Terms & Conditions

/Terms & Conditions
Terms & Conditions2018-10-11T21:08:18+00:00

Terms & Conditions

isymtec.ai GmbH

Thank you for your interest in products and services provided by isymtec.ai GmbH (referred to as “isymtec.ai”). Your access to and use of this website and all pages, products and services operated by isymtec.ai or its affiliates accessed directly or indirectly by links contained within the site (collectively, “Site“) is subject to the following terms and conditions and all applicable laws. Your use of the Site is your indication that you accept, without limitation or qualification, these Terms, the isymtec.ai Privacy Policy and other terms of use posted on the Site.

  1. Scope
  1. The following Terms & Conditions (“Terms”) apply between isymtec.ai GmbH, Haydnstr. 25, 91074 Herzogenaurach and the Clients of isymtec.ai’s computer-aided engineering software (“Software”) or recipients of isymtec.ai’s services (in the following “Client” or “Clients”) and shall form an integral part of any agreement between isymtec.ai and Client, no matter whether entered into by execution of order forms or other order documents, by completion of any click-through or other online process (“Agreement”).
  2. isymtec.ai shall provide the Software to Client as software as a service in accordance with the Agreement. The Software is provided only as software as a service, i.e., for browser-supported and Internet-based use via Client’s end devices. Client shall ensure that the end devices deployed for using the Software and the connections required comply with the minimum system requirements of isymtec.ai. isymtec.ai may subcontract any or all of its obligations under these Terms and any Agreement to third parties without any consent of its Clients.
  3. Standards and specifications of the Software are included in the current documentation for the Software (“Documentation”). Other product information sent to Client, if any, such as marketing material, product descriptions, product roadmaps and the like, shall be for informational purposes only and shall not create any binding declarations by isymtec.ai.
  4. The following Terms that are applicable at the time concerned shall also apply to all future Agreements between Clients and isymtec.ai without isymtec.ai being required to refer to these Terms in each individual case. These Terms shall be considered as confirmed by Client at the latest when isymtec.ai grants access to the Software or provides other services.
  5. The following Terms shall apply exclusively. Any other terms and conditions of Clients which deviate from, conflict with or supplement these Terms shall only become part of the Agreement upon explicit written confirmation of isymtec.ai.
  1. Client Account, Updates and Availability
  1. In order to use the Software in accordance with these Terms, Client shall create a dedicated user account on isymtec.ai’s website (“Client Account”).
  2. isymtec.ai reserves the right to redesign and/or to partly or fully phase out the Client Account at any time and at its own discretion without replacement.
  3. isymtec.ai may perform necessary updates and upgrades to the Software in order to improve the usability, security or stability of the Software or to extend its features or to ensure its compliance with statutory requirements. Updates and upgrades shall be provided at isymtec.ai’s own discretion.
  4. isymtec.ai pursues to offer constant availability of the Software but cannot guaranty uninterrupted availability thereof. isymtec.ai offers the Software as a service and therefore has no influence and is not responsible for Client’s Internet access or Internet connection including its availability, speed or any costs and expenses of Client associated therewith.
  1. License Grant to the Software and Restrictions
  1. According to these Terms, isymtec.ai grants to Client a non-exclusive, non-transferable, non-sublicensable right and license to use the Software as a service on its end devices for internal business purposes only.
  2. Client’s affiliates and employees thereof shall not use the Software without isymtec.ai’s prior written consent.
  3. Client shall not: (i) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, or otherwise generate income from the Software, (ii) copy the Software and publish it on any public or distributed network, (iii) decompile, reverse engineer or disassemble any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software, (iv) modify, adapt, translate or create derivative works based on all or any part of the Software, (v) modify any proprietary rights notices that appear in the Software or components thereof, (vi) use the Software in violation of any applicable laws and regulations or outside of the license scope set forth herein, (vii) configure the Software to collect any data that falls within the definition of “special categories of data” within the meaning of the EU General Data Protection Regulation or a similar concept, passwords or other authentication credentials, any payment or other financial, biometric or genetic data (“Confidential Data”), or (viii) use the Software to store, download or transmit infringing, libellous, or otherwise unlawful or tortious material, or malicious code or malware, engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity, interfere with or disrupt the integrity or performance of third-party systems, or the Software or data contained therein, attempt to gain unauthorized access to the Software or isymtec.ai’s systems or networks, perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the Software, unless otherwise expressly provided in these Terms.
  4. Client shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations.
  1. Use of Software and Content
  1. Property of and responsibility for all designs, analyses, simulations, models, estimations, data and other results uploaded by Client within the Software or generated by Client through Client’s use of the Software (“Content”) shall fully remain with Client or its respective owner.
  2. Client accepts that Content uploaded or generated by Client under a Client Account shall not be accessible by other users of the Software and visitors of isymtec.ai’s Sites unless Client uses functionality of the Software to share Content with such other users and visitors. Client grants to isymtec.ai the non-exclusive, in terms of time and territory unlimited, sublicensable, transferable, royalty-free and irrevocable right to use the Content for own purposes of performing isymtec.ai’s obligations under the Agreement and of improving and optimizing the Software and specific functionalities thereof, including for bug fixing, testing and rectifying defects as well as for statistical analyses.
  3. Client represents and guaranties that (i) it has sufficient rights to upload and generate the Content, (ii) there are no third-party rights, including privacy rights and intellectual property rights which restrict the uploading or generation of the Content by Client and the use of the Content by isymtec.ai, (iii) the Content does not contain any viruses, trojans, malicious code or other harmful or destructive content, and (iv) the Content does not contain any infringing, libellous, or otherwise unlawful or tortious content.
  1. Proprietary Rights
  1. Information protected by password or available on a part on the Site with restricted access is isymtec.ai’s proprietary information. You may use such information only for the purpose stated in connection with such information and may not disclose isymtec.ai’s proprietary information to any third party.
  2. isymtec.ai and its suppliers own and shall retain all proprietary rights, including all copyright, database rights, patent, trade secret, trademark and all other intellectual property rights in and to the Software. With respect to any parts of software included with the Software, which is licensed to isymtec.ai by its suppliers, such suppliers are third party beneficiaries of this Agreement. The Software may only be used by Clients as prescribed by the Documentation.
  1. Warranties
  1. The quality, nature and extent of the services to be performed by isymtec.ai are determined by the Agreement and the Documentation. Any other information or requirements do only become part of the Agreement if isymtec.ai and Client agree so in writing. Product descriptions, illustrations, test programs etc. represent service specifications only but do not constitute guarantees or agreements on certain specifications. In order to be valid, an agreement on a guarantee requires the written confirmation from isymtec.ai’s management.
  2. Client’s claims for damages for a breach of this warranty are subject to the limitations according to clause 14 of these Terms.
  1. Maintenance and Support
  1. isymtec.ai shall provide support services for the Software including the rectification of defects in the Software to the extent agreed in the Agreement.
  2. Client shall report any defects exclusively via the email support system offered by isymtec.ai, the support option within the Software or isymtec.ai’s help desk phone number.
  3. isymtec.ai shall keep Client informed at reasonable intervals and to a reasonable extent of the status of the rectification of a defect. isymtec.ai is not obliged to a specific time at which a defect shall be removed.
  4. In case of defects of the Software leading to a material reduction of the usability of the Software, isymtec.ai shall be required to use commercially reasonable efforts to rectify the defect and if isymtec.ai is unable to materially restore such functionality within a reasonable period of time from the date of notice of said defect, Client shall be entitled to terminate the Agreement.
  5. Under no circumstances Client or any third party shall be entitled to obtain the source code of the Software.
  1. Legal Disputes and Right of Retention
  1. Claims that are made against Client by third parties alleging the infringement of property rights arising from the use of the Software, Client shall notify isymtec.ai immediately at least in text form or by email. isymtec.ai has the right to fulfil or defend the third-party claims or end the dispute by way of settlement at its own discretion. Client grants isymtec.ai the sole authority to decide on defense of rights and settlement negotiations. Client shall entitle isymtec.ai with any powers of attorney which may be required in this regard on a case-by-case basis and Client shall support isymtec.ai in any manner which may be reasonably expected.
  2. In case of an impairment of the permitted use of the Software due to a legal defect, isymtec.ai shall remove the reason for the claim for infringement of property rights within a reasonable period. isymtec.ai shall do so either by acquiring the right to continue to use the relevant services or by amending or replacing the relevant services within a reasonable scope, at its own discretion.
  3. isymtec.ai shall only be liable in respect of the infringement of property rights to the extent that the Software has been used in accordance with these Terms and Agreement. isymtec.ai shall not be liable if the Software is modified by Client or third parties or is combined, operated or used with programs or data not provided by isymtec.ai or approved in advance in writing by isymtec.ai and third-party claims are derived therefrom. If claims are made against isymtec.ai within the scope of the foregoing provisions, Client shall indemnify isymtec.ai from such claims upon first request.
  4. Client may only invoke a right to set-off and assert a right of retention to the extent that its claims have been (i) finally established by a court of law, (ii) are uncontested or (iii) have been acknowledged by isymtec.ai.
  5. Client shall not assign any of its rights or obligations under these Terms or under the Agreement without the prior written consent of isymtec.ai.
  1. Payment
  1. Client’s right to use the Software in accordance with these Terms and the Agreement shall be free of charge unless otherwise stipulated
  2. isymtec.ai may update these Terms with future effect from time to time and offer its products and services on a chargeable basis.
  1. Subscription Term and Termination
  1. The duration of the Agreement shall start on the date agreed between isymtec.ai and the Client and end with termination (“Subscription Term”).
  2. isymtec.ai and Client may terminate the Agreement at any time.
  3. isymtec.ai has the right to extraordinarily terminate the Agreement for good cause. Good cause shall include without being limited to Client breaching the use restrictions under this Agreement.
  4. Following the end of the Subscription Term, Client shall have the right to create backup copies of the content for a period of thirty (30) days. isymtec.ai shall be entitled to restrict Client’s access to the content thereafter. isymtec.ai may retain the content for the purpose of enabling any future use of the Software by Client.
  1. Other Services
  1. isymtec.ai and Client may agree on the provision of additional services by isymtec.ai to Client (“Services”) on a case by case basis. The Services may include but are not limited to training and enablement services and/or general consulting services in connection with the use of the Software by Client. isymtec.ai and Client shall agree on the scope of the Services as well as the Service fees and the Service term on a case by case basis.
  2. All Services shall be rendered on a time and materials basis according to the conditions set out on a case by case basis.
  3. When providing the Services, isymtec.ai does not owe and shall not be liable for any specific outcome or result vis-à-vis Client.
  4. Client agrees to provide reasonable cooperation and information as necessary to permit isymtec.ai to perform the Services. isymtec.ai staff shall not be integrated into the operational organization of the Client. Instructions to isymtec.ai staff must not be given by Client’s staff or representatives but only by isymtec.ai’s representatives.
  1. Confidentiality
  1. Information that is directly or indirectly disclosed or made accessible in connection with the Agreement to isymtec.ai by or on behalf of Client, or to Client by or on behalf of isymtec.ai, and which is identified as ‘confidential’ or ‘proprietary’ or which, given the nature of the information or circumstances surrounding the disclosure (“Confidential Information”), should reasonably be understood by the recipient to be confidential or proprietary, but does not include information that the recipient can demonstrate it already rightfully knew or possessed, becomes public through no fault of the recipient, is received by the recipient from a third party with the legal right to disclose it, or can be shown to have been independently developed by the recipient without reference to the discloser’s Confidential Information.
  2. Confidential Information that have been received by isymtec.ai or the Client may be used only to exercise its rights and fulfil its obligations under the Agreement and shall take reasonable measures to avoid unauthorized disclosure or misuse of Confidential Information. Confidential Information shall not be disclosed, except (i) to its employees, subcontractors, or professional advisers who have a legitimate need to know the Confidential Information and are legally bound to keep such Confidential Information confidential, (ii) to a potential acquirer of its relevant assets, stock, or business under a strict duty of confidentiality, but only to the extent such potential acquirer has executed a term sheet, letter of intent or other similar agreement to negotiate such acquisition, and (iii) as required to be disclosed by applicable law, or judicial or other governmental or regulatory order. These Terms and the Agreement constitute Confidential Information of isymtec.ai.
  1. Personal Data
  1. Information or set of information relating to a person that identifies such person or could be used to identify such person, including without limitation, a person’s name, address, phone number, email or call data records (“Personal Data”) shall be processed in compliance with the applicable regulations only.
  2. symtec.ai and Client shall comply with any applicable laws concerning the protection of personal data including but not limited to the EU General Data Protection Regulation. If required, isymtec.ai and Client shall enter into a separate written agreement on the processing of personal data.

 

  1. Liability
  1. isymtec.ai is liable for (i) injury to life, body or health, (ii) damage caused intentionally or with gross negligence, (iii) damage resulting from the breach of isymtec.ai’s primary obligations whereby primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Client may rely and (iv) damage resulting from the absence of any guaranteed characteristics.
  2. Other liability that is not listed in the foregoing provisions shall be excluded, as long as permitted by law.
  3. The total liability of isymtec.ai arising out of or in connection with these Terms and the Agreement, whether in contract or tort or otherwise shall in no circumstances exceed a sum equal to the damage stipulated by court.
  4. isymtec.ai shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
  5. Client agrees and acknowledges that the Software offers an engineering simulation platform that analyses data uploaded by Client and provides simulation capabilities relating to MBS (Multi-Body System) modeling and simulation.
  6. Therefore, isymtec.ai is not responsible for (i) the correctness, completeness, integrity and accuracy of any data transmitted to isymtec.ai or uploaded into the Software by Client, (ii) any conclusions drawn by Client or any third party from any simulation, calculation, modelling or other process or operation executed by the Software or by Client using the Software, (iii) the technical, scientific, legal and commercial feasibility of any project, product and undertaking of Client or any third party, and (iv) the economic and financial viability of any project, product and undertaking of Client or any third party.
  1. Revisions
  1. isymtec.ai may amend and update these Terms with future effect at its own discretion and as necessary for technical, economic or legal reasons.
  2. Any revision of these Terms shall be announced to Client via email no later than four (4) weeks before their proposed effective date.
  3. Client may either approve or object to the revision before effective date. The revision shall be deemed approved by Client, unless Client objects to the revision before effective date. isymtec.ai shall expressly inform Client thereof in the respective announcement.
  1. Applicable Law and Jurisdiction
  1. These Terms and any agreement and all rights arising from or in connection therewith shall be governed by German law excluding any of its conflict of laws provisions which lead to the application of the law of a country other than Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
  2. If Client is a business or a business person acting in the course of their business, the venue of jurisdiction for all disputes arising from or in connection with these Terms and any Agreement shall be Fuerth, Germany. In other cases, the statutory rules on the place of jurisdiction shall apply.
  1. Severability Clause
  1. Amendments and supplements to these Terms or the Agreement shall be subject to a written agreement by Client and isymtec.ai in order to be valid. The same shall apply to any agreement to deviate from or cancel this requirement of written form.
  2. Should any provision of these Terms be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions of these Terms shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what isymtec.ai and Client would have agreed, pursuant to the meaning and purpose of the original provision and of these Terms, if they had recognized the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain time, such ineffective or time shall be replaced by the time which comes as close as legally possible to the original time. The foregoing shall also apply to any possible omission in these Terms that was not intended by isymtec.ai and Client.
  1. Miscellaneous
  1. Where the expressions ‘in writing’, ‘written form’ or variations thereof are used in these Terms, this shall mean ‘in writing’ within the meaning of German Civil Code. The electronic exchange of copies of documents signed by hand shall be sufficient. Unless expressly stated otherwise in these Terms, simple emails shall not be sufficient.
  2. Except as otherwise expressly provided for in these Terms, any notices and declarations submitted by Client to isymtec.ai, including but not limited to notices of termination or setting of deadlines, shall be made at least in text form to be valid; a simple email shall suffice if not stipulated otherwise in these Terms.
  3. These Terms and/or any agreement between isymtec.ai and Client do not create any company, joint venture, partnership, or any company of any other kind between isymtec.ai and Client.
  4. The titles of clauses shall not affect their interpretation.
  5. References to statutory provisions in these Terms shall be for clarification purposes only. Consequently, statutory provisions shall also apply without such clarification provided that they are not directly amended or expressly excluded by these Terms.

isymtec.ai GmbH
September 2018