The provider creates and distributes software solutions in the field of “Building Information Modeling” (“BIM“) and building data modeling.
The Customer requires a software application to carry out its project planning. For this purpose, the Provider offers the temporary use of the software application “BIMcosmos” via the Internet against payment. There are different modules which are provided for use individually or in total against payment.
By this Agreement, Provider and Customer (collectively, the “Parties“) agree on the terms and conditions for the use of the Platform and the Software.
In light of the foregoing, the Parties hereby agree as follows:
Subject of the contract
The Provider shall provide the Customer to the agreed extent in accordance with the service description (Annex 1.1), a cloud-based software-as-a-service application called “BIMcosmos” (“Software“) for the use of its functionalities via the medium of the Internet by means of access via a browser in the area of a software for project creation in the context of BIM .
The software is modular and consists of a basic module and further modules with extended functionalities. The customer can either book only the basic module or a combination with further modules.
The Provider is free to add further elements to the software. A reduction of the functionalities presented in the service description valid at the conclusion of the contract is only permissible insofar as no essential interests of the Customer are restricted.
Integration of the services of the customer, the project parties or third parties
The software supports the customer by means of the functionalities provided.
The functionalities of the software are freely definable and determinable in each case. This means, in particular, that the requirements, deadline lengths or other prerequisites contractually agreed upon by the Customer and the other parties involved by the Customer in the construction project to be developed by means of BIM (collectively: “Project Parties“) or determined by law/judiciary law, in particular, for example, in the case of obstruction or bad weather notifications, effective scheduling and setting of deadlines with regard to design rights, acceptance, etc., are not controlled or checked by the software. The project parties are responsible themselves in this respect when dealing with the construction project.
The data and files included by the project parties are not checked for correctness and plausibility by the provider or the software. The project parties are free and solely responsible for the creation, processing and modification of the data.
The project parties retain sovereignty over the entered data and access to it, as well as the possibility to take note of, change or delete the entered data.
Insofar as the customer grants a third party a position through which the third party can change or process entered data, the customer is responsible for the scope of the grant, the manner in which it is exercised and its correctness.
Necessity and use of additional software services
The software is basically used in a current common web browser. In addition, the software is partially integrated into the Microsoft 365 system and is operated as an “app” in the Microsoft “Teams” platform. The integration in Microsoft 365 is not required to use the software properly and for the intended purpose, but only serves to improve integration in workflows. Use of the software requires a current and valid subscription and/or license to Microsoft 365 software services at all times, which includes at least the “Teams” service.
In addition, a commercially common e-mail address is required to use the Software (collectively, “Additional Services“).
The Provider is not responsible for the smooth and trouble-free use of Microsoft 365 software services and other services (“external software services“).
The Customer itself is responsible for entering and maintaining its data and information required to use the external software services.
For the avoidance of doubt, Provider does not grant any licenses or rights for the services mentioned in this clause, but the use of the Software becomes possible only through the current and valid subscription and/or license.
The Provider guarantees an availability of the services at the delivery point of at least 99.5% per month. The handover point is the router exit of the Provider’s data center.
Availability shall be deemed to be the Customer’s ability to use all main functions of the Software. Maintenance times as well as times of malfunction in compliance with the remedial time shall be deemed times of availability of the software. Times of insignificant malfunctions shall not be considered in the calculation of availability. The Provider’s measuring instruments in the data center shall be decisive for the proof of availability.
The Customer shall immediately report any malfunctions to the contact details provided on the Provider’s website (www.bimcosmos.com ).
Legal claims of the customer against the provider remain unaffected.
Updates and performance enhancements
The Provider grants the Customer the use of the respective current version of the Software for the agreed number of users (“Authorized Users”).
The customer may increase or reduce the number of authorized users of the software and/or additional modules as required, subject to a fee. This shall not affect sec. 10.2.
The Provider may update and further develop the software at any time and, in particular, adapt it due to a changed legal situation, technical developments or to improve IT security. In doing so, the Provider shall give due consideration to the legitimate interests of the Customer and inform the Customer in good time of any necessary updates.
The Provider will improve the Software through ongoing updates (bundling of multiple defect fixes in the Software) and upgrades (functional improvements and/or customizations of the Software) and new versions (changes in the functionalities of the Software). The upgrades and new versions may be offered by the Provider free of charge or for a fee. In doing so, the Provider does not limit the functional scope of the Software for the intended use, in particular not for functions that the Customer may rely on the possibility of using, unless mandatory legal requirements would oblige the Provider to do so.
The customer has no claim to the creation/provision of a specific update, upgrade or version. Excluded from this are mandatory security updates or updates and upgrades that are required due to security-relevant circumstances and must be carried out immediately.
The Provider does not owe an adaptation to individual needs or the IT environment of the Customer, unless the parties have agreed otherwise.
The Provider shall take measures to protect the data in accordance with the current state of the art. However, the Provider shall not be subject to any custodial or safekeeping obligations with regard to the data. This does not affect the obligation under sec. 8.1.
The Provider does not provide any storage space or other locations for storage or filing of data to be processed or handled by the Project Parties. The software platform is provided, on the interface of which links to external file storage locations can be set and/or processed, where the project-specific data of the project parties are located.
Scope of use and rights
The Customer shall receive the simple, i.e. non-exclusive, non-sublicensable and non-transferable right, limited in time to the duration of the Agreement, to use the Software or the results of the expiration of the Software in accordance with the provisions of this Agreement for the specified number of authorized users for the respective current version of the Software.
A physical transfer of the software to the customer does not take place.
In principle, the customer may not edit or modify the software. This does not apply to changes that are necessary for the correction of errors, provided that the Provider refuses to correct the error or is unable to correct the error due to the opening of insolvency proceedings against its assets.
If the Provider creates new versions, updates, upgrades or other new deliveries with regard to the Software during the term, the above rights shall also apply to these.
The customer shall not be entitled to any rights not expressly granted to the customer above. In particular, the customer is not entitled to use the software and/or the platform beyond the agreed use or to have it used by third parties, i.e. other than the authorized users, or to make the software accessible to third parties. In particular, it is not permitted to reproduce the software, to sell it or to make it available for a limited period of time, in particular not to rent or lend it.
The customer and, through him, the project parties may only use the software within the scope of their own business activities and by their own personnel. The customer is not permitted any further use of the software.
Troubleshooting and support for the software; maintenance work
The monitoring of the functional capability of the software is generally guaranteed from Monday to Friday, 09:00 – 17:00 (“support time“), except on national holidays, the Feast of the Three Kings, Corpus Christi, Reformation Day, All Saints’ Day and the Day of Prayer and Repentance.
Provider will respond to Customer’s inquiries, which may be made by e-mail or contact request, regarding the use of the Software, by telephone or text within the support time after receipt of the respective question; response times may vary depending on the module.
Requests of the customer, which affect the application of the provisions set forth in para. 3 shall not be processed by the Provider, unless they relate to the interface between the Software and the aforementioned services of external service providers. The Provider shall inform the Customer as soon as possible that it is not responsible for the content of the request.
The Provider shall regularly perform maintenance on the Software and inform the Customer thereof in due time. Maintenance shall be performed regularly outside the Customer’s usual business hours, unless maintenance must be performed at a different time due to compelling reasons.
The Provider shall notify the Customer in advance of upcoming maintenance work and, in accordance with the technical conditions, in the shortest possible time outside the support time pursuant to sec. 7.1 carry out the maintenance work. If and to the extent that the Customer is able to use the Software during the maintenance periods, there shall be no legal claim to this. If the use of the software during the maintenance work results in a reduction or cessation of performance, the customer shall have no claim to liability for defects or damages.
Cooperation obligations of the customer / Technical requirements
The customer remains the owner of the data stored on the provider’s servers and can demand their return at any time. The customer is responsible for a sufficient backup of the data.
The Provider shall provide the Customer with access data for the number of authorized users immediately and in electronic form after conclusion of the contract. The Customer shall generate a “User ID” and a password per authorized user for access to the initial use of the software itself, which are required for further use of the software. The customer is obliged to keep the “User ID” and password secret and not to make them accessible to third parties. Access is only permitted with this “User ID” and password.
The project parties themselves are responsible for entering and maintaining the data and information required to use the software. The customer has to inform the project parties about this.
The Customer shall take care of and be responsible to the Provider that the authorized users, be they employees of the Customer or contractual partners of the Customer or their employees or third parties, use the software with care and diligence and comply with the agreements of this contract. The Customer shall take the necessary precautions to prevent the use of the Software by unauthorized persons.
On the part of the Customer, an Internet connection and a current common web browser, which has the appropriate hardware and software conditions, as well as the respective current version of Microsoft Teams are required for the use of the software. The Provider is not responsible for the condition of the required hardware and software on the Customer’s side as well as for the telecommunication connection between the Customer and the Provider up to the transfer point.
At all times, the Customer shall use or change and notify the Provider of a current, valid e-mail address under which important information can be transmitted.
The customer is liable for ensuring that the software is not used for purposes that violate the law or official regulations or requirements, or that corresponding data, in particular application data, are created and/or stored or deposited in the software.
The customer undertakes to use the software as intended and in accordance with the contract. He further undertakes to influence third parties and his employees to use the software as intended and in accordance with the contract. In particular, it is not in accordance with the intended use and the contract to view, copy and/or modify illegal data of third parties, to initiate or organize processes that impede the accessibility of the software, to embed third-party applications and/or to set data volumes that are unusual for the specific business process or that do not exceed the data volumes defined according to the service description.
Formation and existence of the contract
The contract is concluded only with entrepreneurs, traders and / or freelancers, but not with consumers within the meaning of § 13 BGB.
A contract is only concluded with the confirmation of the provider. An order or an e-mail from the customer aimed at concluding a contract beforehand is considered a binding offer. All general offers and information of the Provider on the Internet are non-binding.
The processing of the order, the contract and the transmission of all information required in connection with the conclusion of the contract is partly automated by e-mail. It must therefore be ensured that the e-mail address deposited with the provider is correct, the receipt of e-mails is technically guaranteed and, in particular, is not prevented by spam filters.
The Provider expressly objects to the Customer’s general terms and conditions; they do not become part of this Agreement.
Remuneration, terms of payment
Unless otherwise agreed, the remuneration shall be based on the Provider’s price list valid at the time the Agreement is concluded or the Agreement is extended (Annex 10.1).
Invoicing shall be carried out according to the term model selected in each case, and the amount of remuneration shown therein shall be due for payment within 14 working days of receipt of the invoice.
In the event of an increase in the number of users or modules after conclusion of the contract, the remuneration shall be owed pro rata (based on the number of authorized users) and to the day for the commenced, current period of the software already booked, in accordance with the currently valid price list. In the event of a subsequent reduction in the number of users, modules or storage space volume, the remuneration shall take effect as of the next period.
The customer is obliged to inform the Provider immediately of any changes to his bank and account details or his credit card details and to ensure that there are sufficient funds in the account on the due date. In the event of a return debit or chargeback, the Customer shall bear the bank charge incurred, insofar as the Customer is responsible for this.
The remuneration is owed regardless of the actual use.
Contract term and termination
The contract shall have the terms and conditions set forth in Annex 10.1 agreed term. If no individual term has been agreed, the contract shall be concluded for the term of one year.
In the case of a term of one year, the contract can be terminated by either party in text form with a notice period of 3 months to the end of the term, otherwise it is tacitly renewed for a further year in each case.
In the event of a contract term of at least one month agreed in text form, the contract may be terminated in text form by either party with one month’s notice to the end of the term, otherwise it shall be tacitly extended by one further month in each case.
The right of each party to terminate the contract without notice for good cause remains unaffected. In particular, the Provider shall be entitled to terminate without notice if the Customer fails to make due payments despite a reminder and a grace period, or if the Customer violates the contractual provisions regarding the use of the Software. Termination without notice requires that the other party is warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.
Exceeding the authorization to use the software; blocking; liability
In the event that the software provided by the Provider is accessed by unauthorized third parties using the Customer’s access data or e-mail address, the Customer shall be liable for any fees incurred as a result within the scope of civil liability until receipt of its order to change the access data or report the loss or theft; this shall not apply if and to the extent that the Customer is not at fault for the access of the unauthorized third party.
The Provider shall be entitled to immediately block access to the Software if the Customer fails to comply with the provisions in sec. 6.3, 6.5, 6.6, 8.3, 8.7 or 8.8 (unless he is not responsible for the infringement) and/or there is a reasonable suspicion that the data stored by the Customer is unlawful and/or infringes the rights of third parties. A reasonable suspicion for an illegality and/or a violation of rights exists in particular if courts, authorities and/or other institutions under public law reliably inform the Provider thereof; if this is done by persons under private law, the allegations must at least be made credible by them. The Provider undertakes to give the Customer the opportunity to comment on an intended blocking before it takes place. The Provider shall immediately notify the Customer of a blocking and the reason for it. The block shall be lifted as soon as the suspicion is invalidated.
Failure to perform and liability
The Provider does not warrant that the Software is fit for a particular purpose unless such fitness is expressly warranted in the specification of services or in this Agreement.
The Provider is not responsible for data located outside the Software, their processing, correctness and completeness as well as the fact that they are not damaged or defective. This also applies to the forwarding by clicking on links to third pages outside the software, which were created or set by the project parties.
The strict liability of the Provider for initial defects according to § 536a BGB is excluded. The Provider shall otherwise be liable as follows:
The Provider shall be liable in each case without limitation for damages arising from injury to life, limb or health. Furthermore, the Provider shall be liable without limitation in cases of intent and gross negligence, fraudulent concealment of a defect, assumption of a guarantee and in all other cases regulated by law.
Insofar as essential contractual obligations of the Provider are affected, the liability of the Provider in the case of slight negligence shall be limited to the foreseeable damage typical for the contract, at most to a maximum amount of € 100,000.00. Material contractual obligations are obligations that arise from the nature of the contract and the breach of which would jeopardize the achievement of the purpose of the contract, as well as obligations that the contract imposes on the Provider according to its content for the achievement of the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance with which the Customer may regularly rely.
In the event of a breach of immaterial contractual obligations, the Provider’s liability is excluded in the case of slightly negligent breaches of duty.
The aforementioned limitations of liability also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault the Provider is responsible for according to legal regulations.
The above limitations of liability shall not apply to liability under the Product Liability Act or within the scope of a warranty assumed by a party.
Cessation of the obligation to perform
The Provider is released from the obligation to perform if the Provider has properly commissioned a service affected by a service disruption from a third party, in particular Microsoft Ireland Operations Ltd. or a company affiliated with it, but the corresponding service is not provided or is not provided correctly by the third party and this is not the fault of the Provider. If, in these cases, the Provider should have its own claims against the Customer with regard to the provision of the services due to the non-performance or poor performance against the third party, the Provider shall assign these claims to the Customer.
The Customer itself is responsible for the declarations of consent required under the provisions of data protection law by its clients, employees and its contractual partners for the collection, processing or use of personal data with or via the Software.
With regard to the contract, everything else concerning data protection is governed by the data protection regulations attached as Annex 15.2 enclosed contract on commissioned data processing.
The Provider undertakes to maintain strictest secrecy about all confidential processes, in particular business or trade secrets of the Customer, which come to its knowledge in the course of the preparation, execution and fulfillment of this Agreement, and to neither pass them on nor exploit them in any other way. This applies to any unauthorized third parties, i.e. also to unauthorized employees of both the Provider and the Customer, unless the disclosure of information is necessary for the proper fulfillment of the Provider’s contractual obligations. In cases of doubt, the Provider shall obtain the Customer’s consent prior to such disclosure.
The Provider undertakes to agree with all employees and subcontractors used by it in connection with the preparation, implementation and performance of this Agreement on a provision identical in content to the preceding paragraph.
The obligation to maintain secrecy shall not apply if the Provider is obliged to disclose the aforementioned information by law or on the basis of a final or non-appealable decision by a public authority or court.
The Schedules to this Agreement are an integral part hereof and any reference to this Agreement shall include the following Schedules:
Appendix 1.1 Performance specification
Appendix 10.1 Price list
Attachment 15.2 Data protection and order processing
Various individual clauses
Amendments and supplements to this Agreement as well as a waiver of a right under this Agreement must be made in writing to be effective, unless a stricter form is required by law. The above provisions shall also apply to the waiver of the written form requirement pursuant to this paragraph.
This Agreement (together with the Annexes) fully reflects the agreements between the Parties with respect to the subject matter of the Agreement; no collateral agreements have been made. All previous agreements of the parties in connection with the subject matter of the contract are replaced by this contract.
Should individual provisions of this contract prove to be invalid, this shall not affect the validity of the rest of the contract. In such a case, the parties are obliged to replace the invalid provision with the legally permissible provision that achieves the purpose of the invalid provision, in particular what the parties intended, in the closest possible approximation. The same shall apply if a gap requiring supplementation should arise during the execution of the contract.
For any notice, statement, information or other communication required by this Agreement to be in writing, the transmission of a signed statement as a PDF copy or other electronic copy by email shall be sufficient for its effective delivery, unless otherwise expressly provided.
Unless otherwise provided for in this Agreement or in mandatory statutory provisions, neither party shall be entitled to assign or otherwise transfer its rights under this Agreement, in whole or in part, to a third party without the prior written consent of the other party.
This contract does not establish any third party rights. This contract does not establish any kind of company between the parties or company-like obligations.
This contract shall be governed exclusively by German law, to the exclusion of international private law and conflict of laws.
The place of jurisdiction for all disputes arising from this contract is Hamburg, insofar as this can be permissibly agreed.