General Terms and Conditions

1 Agreement on validity, general

1. All contractual relationships, deliveries and services of Building Information Cloud GLWG GmbH (hereinafter “BIC“) are based on these General Terms and Conditions (hereinafter “GTC“). They are an integral part of all contracts that BIC concludes with its contractual partners (hereinafter “Customers“) regarding the services, uses or deliveries offered by BIC in detail. (BIC and Customer hereinafter individually the “Contractual Partner” and jointly the “Contractual Partners“). The GTC shall only apply if the Customer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.
2. These GTC shall also apply to all future deliveries, services or offers made to the customer without these GTC having to be agreed separately in each individual case.
3. These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer or third parties shall only become part of the contract if and to the extent that BIC has expressly agreed to their validity in writing. General terms and conditions of the Customer or third parties shall therefore not apply subject to express consent, even if BIC does not separately object to their applicability in individual cases or refers to the exclusive applicability of these GTC. The requirement of consent shall apply in any case. In particular, BIC’s reference to a letter containing or referring to the General Terms and Conditions of the Customer or a third party, as well as the unconditional performance or delivery in the knowledge of the General Terms and Conditions of the Customer or a third party, shall not constitute consent to the application of those General Terms and Conditions.
4. These GTC apply in addition to individual contracts or offers made by BIC. If and to the extent that agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) contain deviations from these GTC, they shall in any case take precedence over these GTC. The remaining provisions of these GTC shall remain unaffected.
5. if written form is required in these GTC, § 126 BGB shall apply in principle. Otherwise, unless individual provisions of these GTC expressly provide otherwise, the telecommunication transmission of a copy of the respective document, in particular as a PDF copy by e-mail, shall suffice, provided that the copy of the signed declaration(s) is transmitted.
6. references to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

2 Offer, conclusion of contract

1. The products and services of BIC displayed, advertised and offered on the website of BIC thinkbic.de (hereinafter “Website“) or in other advertising media or on other platforms do not constitute binding offers. This also applies if the Customer is provided with documents, demo access, other product descriptions or examples of BIC’s services.
2. The contract is only concluded when BIC accepts the order or contract by means of an order confirmation after receipt of the order or contract by the customer. Provided that the Customer complies with the provisions of these GTC and pays all applicable fees on time, BIC shall grant the Customer access to the Cloud Service. The term “Cloud Service” means the provision of access to BIC’s web- and cloud-based Software-as-a-Service application, the use of the Software, all related support and maintenance services provided by BIC and the associated documentation. The software is set up on a server that is accessible via the Internet. Access is via the browser after the customer has created a customer account. The access data is provided by BIC and can be customized by the customer.
3. Individual offers of BIC shall have a validity and acceptance period of three (3) weeks from receipt of the offer by the Customer, unless the offer provides otherwise. BIC may accept the Customer’s orders or commissions within four (4) weeks of receipt.
4. The legal relationship between BIC and the Customer shall be governed by the contract concluded for the provision of a service by BIC, including these GTC. The contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Subsidiary agreements and additions to the concluded contract must be made in writing.
5. Notwithstanding paragraph 4 sentence 3 above, it shall be sufficient for the conclusion of a contract if an individual offer from BIC that has not been signed in person is signed and returned by the Customer.

3 Scope of services, availability

1. the scope of access to the cloud service for the customer, including the range of functions, scope of use and specifications, shall be determined by the packages ordered by the customer (e.g. Individual, Basic, Office, Pro or Individual) in accordance with the product and service description. The intended use of the Cloud Service and the technical requirements are also set out in the Product and Service Description. BIC shall inform the Customer about updates to the functional scope of the packages and about new service offerings. Customer support is provided in accordance with the agreements in the respective package. BIC processes and protects the transmitted data in accordance with the provisions of these GTC and the offer and order form.
2. BIC guarantees the following availability of the software: The SLA availability is 99% and applies from Monday to Sunday, 00:00 to 24:00. The measurement takes place at the transfer point and covers a measurement range of one year. The software is considered available if it can be used without serious disruptions to operations. When calculating the SLA availability, interruption times that take place for maintenance purposes (e.g. maintenance windows, release changes, offline backups) and interruption times due to force majeure or interruption times caused by the customer or third parties are not taken into account.
3. The storage space required for the contractual use of the Cloud Service and the associated data processing operations shall be provided by BIC in accordance with the scope agreed in the offer and order form (Basic, Office, Pro) and for the duration agreed therein.
4. The customer shall not be entitled to any claims or rights due to temporary short-term unavailability of the cloud service
5. BIC’s Cloud Service may be continuously developed and adapted to meet the current needs of customers, to take account of technological progress and to ensure compliance with applicable laws. If further developments or adaptations are integrated into the Cloud Service as standard functions, BIC shall inform the Customer appropriately of these changes by updating the functional description before they come into effect. If the Customer can no longer reasonably be expected to continue the order due to these further developments or adaptations, the Customer may terminate the affected order in writing with a notice period of two (2) weeks before the announced changes come into effect. Otherwise, the further developments or adaptations shall automatically be integrated into the Cloud Service and become part of its functionality. When informing the Customer about the further development and adaptation of the Cloud Service, BIC shall expressly draw the Customer’s attention to this situation and the significance of its behavior. Further developments are provided by BIC through updates and upgrades.

4 Provision of services, force majeure

1. Unless otherwise agreed, the service shall be provided after receipt of payment of the total amount owed. Services can only be used after successful payment.
2. The dates stated in the contract or in BIC’s offer or order confirmation are binding. The deadlines specified therein must be met by both contracting parties. The customer is obliged to provide the details, documents and information required for BIC to provide the services as soon as possible and to perform any other acts of cooperation required on his part.
3.  BIC shall not be responsible for delays in performance due to force majeure or due to circumstances for which the customer is responsible and shall be entitled to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up and planning period. BIC shall notify the customer of delays in performance or changes in performance due to force majeure.
4. Should one of the contracting parties be prevented in whole or in part from fulfilling its obligations under the contract due to force majeure pursuant to § 4 para. 6 or other circumstances which it cannot reasonably be expected to remedy, these obligations shall be suspended until the disruptions and their consequences have been remedied. In this case, the contractual partner concerned shall have no claim to consideration. The contractual partner concerned is obliged to inform the other contractual partner immediately and to take all technically and economically reasonable measures to restore the conditions for the fulfillment of the contract
5. Force majeure is an external event caused by elementary forces of nature or by the actions of third parties, which is unforeseeable according to human insight and experience, which cannot be prevented or rendered harmless by economically acceptable means, even with the utmost care that can reasonably be expected in the circumstances, and which cannot be accepted by the affected contractual partner due to its frequency

5 Prices, terms of payment, due date

1. Agreed prices shall apply to the scope of performance or scope of delivery specified in the signed contract, otherwise in the offer or in the order confirmation of BIC. Subsequently ordered change requests and additional services (including additional or special services) may be charged separately.
2. All prices are quoted in Euro plus the statutory value added tax.
3. All invoices of BIC shall be due for payment in EURO within fourteen (14) days from the invoice date to the business account of BIC indicated in the offer or the order confirmation. Upon termination of the contract, access to the relevant services, including the Cloud Service, shall be automatically terminated and all outstanding payment obligations of the Customer shall become due for payment immediately.
4. Further costs may be incurred outside the European Union in individual cases for which BIC is not responsible and which are to be borne by the customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of funds if the delivery is not made to a country outside the European Union, but the customer makes the payment from a country outside the European Union.
5. If the Customer fails to pay on the due date, the outstanding amounts shall bear interest from the due date at 9 percentage points above the prime rate; the assertion of higher interest and further damages in the event of default as well as the statutory lump sum pursuant to Section 288 (5) BGB shall remain unaffected. furthermore, BIC shall be entitled to suspend the services it performs until receipt of payment. BIC’s right to withdraw from an individual order shall be governed by the statutory provisions.
6. The Customer shall only be entitled to set-off or to exercise rights of retention if the claim for set-off or the claim used to assert the right of retention has been recognized by BIC in writing or has been legally established.

6 Copyright, rights of use

1. BIC reserves the ownership or copyright to all offers and cost estimates submitted by BIC as well as documents and aids made available to the Customer in the context of an offer. The Customer may not, without BIC’s express consent, make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them, either as such or in terms of content. At BIC’s request, the Customer shall return these items to BIC in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of customary data backup.
2. The services provided by BIC are legally protected All rights to the Cloud Service, in particular with regard to the software, the source code and object code and to related Confidential Information, including copyright, any patent rights, trademark rights and other intellectual property rights as well as legal claims, expectancies and titles are exclusively vested in BIC.
3. BIC grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the provided Cloud Service for internal operational purposes and the defined purpose of use in accordance with these GTC during the term, in accordance with the agreed package (Basic, Office, Pro). It is made clear that, irrespective of these GTC, the customer is not granted any right to use the source code of the software and that the cloud service does not contain any on-premise components for which the customer could require installation in its own IT systems.
4. The customer may not use the cloud service beyond the permitted scope of use in the offer and order form or for purposes other than the defined purpose. Unless expressly provided for in the offer and order form and exclusively for the intended use of the cloud service, it is not permitted to grant third parties access to the cloud service or to use the service for the benefit of third parties.
5. The customer is prohibited, except to the extent permitted by applicable law, from
   1. decompile, reverse engineer, reconstruct or analyze (e.g. reverse engineer) or otherwise derive the source code or object code of the Software;
   2. to translate, adapt or edit the software, to create derived versions or to modify the software;
   3. to develop programs based on or derived from the Software or parts thereof and to distribute such programs or make them available to third parties
   4. to use the Cloud Service in a way that competes with the Cloud Service
   5. circumvent, interfere with, impair or disable security measures and identification measures of the Cloud Service
   6. sell, license, transfer, assign or offer the Cloud Service or related services or rights thereto to third parties for use in any way;
   7. transfer data and information to the Cloud Service without sufficient authorizationThe customer is prohibited, except to the extent permitted by applicable law, from
   8. transfer illegal or harmful data, programs or code to the Cloud Service

6. The customer may only reproduce the software to the extent necessary for proper use and covered by the intended use. This includes loading the software into the working memory on BIC’s server, but not the temporary installation or storage of the software in the customer’s IT systems or on other data carriers or hardware used by the customer,

7 Warranty, liability, statute of limitations, liability for defects

1. Unless otherwise provided for in these GTC, including the following provisions, the Customer’s warranty rights and BIC’s liability in the event of a breach of contractual and non-contractual obligations shall be governed by the statutory provisions.
2.  BIC shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In other cases, BIC shall only be liable – unless otherwise provided for in paragraph 3 – for damages resulting from the breach of a material contractual obligation; in this case, however, liability shall be limited to compensation for the foreseeable, typically occurring damage. Sentences 1 and 2 shall also apply to breaches of duty by persons whose fault BIC is responsible for under statutory provisions (e.g. vicarious agents).
3. Liability for damages resulting from injury to life, body or health and under the Product Liability Act shall remain unaffected by the above limitation of liability. Furthermore, the above limitation of liability shall not apply if BIC has fraudulently concealed a defect or has assumed a guarantee for the quality of the product.
4. The cloud service is based on AI-controlled software, which is why errors may occur in isolated cases due to the lack of verification of the results by BIC. Any test results, suggestions and information provided by the Cloud Service are therefore not legally binding and serve only to support the Customer and must be checked by the Customer in each individual case for feasibility, practicability, completeness and correctness. In accordance with this clause, BIC shall not be liable for test results, recommendations, suggestions or other information provided to the Client via the Cloud Service or via other documents or links.
5. BIC warrants that the Cloud Service will be available during the agreed term in accordance with the functions and specifications set out in the Product and Service Description. If the Cloud Service cannot be used as intended, BIC shall be obliged to remedy the defects in accordance with the corresponding package of the order (Basic, Office, Pro).
6. The statutory provisions shall apply to the limitation period.

8 Obligations of the customer

1. The customer is obliged to cooperate insofar as this is necessary for the proper provision of the service. In particular, the customer shall provide all documents necessary for the provision of the service in full and in good time without being requested to do so, so that a reasonable processing time is available.
2. The customer may only enable the cloud service to authorized users to the agreed extent in accordance with the contractual agreement. The access data of the individual authorized users may not be used more than once or simultaneously by more than one person. However, the customer may transfer the access data from one person to another if the authorizations on the customer side change. The customer shall be responsible for the conduct of the authorized users in the same way as for its own conduct and shall be obliged to ensure that they use the cloud service in accordance with the contract
3. Each authorized user shall receive access data (user name and password) for this purpose in order to confirm their identity and verify their authorization to use the cloud service in accordance with the access rights granted. The access data must be treated as strictly confidential and protected from access by unauthorized third parties, both by the authorized users and by the customer itself. The customer is obliged to take appropriate measures to protect the access data in accordance with the provisions of these GTC and to ensure their confidentiality.
4. Authorized users such as registered service providers, subcontractors and end customers may only use the parts of the Cloud Service assigned to them. For the duration of the order, BIC shall make the current version of the software available via the website to the number of authorized users agreed in the offer and order form.
5. The customer shall bear sole responsibility for
   1. establishing and maintaining the data connection between the customer’s IT systems and BIC’s systems, as well as for authorizing and managing Internet access to the Cloud Service, identifying and authenticating authorized users and controlling against unauthorized access by unauthorized users;
   2. all activities that take place under the user names, passwords and/or user accounts of the Authorized Users when accessing the Cloud Service and that result therefrom.
6. The customer is obliged to inform BIC immediately of any violations of the usage specifications and of unauthorized use or unauthorized access to the Cloud Service. In addition, the customer must take reasonable measures to ensure the immediate prevention of any unauthorized use of the Cloud Service.
7. If the customer fails to cooperate as required or is in default with the acceptance of the service offered by BIC, BIC shall be entitled to terminate or withdraw from the contract without notice after setting a reasonable deadline for cooperation in writing. This shall not affect BIC’s right to compensation for the additional expenses incurred as a result of the delay or the Customer’s failure to cooperate, as well as the damage caused, even if BIC does not exercise its right of termination. If the Customer is responsible for a delay or non-performance of the service by BIC, he shall not be entitled to any compensation or reimbursement.

9 Blocking of the account

1. BIC may deactivate, suspend or restrict the Customer’s and individual Authorized Users’ access to the Cloud Service with prior notice and a reasonable period of time to remedy the problem if:
   1.  the customer fails to pay an outstanding amount within the specified payment period and no material breach of the payment obligation is cited in writing by BIC; or
   2. the customer repeatedly (at least two (2) times) provides insufficient or no information as part of the support process, which significantly delays the processing of the support request.

2. BIC reserves the right to disable, suspend or restrict the Customer’s and individual Authorized Users’ access to the Cloud Service without prior notice if:

1. 1. the customer commits actual violations of applicable law or there is reasonable suspicion thereof;
   2. the use of the cloud service by the customer or authorized users endangers the security of the service or encourages third parties to compromise security; or
   3. the customer or an authorized user fails to remedy or repeatedly commits a material breach of the contract despite prior warning with a reasonable deadline.

10 Data protection, password security, customer data

1. BIC is entitled to store the data relating to the respective order electronically and to process and use this data for operational purposes in accordance with the statutory provisions and the BIC Data Protection Regulations.
2. The disclosure of data to third parties is only permitted insofar as this is the subject of the contract (e.g. when registering domains or similar) or is necessary for the execution of the contract or disclosure is required by law or official order. As part of the provision and execution of the Cloud Service, BIC may grant third parties access to the software used by the customer and the customer account, insofar as this is necessary for the provision and execution of the service. BIC shall ensure that these third parties fully comply with the contractual provisions on the protection of customer data and confidentiality and enter into comparable obligations towards BIC.
3. The contracting parties are obliged to transmit passwords, personal data and other highly sensitive information only securely.
4. The sole rights to the Customer Data transmitted or made accessible in connection with the Cloud Service lie with the Customer. The Customer shall be granted the right to grant BIC the exclusive right of use for the provision, further development and implementation of the Cloud Service as well as for the organizational processing of the data. The customer shall bear full responsibility for the accuracy, quality, legality and completeness of the customer data provided to BIC.
5. BIC is entitled to collect, use and process the usage data in anonymized and aggregated form for technical and market-related analyses, benchmarking, the further development of the Cloud Service and for marketing purposes in connection with the Cloud Service.
6. After the customer has deleted his account, all data (project data, data on project participants and subcontractors) will be removed. The account cannot be restored. Backing up the data before the account is deleted is the responsibility of the customer and not of BIC.
7. The legal obligations arising from the General Data Protection Regulation (EU-GDPR), the Federal Data Protection Act (BDSG) and the Telecommunications Act (TKG) remain unaffected.

11 Place of jurisdiction, choice of law

1. The contractual relationship between BIC and the customer shall be governed by the laws of the Federal Republic of Germany, excluding the provisions of private international law.
2. For all disputes arising from or in connection with the contractual relationship between BIC and the customer (including those concerning the existence or termination of the contractual relationship), the courts at BIC’s registered office shall have exclusive jurisdiction in the first instance, insofar as legally permissible. this applies regardless of whether the customer is domiciled in Germany or abroad.

12 Final provisions

1. Amendments and additions to all contracts must be made in writing to be effective. This shall also apply to amendments to this paragraph.
2. BIC reserves the right to amend these GTC, provided that the amendments are reasonable for the customer and the essential provisions of existing contractual relationships remain unaffected. BIC shall notify the Customer of the amendments in writing at least six (6) weeks before they come into effect. If the Customer does not agree to the changes, he may object in writing within one week before the planned entry into force of the changes. In the absence of an objection by the Customer, the changes shall be deemed approved. When notifying the Customer of the changes to the GTC, BIC shall expressly draw the Customer’s attention to the significance of his behavior.
3. should provisions of these GTC or a provision included in them in the future be wholly or partially invalid or unenforceable or lose their legal validity or enforceability at a later date, this shall not affect the validity of the GTC. the same shall apply if contracts between the contracting parties contain a loophole. In place of the invalid or unenforceable provision or to fill the loophole, an appropriate provision shall apply which comes closest to what the contracting parties intended or would have intended in accordance with the meaning and purpose of the contract if they had considered this point when concluding this contract or when subsequently including a provision.
4. The severability clause in Section 14 (2) should not be understood as a reversal of the burden of proof, but rather as a waiver of Section 139 BGB.