General terms and conditions
Textura provides collaboration and productivity tools for the construction industry. Our SaaS (Software-as-a-Service) solutions serve all construction industry professionals across the project lifecycle.
This agreement is concluded between Textura Europe GmbH (“Licensor”) and the natural or legal person in whose name the contract has been signed below (“you”). The contract is concluded exclusively with a company within the meaning of § 14 BGB.
For certain services, additional general terms and conditions can be agreed if necessary. Your differing conditions are valid only insofar as they have been recognised by the Licensor in writing (this shall apply in particular when the different terms and conditions are not expressly contradicted by the Licensor).
1.1 “Auto Renew” is the process by which the service period for certain services is automatically extended for a further service period under a contract, provided that such services are not terminated in accordance with the conditions of the respective order or this contract. The service description underlying your order shall determine which services shall be automatically renewable and which provisions for such an extension they shall be subject to.
“Services” refers to the total software services of the Licensor, which are detailed in your respective contract and defined in the service description.
“Programmes” refers to the software products owned by or licensed by the Licensor and which are provided by the Licensor under the Services, including programme documentation and any programme updates.
“Programme Documentation” means the user manuals for the programmes referred to in the service description and any help window and readme files for programmes that are accessible through the Service.
“Service description” means the descriptions that apply to your respectively contracted services at the time of concluding this contract.
“Service Period” means the period for which you have ordered the Services.
“User” refers to those employees, contractors and end-users that are authorised by you or on your behalf, to use the Services in accordance with this Agreement and your respective order.
“You” and “your” refers to the natural or legal person on whose behalf this Agreement is signed.
“Your Content” means any text files, images, graphics, pictures, information, data, audio and video materials, photographs and other content and materials (with the exception of your applications) in any format, originating from you or your users.
2 Subject and conclusion of the contract
2.1 The subject of the contract and the obligations of the Licensor are detailed in these terms and the respective service description.
By agreeing to use individual services from the Licensor, you submit a binding offer to conclude a contract with regard to the individual services. The contract with the Licensor is concluded when the Licensor accepts your offer by confirming your order (e.g. by sending a confirmation e-mail), at the latest by providing the Services ordered. Acceptance by the Licensor requires you to submit the agreement on order data processing pursuant to section 10.2 of these terms. The Licensor will confirm your order immediately upon receipt of your offer by confirmation e-mail. However, this confirmation does not constitute acceptance of the offer, which is carried out in a separate acceptance message.
3.1 For the duration of the service period, subject to fulfillment of payment obligations and unless it is otherwise specified in this Agreement or on your behalf, you shall receive exclusively within the terms of this agreement, including the service description, the non-exclusive, non-assignable, in the number of users unrestricted right to use the services ordered by you. You may permit your users to use the services for these purposes, and you are responsible for ensuring that users comply with the provisions of this contract and thereby of the respective order.
3.2 You do not acquire under this agreement the right or license to use the services above and beyond the extent and / or duration specified in your respective order. Upon completion of the ordered services your rights for accessing and using the services shall expire.
3.3 You acknowledge and agree that the Licensor is not subject to delivery obligations for programmes and copies of such programmes as part of the services are not sent to you or to download provides.
3.4 The Services may include separately licensed technology by third parties or require their use. You are responsible for compliance with special conditions given by the Licensor that govern your use of separately licensed third party technology.
3.5 As part of the provision of certain services, the Licensor may grant access to the third-party content. The nature and extent of any third party content are defined in the rules applicable to your particular service description. The owner, author or provider of said third party content shall retain all ownership rights and intellectual property rights for that content, and your rights to use such third-party content are subject to restrictions applicable to such content rules, which the respective owner, author or provider decides upon the contents.
4 Property rights and restrictions
4.1 You shall retain ownership rights and intellectual property rights for your content. The Licensor or its Licensors retain all ownership rights and intellectual property rights in the Services.
4.2 It is not permitted and you may not cause or allow others to:
4.2.1 programmes or materials resulting from the services (except for your content) to be provided to third parties for their use for business purposes (unless such access has been expressly permitted to you under the acquired Services );
4.2.2 to change any part of, to disassemble, decompile, or reverse the Services, with the exception of actions that are essential in order to obtain the information necessary to achieve interoperability of Services with other programmes, provided that these actions by you (or on your behalf made by a person authorised by you), are necessary to establish interoperability and that information is not readily available, and the actions are confined to those parts of the Services that are necessary to achieve interoperability. This prohibition applies, inter alia, for the review of data structures or similar, programme-generated materials or the Services to access and use them to create products or services competitive to the Licensor’s and / or third parties in such a creation or support to help;
4.2.3 perform or disclose without the Licensor’s prior written consent benchmark or performance testing of Services;
4.2.4 to license the Service, to sell, rent, lease, transfer, distribute, reproduce to host, to outsource, disclose, permit their partial use or use in a service office or otherwise exploit them commercially or provide them to third parties, unless expressly permitted by the terms of your respective order.
4.3 The rights granted to you under this Agreement are subject to the following conditions:
4.3.1 Subject to express agreements in this contract or your respective order no part of the Services may be reproduced in any form and by any means, including electronic and mechanical equipment, photocopying equipment and recorders, copied, reproduced, re-published, displayed, posted on the Internet, or transmitted; and
4.3.2 You will take all reasonable measures to prevent access to the Services by unauthorised third parties.
5.1 The Services shall be governed by the Service description applicable to your respective order. You acknowledge use of the Services not in accordance with the service description may have a negative effect on the provision of Services and / or may result in additional fees.
5.2 The Licensor is entitled to change the Services (such as infrastructure, security, technical configuration, application functions, etc.) during the relevant performance period or update the Services, to take react to changes relating to technologies, industry practices, usage and the availability of third-party content.
6.1 You are obliged to identify and authenticate all users, to check and confirm the access authorisation of users to the Services and to repel unauthorised access by users, to protect the confidentiality of user names, passwords and user account information. The Licensor shall not be liable for damage caused by your users, in particular by persons to whom access to the Services was not allowed, but who were able to gain access because user names, passwords or user accounts in your local identity management infrastructure or on your local computers were not cancelled in time. You are liable for all activities that are carried out using your user name, password or using a user name, password or account of any of your users accessing the services, and you are obliged to inform the Licensor of any inappropriate use immediately.
6.2 You are obliged to refrain from using the Services for illegal purposes or for other purposes contrary to the provisions of this contract or the respective order or to permit such use contrary to the provisions of this contract or the respective order. You are solely responsible for ensuring that users do not abuse the service, but use it only in accordance with the law, this contract as well as the respective order. The Licensor reserves the right to remove such material or block access to it which violates the above restrictions.
6.3 By submitting your registration and relevant bank data you authorize the Licensor to carry out appropriate actions in the context of the execution of the ordered services (e.g. bank transfers etc.).
All payments to the Licensor are due within 30 (in words: thirty) days from receipt of invoice. The prices agreed in the respective order shall apply.
8 Service period, end of services
8.1 The Services provided under this contract are provided for the service period defined in your respective order,unless they are suspended or terminated early in accordance with this Agreement or the respective order.
8.2 Upon termination of the Services you no longer have the right to access or use the Services. After a 60-day grace period and subject to statutory requirements, the Licensor will delete all your remaining content.
8.3 The Licensor may temporarily revoke your password, your account and your access to the Services if you or your users violate any of the provisions in the clauses’ Granting of rights’, ‘Property rights and restrictions’,’Fees and taxes’ or ‘Use of the Services’ referred to in this agreement. The Licensor will inform you of such a suspension at its reasonable discretion in advance and depending on the nature of the suspicious circumstances.
8.4 If you or the Licensor has violated essential provisions of this agreement and do not resolve this breach within thirty (30) days from receipt of the written notification, the other party is entitled to terminate this agreement.
9.1 Under this contract, the parties may gain access to confidential information of the other side (“Confidential Information”). The parties agree to disclose only the information necessary for the fulfillment of obligations under the present contract. Confidential information is expressly limited to the contractual terms and prices, your content and applications in the performance environment as well as on all the time of disclosure information marked as confidential.
9.2 Confidential Information shall not include the information that: (a) is made public either by action or omission of the other party or; (b) was in legitimate possession of the other party prior to the disclosure and were left neither directly nor indirectly from the disclosing party; (c) has been made available lawfully to the other party without restriction on the disclosure; or (d) was independently developed by the other party.
9.3 The parties agree to refraining from disclosing confidential information for a period of three years from the disclosure of confidential information among the parties to third parties not listed in the following sentence. The parties are entitled at any time to disclose the contractual provisions or prices or the orders placed under this agreement in a lawsuit arising out of or in connection with this agreement, or given to a public authority or body, to the extent as is required by law.
10 Personal data and project information
10.1 In the context of Service delivery the Licensor collects, processes and uses personal data which he receives from you. Personal data is specific information about personal or factual circumstances of an identified or identifiable natural person.
Where the Licensor collects, processes and uses personal data in order to comply with its obligations under any contracts entered into between him and you, and to fulfill his contractual obligations to you, the Licensor is the responsible data controller. In particular, this concerns information such as name, email address and possibly also bank account information.
10.2 If the Licensor does not use personal data provided by you for his own business purposes to fulfill the contract, he acts as a commissioned data processor. You authorise the Licensor to collect as a commissioned data processor data for you that you fed into the system, process and use the data by agreeing to a commissioned data processing contract. The use of the system is impossible without commissioned data processing. For the accuracy, completeness or timeliness of such personal data and the lawfulness of their processing, you are responsible as a data controller. With commissioning of data processing You agree that data put into system for the respective construction project can be viewed by the other project participants and an exchange of data between project participants within a construction project via the system takes place.
10.3 In addition, you are also responsible for all other information and data that is not personally identifiable information and that you input into the system, and will ensure that this information and data is correct, complete and current and that its collection, processing and use is lawful. In particular, you are responsible for ensuring that the project and payment information is correct, complete and current.
11.1 The parties agree that the services provided under this contract represent a novel and diverse type of service and that in case of any service disruptions the use of the specific warranty provisions of the BGB-contract law would not serve the interests of the parties. It is therefore agreed that in connection with service disruptions instead only the following provisions shall apply.
11.2 The Licensor is obliged to provide the services according to the contract, in particular to comply with the requirements of the service description. If the services provided by the Licensor are not in accordance with these requirements, this constitutes a service disruption.
11.3 The Licensor has no influence over the communication channels (i.e. to the interface through which the data arrives at the disposal of the Licensor), in particular the public Internet through with data is transmitted for the provision of the services. Also, it is virtually impossible to ensure the absolute accuracy of hardware and software. For these reasons, it is agreed, subject to express contrary information in the service description that a disruption of service contrary to section 12.1 as an exeption does not yet apply.
11.3.1 If the services are not accurate or uninterrupted, but provided within the agreed SLA
11.3.2 if the services do not work with your content or your applications or with any hardware, software, systems or data not provided by the Licensor, unless they comply with the specifications in service description or system requirements, or
11.3.3 If the services do not meet your requirements, specifications or expectations, unless they have been explicitly stated in writing in the respective order.
11.4 If a disruption of services occurs you are obliged to inform the Licensor immediately, but no later than within two weeks from becoming aware of the disruption of services, in writing, and to explain the factual circumstances of the disruption of services. Failing a complaint in accordance with the foregoing provisions, warranty rights (reduction, property and reimbursement of expenses) for the disruption of services, insofar as it was apparent to you, shall be precluded. Any statutory claims for repayment of already paid invoices shall remain intact.
11.5 Following a complaint under section 11.4 you are obliged to give the Licensor the opportunity to remedy the alleged disruption of services. If successful, such a possible breach of duty by the Licensor is considered resolved. If the disruption of services cannot be resolved within a reasonable grace period set by you, you have the right to terminate the respective order within a reasonable phase-out time for good cause. If the Licensor is responsible for the disruption of service, you can claim damage caused instead of or in addition to a termination as specified in paragraph 12.
12.1 The Licensor shall pay damages or compensation for futile expenses, for whatever legal reason (e.g. from legal transactions and similar transactions, breach of duty and unlawful acts), to the following extent:
– For injury to life, body and health and claims from the Product Liability Act, the statutory provisions apply.
– The liability in the event of wilful acts and under warranties is unlimited.
– In case of gross negligence the Licensor shall be liable except for breach of cardinal duties of simple proxies is limited to the typical and upon conclusion of the contract foreseeable damages; for legal representatives and executives, however, liability shall be unlimited. The unlimited liability also applies to grossly negligent breach of cardinal duties by simple proxies.
– In case of negligent breach of an obligation, the fulfillment of which enables the orderly execution of the contract and the observance of which you regularly may rely upon, the Licensor shall be liable in the amount of damages typically foreseeable at the conclusion of the respective order .
– The strict liability for defects present at the conclusion of this contract or at the beginning of the Services shall be excluded.
Any further liability of the Licensor is excluded.
12.2 The Licensor accepts no liability for the accuracy, completeness and timeliness of information you fed into the system. In particular, the Licensor is not responsible if payments are late, are not at all effected or placed or debited incorrectly (the liability of the Licensor in accordance with Section 12.1 shall remain unaffected).
Neither you nor the Licensor shall be liable for failure or delay in performance, if this is caused by one of the following causes: acts of war, hostilities or sabotage; natural events; pandemics; failure of power, the internet or telecommunications traffic that were not caused by the obligated party; government restrictions (including the denial or cancellation of an export or import license or other authorizations); or other events which are beyond the reasonable control of the obligated party. The parties will use reasonable efforts to mitigate the impact of events of force majeure. Should such an event for more than 30 days last, either party may terminate the services rendered and not affected orders in writing.
14 Governing Law and Jurisdiction
The contract is subject to substantive and procedural law of the Federal Republic of Germany. There is exclusive jurisdiction of the courts in Munich.
15.1 Should individual clauses of this agreement be or become invalid, this shall not affect the validity of the remaining provisions. The parties shall undertake to replace the invalid clauses with valid provisions which come closest to the inapplicable provision.
15.2 You agree that this contract and the information specifically incorporated in writing as part of this contract together with the relevant order represent the entire agreement for the Services ordered by you, and that this agreement shall replace any previously or simultaneously existing contracts or agreements, whether concluded verbally or in writing, referring to such Services.