOWER will record working hours in an activity report (weekly, monthly or quarterly report). Unless otherwise agreed upon, services provided will be invoiced weekly at the end of the week.
3.5.In addition to the agreed upon remuneration, the following costs will be invoiced (separately) in case of travel:
accommodation costs according to expenditure against proof, and
expenses in accordance with the applicable tax regulations;
For travel expenses, actual costs incurred (in case of travelling by car, however, at least with a mileage allowance of EUR 0.6 per km) will be charged from SYMFLOWER’s corporate seat. SYMFLOWER may choose the means of transport, whereby the shortest distance is taken as a basis.
Travel and waiting times are considered 100% working hours.
Additionally, the following shall apply to orders which completely or partly concern the development of software by SYMFLOWER:
4.1 SYMFLOWER’s contractual obligations are based on the information provided by the customer prior to the start of work regarding desired functionalities, designs, existing hardware and software environments. SYMFLOWER shall in no way be liable for the correctness and completeness of such details in any case.
4.2. In the case of orders for software development, SYMFLOWER will develop a solution based on information provided by the customer in accordance with the principles of proper professional practice and the state of the art in science and technology and implement it into a functioning computer program.
4.3. SYMFLOWER shall be liable for the functionality of the developed software, but not for the fact that its use at the customer’s premises brings certain advantages or results, especially of an economic nature.
4.4. SYMFLOWER will, in accordance with this provision, inform the customer at the pre-contractual stage to the extent that the customer can reasonably be expected to make the necessary decisions for placing the order. In contrast, the customer shall inform SYMFLOWER comprehensively about all circumstances which could influence the provision of services and the performance of work. For the rest, reference is made to the customer’s obligations to cooperate according to point 5 of these GTC. Any liability of SYMFLOWER due to violations of pre-contractual or contractual duties of disclosure shall be excluded in any case, with the exception of gross negligence and intent.
5.1. If SYMFLOWER is dependent on the customer’s cooperation for the execution of a contract, the customer shall use its best efforts to provide the necessary cooperation. For this purpose, the customer shall name a technically competent contact person who will furnish to SYMFLOWER necessary information at short notice, make necessary documents available, name contact persons and will be able to make or induce decisions. SYMFLOWER shall be obliged to involve such contact person if and as far as the execution of the contract requires.
5.2. execution of the contract requires. If SYMFLOWER acts on the customer’s premises, the customer shall create in time and free of charge all necessary and / or useful conditions for the fulfilment of the contract by SYMFLOWER in its business sphere and will maintain such conditions for the duration of the performance of the service. In particular, the customer shall provide the required cooperation services completely, qualitatively faultless and in time and, if necessary, (re)provide any necessary permits, authorizations and access authorizations.
5.3. If delays or additional expenses arise due to the customer’s improper or untimely cooperation or due to events within the customer’s sphere of responsibility, SYMFLOWER may demand changes to the schedule and the agreed remuneration, without prejudice to further legal rights.
5.4. The customer shall sufficiently insure the objects handed over or provided to SYMFLOWER against loss and damage. In any case, the customer must inform SYMFLOWER if the damage could exceed EUR 500 per data carrier or other object.
5.5. The customer shall make backup copies of data carriers, which – if damaged – could cause the customer damage exceeding EUR 500, before the material is handed over to SYMFLOWER. If, according to the customer’s information, potential damage per data carrier could exceed EUR 500, SYMFLOWER may, if necessary, make backup copies itself before the beginning of processing or request the customer to make backup copies. The costs for such backup copies shall be borne by the customer.
6.1. Completion or delivery dates stated in correspondence and cost estimates are non-binding, unless the binding nature of such obligations has been expressly agreed upon in writing in individual cases.
6.2. SYMFLOWER shall be entitled to partially deliver or perform its obligations in any case. If the customer does not make the contractually owed payment in case of partial delivery / performance, SYMFLOWER shall be entitled to withhold the (remaining) deliveries / performance. Until the complete payment of any open invoices, SYMFLOWER is therefore entitled to refuse further deliveries or the performance of further services, to impose a delivery stop in case of partial deliveries and to prohibit the use of already delivered services. The assertion of further damages is not excluded.
6.3. Default of payment and changes to the order by the customer, which are made after the start of work, will in any case lead to postponements of deadlines.
6.4. The shipping of data carriers, as well as the digital transmission of data or contractually owed services shall be at the expense and risk of the customer. Insurance will only be taken out at the request and expense of the customer. Reference is further made to the existing business liability insurance.
7.1. In the absence of any other written agreement, the prices stated in SYMFLOWER’s service offer shall apply for the execution of orders. If no hourly rates are stated there, the hourly rate shall be 200 (two hundred) Euros.
7.2. All prices stated in correspondence, offers and contracts are excluding value added tax. VAT will be charged at the applicable rate and will be additionally invoiced. SYMFLOWER charges in Euro and accepts payments exclusively in Euro. For payments in other currencies, SYMFLOWER’s prior, separate and written consent is required in any case.
7.3. Unless otherwise agreed upon, all invoices of SYMFLOWER shall be due for payment immediately and without deduction. If the customer is in default with payments, SYMFLOWER shall be entitled to charge default interest in the amount of 0.05% per day, as well as reminder and collection expenses necessary for the appropriate collection and recovery of the claim according to the respectively valid fee schedules of the collection agencies or the respectively valid lawyer’s tariff. This does not exclude the assertion of further damages.
7.4. SYMFLOWER will inform the customer at least 1 month in advance about intended price changes. The customer has the right to object to the intended price change within 14 days. If no objection is raised within this period, the change shall be considered accepted. If the customer objects, the price changes will be negotiated between the contracting parties within a further period of 14 days. If no agreement is reached, the customer shall be entitled to terminate the contract in writing with immediate effect (special right of termination).
7.5. The customer shall not be entitled to set off any claims whatsoever against SYMFLOWER’s claims.
7.6. If SYMFLOWER supplies hardware, it shall remain the property of SYMFLOWER until the purchase price and all related costs and expenses have been paid in full. In case of even partial default of payment, SYMFLOWER is entitled to collect the goods without the consent of the customer (buyer). A resale is only permitted if SYMFLOWER has been duly informed of this in advance, stating the name or company and the exact (business) address of the buyer, and SYMFLOWER agrees to the sale in writing. In case of SYMFLOWER’s consent, the purchase price claim shall already now be considered assigned to SYMFLOWER and SYMFLOWER shall be entitled to inform the third party debtor of this assignment at any time. In case of default, SYMFLOWER shall be entitled to assert its rights from the reservation of title. It is agreed that the assertion of the reservation of title does not constitute a withdrawal from the contract, unless SYMFLOWER expressly declares its withdrawal from the contract.
7.7. It is expressly agreed that the agreed hourly rates (plus incidental claims) shall be stable in value. The consumer price index 2015 published monthly by STATISTIK AUSTRIA or the index replacing it ex officio shall be used as a measure for calculating the stability of value. The index figure calculated and published for the month in which the contract was concluded serves as reference figure for adjustments in accordance with these General Terms and Conditions. Fluctuations of the index number up or down to 2 % exclusively are not taken into account. This fluctuation margin shall be recalculated each time it is exceeded, whereby the first index figure outside the applicable margin shall always form the basis for both the new determination of the amount of the claim and the calculation of the new margin. All rates of change shall be calculated to one rounded decimal place.
8.1. As far as a specific outcome is owed at all (and not just best efforts), SYMFLOWER only warrants that the results of its work essentially correspond to the description in the documentation or the functional description with regard to their functionality. A liability for a certain quality only exists if it has been agreed upon explicitly in writing.
8.2. The service recipient shall be obliged to accept services without delay. The actual operational use of delivered services shall be deemed equivalent to acceptance.acceptance is not declared within a reasonable period of time, the service shall be deemed to have been accepted no later than 10 working days after delivery.
8.3. Upon receipt, the customer shall immediately examine the results transmitted to the customer for defects. If the no immediate written complaint by registered mail is sent, the services provided by SYMFLOWER shall be deemed approved and warranty claims of the customer shall be excluded.
8.4.Any warranty applies only to reproducible defects notified by the recipient of the services according to this point 8. Defects and their appearance must be described in such detail that it is possible to check the defects (e.g. presentation of error messages) and exclude operating errors (e.g. indication of the work steps).
8.5. The customer shall prove that a defect exists; the presumption of defectiveness according to Sec 924 ABGB (Austrian Civil Code) shall not apply in this case.
8.6. SYMFLOWER’s warranty obligation shall be initially limited to improvement within a reasonable period of time. If the customer’s cooperation is required for the improvement, such period does not begin before this cooperation. SYMFLOWER will bear the expenses necessary for the purpose of improvement. If the improvement does not succeed within a reasonable period of time due to reasons for which SYMFLOWER is solely responsible, the customer may primarily demand a reduction of the remuneration. In any case, a withdrawal from the contract shall only be possible if the defective performance is completely unusable for the customer even after SYMFLOWER has failed to improve it. Any further warranty claims shall be excluded.
8.7. If it turns out in retrospect that the necessity of improvement work is partly or completely due to circumstances for which the customer is responsible (e.g. wrong information about the hardware and software environment and / or its faulty configuration), the customer will be additionally charged for the work caused by this at the prices valid at the time.
8.8. Any warranty shall be completely excluded, if a person, who does not act according to SYMFLOWER’s instructions, interferes with the software, especially with the source code, in order to make changes, deletions or extensions or if such person has caused the error in any other way.
8.9. The customer shall inform SYMFLOWER immediately and comprehensively in writing about any claims of third parties, which prevent or hinder the customer to use the subject of the contract. If the customer is sued by third parties due to the use of the subject matter of the contract, the customer shall coordinate all related steps with SYMFLOWER and shall not take any legal action, especially acknowledgements and settlements, without the consent of SYMFLOWER.
8.10. All warranty claims of the customer shall be subject to a limitation period of three months from receipt of the result of the work by the customer.
SYMFLOWER shall only be liable to the customer for damages, irrespective of the legal basis, in accordance with the following provisions:
9.1. SYMFLOWER shall only be liable for gross negligence or intent. Liability for slight or plain gross negligence shall be excluded. This does not apply to personal injury. Any liability shall be limited to the value of the order. The reversal of the burden of proof according to Sec 1298 ABGB (Austrian Civil Code) shall be excluded.
9.2. SYMFLOWER shall not be liable for lost profits, loss of interest, loss of turnover, financial losses, lack of savings and damage to recorded data. Furthermore, SYMFLOWER shall neither be liable towards third parties and other indirectly injured parties, nor for (consequential) damages. Accordingly, SYMFLOWER shall not be liable for damages to the customer’s end devices. Furthermore, SYMFLOWER shall not be liable for missing savings or lost data.
9.3. Claims for damages of the customer due to delay or impossibility of performance of SYMFLOWER shall be limited to the value of that part of the performance, which cannot be used as contractually provided due to the delay or impossibility.
9.4. SYMFLOWER shall not be liable for circumstances within the sphere of the customer. Accordingly, SYMFLOWER shall not be liable for damages and defects caused by changes to the software, changes to the necessary system settings or application errors. SYMFLOWER shall not be liable for delays which cannot be avoided even with careful management, especially circumstances of force majeure, technical disturbances or labor disputes. This regulation also applies if such circumstances occur at suppliers or vicarious agents of SYMFLOWER.
9.5. As far as contracts concluded with SYMFLOWER deal in part or in whole with access to SYMFLOWER’s servers by the customer or third parties via the internet or other remote data transmission, an uninterrupted accessibility and availability of SYMFLOWER’s servers shall not be contractually owed. In this respect SYMFLOWER shall only owe reasonable and appropriate efforts and precautions according to the state of the art of science and technology to ensure uninterrupted accessibility and availability of the servers. Circumstances beyond SYMFLOWER’s sphere of influence, such as the availability and proper functioning of transmission paths in the internet and in public networks, are in no case subject to contractual agreements or assurances.
9.6. If liability cannot be excluded due to legal regulations, the liability for each event causing damage shall be limited to EUR 100,000.
10.1. Products of SYMFLOWER are intellectual property protected by law and agreements. All products and intellectual property in products, including but not limited to software, images, photographs, animations, video, audio, music, text and “applets”, which are included in the product, printed accompanying materials and each copy of the product, are owned by SYMFLOWER and / or its suppliers. Proprietary and intellectual property rights in and relating to the content accessed through the product are owned by the respective entitled party. In all copies and adaptations, the customer will adopt the copyright notices possibly contained in the products.
10.2. SYMFLOWER shall be expressly entitled to copyrights or comparable protective rights connected with the activities of SYMFLOWER. The customer shall only have a claim to such rights (in particular exploitation rights) or their transfer, if this has been expressly agreed upon in writing in each individual case. Otherwise, software delivered and / or handed over to the customer remains the property of SYMFLOWER, including the complete documentation and / or functional description. Within the scope of the respective order, SYMFLOWER will grant the customer an authorization of use (or, if expressly agreed in writing, a right of use) regarding the software. If the parties have expressly agreed in the contract to grant a right of use to the services and work results, SYMFLOWER shall not, however, be prevented from developing work results and providing them to third parties for use, which are similar to the work result delivered to the customer. The customer shall not be entitled to sell, lease or otherwise transfer rights to the software or other products to a third party for use against payment or free of charge without the prior written consent of SYMFLOWER.
10.3. Graphics, sound documents, video sequences, texts and concepts designed or created by SYMFLOWER may neither be changed, copied nor passed on and may only be used in the original sense and context.
10.4. Any duplication of software, graphics, sound documents, video sequences and texts produced by SYMFLOWER in electronic or printed publications shall not be permitted without the prior, explicit and written consent of SYMFLOWER.
10.5. The customer assures that software or other materials provided by the customer will not interfere with the rights of third parties, especially copyrights. In the event that the software or materials provided by the customer should nevertheless interfere with the rights of third parties, the customer shall indemnify and hold SYMFLOWER harmless in this respect.
11.1. SYMFLOWER processes personal data provided to it within the scope of the conclusion of the contract for the fulfilment of legal or contractual obligations, in case of a justified interest of SYMFLOWER or due to the consent of the customer according to the respective valid regulations of data protection law.
11.2. In particular, SYMFLOWER shall be entitled, if required, to transmit all data necessary to fulfil the order to vicarious agents of SYMFLOWER in writing, by email or telephone.
11.3. A transfer of customer data to third parties is basically effected within the scope of the processing of the service ordered by the customer with the bank or the payment institution of the customer or for the purpose of the execution of the respective contract (e.g. to vicarious agents of SYMFLOWER).
12.1. For the duration of the order and 24 months thereafter, the customer shall not employ any employees of SYMFLOWER. This obligation shall also apply to employees who have left the company during the cooperation as well as to employees who are not in permanent employment and to employees of companies whose services SYMFLOWER uses for the fulfilment of the order (e.g. freelancers, part-time employees, subcontractors, other vicarious agents).
12.2. If the customer violates the aforementioned obligations, the customer shall be liable to pay SYMFLOWER for each violation a contractual penalty in the amount of the total amount of salaries and other remunerations which the employee concerned has received for his work activity in the last 12 months, at least, however, an amount of EUR 80,000, which shall not be subject to the judicial right of moderation. The right to injunctive relief and any further claims for damages shall remain unaffected.
13.1. The terms of termination shall be governed in principle by the contract concluded in each individual case.
13.2. Fixed-term contracts may only be terminated prematurely for cause. To be effective, the termination must be made in writing and sent to SYMFLOWER by registered mail. All services provided by SYMFLOWER up to the time of termination shall be due for payment immediately on the date of termination. If the contract is terminated prematurely by the customer, SYMFLOWER shall be entitled to charge the customer an additional cancellation fee in the amount of 20% of the order value, but at least EUR 2,000.
13.3. SYMFLOWER may, in particular, terminate the order or contract for cause if
14.1. The customer shall immediately inform SYMFLOWER about any changes of address or other essential information. If the customer fails to do so, any notifications of SYMFLOWER shall be deemed to have been delivered, even if they were delivered by the last valid means of communication.
14.2. The customer accepts that SYMFLOWER may also send legally binding declarations to the customer by e-mail, SMS or other electronic media (this also applies to invoices). Declarations shall be considered received as soon as the customer may retrieve or take note of them under normal circumstances.
Should one or more of the above provisions be or become invalid, the validity of the remaining provisions shall not be affected. Instead, a legally effective provision shall be deemed to have been agreed which comes as close as possible in legal and economic terms to the invalid provision.
The relations between the customer and SYMFLOWER shall be exclusively governed by Austrian law, excluding private international law and the UN Convention on Contracts for the International Sale of Goods. The place of performance for all services of SYMFLOWER shall be at the seat of SYMFLOWER in Austria. For all disputes arising from or in connection with contractual relations with SYMFLOWER on the basis of these GTC, including disputes about the existence or non-existence of a contract between the customer and SYMFLOWER, about its violation, dissolution or nullity, the jurisdiction of the court with jurisdiction in the district of the District Court of Linz is agreed.