Terms of Contract of oculai GmbH for the Provision of the Software oculai as Software as a Service and Hardware Components
1. preliminary remark
oculai GmbH offers construction planners, developers, architects, builders and construction companies (hereinafter referred to as the Customer) the temporary provision of hardware components and the temporary use of standard software provided via a telecommunications line and the provision of storage space for a fee in order to record construction processes, construction progress and to increase efficiency within the scope of construction projects. The provision and use of the hardware and software is governed by the following contractual agreements.
2. subject matter of the contract
(1) The subject of this contract is the provision of the software agreed upon in the service description (Annex 1) for the use of its functionalities, the technical enabling of the use and the granting of rights of use to the software as well as the provision of storage space for the data generated by the customer through the use of the software and/or the data required for the use of the software (application data) by oculai GmbH to the customer against payment of an agreed upon fee.
(2) The offer of oculai GmbH is exclusively directed at entrepreneurs in the sense of § 14 BGB.
(3) The contract is exclusively governed by these terms and conditions of oculai GmbH. The customer's terms and conditions will only become part of the contract if oculai GmbH agrees to their use; this applies even if the customer sends oculai GmbH his own terms and conditions and oculai GmbH does not explicitly object to their use.
(4) The contents of the contract are the individual agreements concluded between the contracting parties, these contractual conditions and their annexes:
- Performance description of the software and the camera system (Annex 1);
- Service Level Agreement (Annex 2);
- Agreement on commissioned data processing (Annex 3);
- Privacy policy (Annex 4)
If there are contradictions or ambiguities between the contents of the contract, the contents of individual agreements concluded shall take precedence over the other provisions. The agreements of these contractual terms and conditions shall take precedence over the annexes; otherwise the annexes shall apply according to their rank in the order in which they are named.
3. conclusion of the contract
(1) The content of the oculai GmbH website at the URL www.oculai.de does not constitute a binding contractual offer by oculai GmbH. The offer of oculai GmbH presented there is to be understood as an offer to the user of the website to submit a contract offer to oculai GmbH.
(2) If the customer submits a contract offer via the contact options provided on the oculai GmbH website, in particular the contact form provided there, he will receive an automated confirmation of receipt by e-mail. This does not constitute a declaration of acceptance by oculai GmbH.
(3) A contract is only concluded when oculai GmbH sends the customer an order confirmation in electronic form. The oculai GmbH is not obliged to answer a contract offer made via the internet page. Silence is not considered as acceptance of the contract.
4. provision of the software and storage space for application data
(1) The oculai GmbH keeps the software available in the current version on a central data processing system or several data processing systems (hereinafter also referred to as server or data processing centre ) for use in accordance with the following regulations from the point in time agreed upon in the service description (Annex 1) . Access to the software by the customer shall be via a standard Internet browser in the current version (e.g. Google Chrome, Mozilla Firefox or Safari).
(2) oculai GmbH is liable that the software is suitable for the purposes resulting from the service description (Annex 1) and is free of defects during the contract period. The warranty of oculai GmbH is based on the tenancy law. The strict liability for defects of the software at the conclusion of the contract according to § 536a BGB is excluded.
(3) oculai GmbH will provide the customer with the agreed number of user names and user passwords. The customer must immediately change the user passwords communicated to him into passwords known only to him.
(4) oculai GmbH is entitled to use third party servers to provide the software and storage space.
(5) The oculai GmbH guarantees that the provided software always corresponds to the proven state of the art. The oculai GmbH can update the software at any time, develop it further and in particular adapt it to a changed legal situation, technical development or to improve IT security. In doing so, oculai GmbH will adequately consider the legitimate interests of the customer in case of a change of the scope of services and inform the customer in due time about necessary updates. If and as far as the provision of a new version or a change entails a change of functionalities of the software, a change of workflows of the customer supported by the software or restrictions in the functionality or in the usability of previously generated data, oculai GmbH will announce this to the customer in electronic form at least 4 weeks before such a change becomes effective. If the customer does not object to the change within 2 weeks after receipt of the change notification, the change becomes part of the contract. The oculai GmbH will always draw the customer's attention to the deadline and the legal consequences of the expiry of the deadline. If the customer objects, oculai GmbH can terminate the contractual relationship within a period of 2 weeks from receipt of the objection and with a notice period of 2 weeks.
(6) From the agreed point in time, oculai GmbH holds the necessary storage space on the server for the provision of the application data that is required for the purposeful use of the software. Beyond that, the customer will not be granted further storage space.
(7) The performance transfer point for the software and the application data is the router output in the oculai GmbH computer centre. The software is provided at the service transfer point according to the contract, if oculai GmbH has provided the customer with user name and user password to access the software. The first use of the software by the customer is not relevant.
(8) The use of the software requires that the customer maintains an efficient telecommunications service and has access to an Internet browser in the latest version. The customer shall be responsible for this.
5. handover, installation and transfer of the oculai camera
(1) From the time of the agreed start of performance, oculai GmbH will provide the customer with the required camera for recording the construction site data, an LTE router, power-over-ether-net switch (camera system) and a waterproof box for the safekeeping of the camera system for the duration of the contract. The transfer of risk takes place with the handover of the camera to the transport person at the registered office of oculai GmbH (debt of fate).
(2) In order to enable the contractual use of the software, it is necessary that the camera is mounted at an elevated position above the construction site in order to record the work processes anonymously and in a manner that is useful for the software. The installation of the camera shall be carried out by the customer, unless the contracting parties have agreed otherwise in text form. For the operation of the camera, a permanent power supply with building electricity is required. The customer shall be responsible for this.
(3) oculai GmbH guarantees that the camera is free of defects at the time of the transfer of risk and keeps the camera in contractual condition during the contract period. Excluded are defects of the camera which are caused by improper assembly or which are caused by the customer, his employees or vicarious agents, if the customer is responsible for this, whereby the provision of § 278 BGB applies accordingly.
(4) In order to collect the data required for the use of the software, it is necessary that the camera can establish a connection to the internet and that there is sufficient network quality at the location of the construction site to establish a connection via the mobile network. oculai GmbH is not liable for restrictions in usability or an exclusion of usability due to a lack of sufficient network quality. The contracting parties agree on a mutual right of withdrawal in case the network quality at the location of the construction site is not sufficient for the operation of the camera and the use of the software. The withdrawal must be declared to the other contracting party in text form within 2 weeks of the insufficient network quality becoming known.
(5) Unless otherwise agreed, the camera must be returned by the customer to oculai GmbH at the end of the contract. Unless otherwise agreed, the disassembly of the camera is carried out by the customer.
6. technical availability; response and recovery times
(1) oculai GmbH owes the availability of the software and the application data as agreed in Annex 2. By availability the contracting parties understand the technical usability of the software and the application data at the delivery point for use by the customer.
(2) Details of availability and response and recovery times, including any penalties for non-compliance, are set out in Appendix 2.
7. non-fulfilment of main performance obligations
(1) If oculai GmbH does not fully comply with the agreements made in clauses 4 to 6, the following regulations apply.
(2) If oculai GmbH is in default with the initial provision of the software or the handover of the camera, liability is governed by section 15. If the customer sets oculai GmbH a 2-week deadline for performance after the occurrence of the default and oculai GmbH does not comply with this deadline, the customer may withdraw from the contract.
(3) If oculai GmbH does not fulfil its obligations according to clauses 4 to 6 in whole or in part after the initial provision of the software and the camera, the monthly usage fee will be reduced proportionately for the time during which the software or the use of the camera was not available to the agreed extent, provided that oculai GmbH is responsible for this and, in particular, that liability is not excluded according to Annex 2.
(4) If the use of the software is not restored within the period agreed upon in Annex 2 after oculai GmbH has become aware of the defect, the customer may terminate the contract extraordinarily, unless there is force majeure or oculai GmbH is not responsible for the delay of the restoration period for other reasons.
8. other services of oculai GmbH
(1) Upon request, oculai GmbH will provide the customer with a complete copy of the application data in electronic form (backup).
(2) Training for the use of the software can be agreed upon separately with oculai GmbH.
9. rights of use of the software; rights of oculai GmbH in case of exceeding the rights of use
(1) The customer shall receive simple, non-sublicensable and non-transferable rights of use to the software, limited to the term of the contract, in accordance with the following agreements. A physical copy of the software shall not be provided to the customer. The customer may only use the software for his own business activities. The customer is not entitled to modify the software, unless this is absolutely necessary for the correction of errors and oculai GmbH is in default with the correction of errors, seriously and finally refuses the correction of errors or insolvency proceedings have been opened against the assets of oculai GmbH. If new versions, updates or upgrades of the software are provided during the term of the contract, these rights of use also apply with regard to this software version. The customer is not entitled to any other rights of use than those expressly granted above. The customer is not entitled to use the software or have it used beyond the agreed use or to make the software accessible to third parties. In particular, it is not permitted to reproduce, sell or temporarily transfer, rent or lend the software.
(2) The customer takes the necessary precautions to prevent access or use of the software by third parties, in particular he takes care that the usage data provided by oculai GmbH is not given out or made known to unauthorised third parties. The customer is liable that the software is not used for racist, discriminatory, pornographic, politically extreme or otherwise illegal purposes or against official regulations or that corresponding data is stored on the servers of oculai GmbH.
(3) If the customer violates the above agreements and is responsible for this, oculai GmbH can block the customer's use after written notice. If the customer unlawfully violates his obligation not to use the software for illegal purposes (clause 9 (2) p. 2), oculai GmbH can delete the application data violating this. If the customer persistently violates paragraphs 1 and 2 despite several written warnings, the provider may terminate the contract without notice.
(4) If the customer allows unauthorised third parties to use the software contrary to the regulations in this contract, he has to pay an immediately due contractual penalty in the amount of a monthly usage fee for each month of the usage of the software by third parties contrary to the contract. The oculai GmbH may claim further damages.
10 Liability for third party rights
(1) The oculai GmbH is the manufacturer of the software and declares that it is not aware of any third party rights to the software at the time of the conclusion of the contract. If third parties assert rights to the software or parts thereof and the customer's ability to use the software is impaired, oculai GmbH will inform the customer immediately and provide him with full access to the software in a suitable manner, if necessary by adapting the software or parts thereof and remedying the infringement of rights.
(2) If the software cannot be used for legal reasons, this shall be deemed to be unavailability within the meaning of Annex 2.
(3) If oculai GmbH does not have or no longer has the necessary rights to properly fulfil the contract, the agreements in section 7 paragraph 3 and paragraph 5 apply accordingly.
(4) oculai GmbH indemnifies the customer on first demand against all claims of third parties, which they assert from their rights against the users of the software, who use the software according to the contract. The contracting parties will notify each other if such claims are asserted against them. The customer will support oculai GmbH in the defence against these asserted claims to a reasonable extent, especially by handing over the necessary information and documents to oculai GmbH upon first request.
(5) The oculai GmbH is not liable for an infringement of the rights of third parties, if this is based on a use of the customer that goes beyond the agreement in this contract, especially if the customer inadmissibly exceeds the contractual rights of use of the software. In this case the customer has to release oculai GmbH from all claims of the third party on first demand.
11. remuneration, price adjustment, offsetting prohibition
(1) The Customer shall owe the monthly usage fee agreed in Annex 1 and Annex 2 for the use of the software and the transfer of use of the camera.
(2) The usage fee shall be paid for each commenced calendar month from the operational provision and transfer of use of the camera. It shall be due for payment in full in advance on the 1st working day of the respective month. If the customer has justifiably terminated the contract extraordinarily, the usage fee shall be repaid to the customer pro rata temporis for the period after termination of the contract.
(3) Other services that have been expressly agreed upon as being subject to remuneration (e.g. training, installation of the camera) will be invoiced by oculai GmbH according to time and effort at the prices announced at the time of the order according to the price list of oculai GmbH.
(4) Contractual remuneration shall be owed by the customer plus value added tax at the respective statutory rate.
(5) A set-off against the claims for payment of oculai GmbH is excluded (offsetting prohibition). This does not apply if the customer's claim has been admitted by oculai GmbH or has been legally established. The customer is only entitled to retention rights against oculai GmbH's claims for usage fees, if the counterclaim results from the same contractual relationship.
12. duties and obligations of the customer
The customer shall fulfil all agreed duties and obligations which are necessary for the execution of the contract. He shall in particular
- a) ensure proper installation of the camera at a suitable location (according to the installation instructions), unless installation has been agreed separately by oculai GmbH;
- b) keep the usage and access authorisations assigned to him or his employees as well as the required usage and access data secret, protect them from unauthorised access by third parties and not pass them on to unauthorised third parties. The usage and access data shall be protected against unauthorised access by third parties by appropriate and customary measures. The customer's employees are to be instructed to maintain secrecy. The customer will inform oculai GmbH immediately if he suspects that the access data and/or passwords have become known to unauthorised third parties;
- c) create the necessary conditions for the use of the software in accordance with the specification of services (Annex 1) ;
- d) comply with the restrictions/obligations with regard to the rights of use pursuant to Clause 9;
- e) ensure that all rights of the third party are respected when transmitting texts/data/pictures of third parties to the server of oculai GmbH;
- f) ensure that the necessary consent is obtained from the respective data subject insofar as personal data is collected, processed or otherwise used through the use of the software and no statutory permissible circumstance applies. In particular, the Customer shall ensure that its employees working on the construction site and the employees of any subcontractors and vicarious agents are informed about the use of the camera and the scope, use and processing purposes of the data collected by the Customer and oculai GmbH as order data processor and have consented thereto;
- g) check data and information uploaded to the server of oculai GmbH for viruses or other threats to the IT security of oculai GmbH before sending them by means of measures suitable according to the state of the art;
- h) back up his own data and application data, which he makes available to oculai GmbH by uploading them to the server or in any other way, regularly and according to the importance of the data on his own responsibility and make suitable backup copies in order to be able to reconstruct the data independently in case of a possible data loss;
- i) to back up regularly on his own responsibility the application data stored on the server, especially evaluations of the data provided by the software, by downloading them from the server of oculai GmbH.
13 Data protection, data security
(1) The contracting parties shall observe the applicable data protection provisions, in particular those valid in Germany, and shall oblige their employees deployed in connection with the contract and its performance to maintain data secrecy, unless they are under a general obligation of confidentiality.
(2) If the customer collects, processes or uses personal data, he guarantees that he has the necessary authorisations to do so according to the applicable law, in particular that a legal basis for processing exists or that the data subject has given his consent. In case of infringement, the customer indemnifies oculai GmbH from any claims resulting from the infringement.
(3) oculai GmbH will collect and use customer-related data only to the extent required for the execution of this contract. To this extent, the customer agrees to the collection and use of the data.
(4) oculai GmbH is entitled to use anonymised data from the use of the software by the customer in order to monitor the function of the software and the hardware, to compile statistics, to create industry benchmarks and to revise and improve the offer as well as the functional scope of the software.
(5) The obligations regarding data protection and data security shall apply - as long as personal data are within the sphere of influence of a contracting party - also beyond the end of the contract.
(6) The contracting parties shall conclude the agreement on commissioned data processing attached to this contract as Annex 3 in accordance with Art. 28 DSGVO. In the event of contradictions between this contract and the commissioned data processing in connection with the processing of personal data, the commissioned data processing shall take precedence over this contract.
15 Liability, liability limits
(1) The contractual partners shall be liable to each other without limitation in the event of intent or gross negligence for all damage caused by you and your legal representatives or vicarious agents.
(2) If a contractual partner causes damage through slight negligence, the following limitations of liability shall apply. In the event of slight negligence, the contractual partners shall be liable to each other without limitation for all damage resulting from injury to life, limb or health.
(3) Furthermore, the contracting parties shall only be liable to each other insofar as a material contractual obligation has been breached through slight negligence. Material contractual obligations are those obligations which are of particular importance for the achievement of the contractual objective and which make the performance of the contract possible in the first place. In the event of a breach of such obligations, the liability of the contracting parties shall be limited to compensation for the foreseeable, typically occurring damage. The strict liability of oculai GmbH for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is excluded.
16 Term, Termination
(1) The contractual relationship begins with the conclusion of the contract. The provision of the service by oculai GmbH takes place on the date agreed in Annex 1 .
(2) If the contracting parties have not agreed otherwise, the contract shall be concluded for a limited period and shall end on the first day of the month following the sixth month of the contract term. The contract shall be automatically extended by a further month in each case unless it is terminated by one of the contracting parties in text form with a notice period of 6 weeks to the end of the contract term. Thereafter, the contract may be terminated with 4 weeks' notice to the end of the month.
(3) The right to extraordinary termination with good cause remains unaffected for both contractual partners. For oculai GmbH an important reason is in particular,
- in the event of default of payment by the customer after a single reminder,
- in the event of the opening of insolvency proceedings against the assets of the customer or the rejection of the opening for lack of assets,
- in case of continued breaches of contract by the customer, if oculai GmbH has drawn the customer's attention to the breach of contract with a warning.
17. obligations upon and after termination of the contract
(1) Within a period of 6 weeks from the termination date, oculai GmbH will release to the customer application data stored on the server or otherwise stored personal data of the customer permanently stored in a common data format, if the customer explicitly requests this. Upon written request of the customer, oculai GmbH will release this data to a third party named by the customer.
(2) oculai GmbH commits itself to support the customer in switching to the service of another provider, if requested separately by the customer. For this, oculai GmbH is entitled to demand a separate remuneration from the customer according to agreement.
(3) The customer is obliged to return all received software or data carriers to oculai GmbH after the end of the contract. He is also obliged to dismantle the camera provided by oculai GmbH and to return it to oculai GmbH within a period of 2 weeks after termination of the contract. The disassembly of the camera will be carried out by oculai GmbH upon separate request of the customer. If the customer requests the disassembly by oculai GmbH, this service is to be paid for separately according to the price list of oculai GmbH.
18 Force majeure
Neither of the contracting parties shall be obliged to fulfil the contractual obligation in the event of and for the duration of an existing force majeure. Force majeure exists in particular in the event of:
- fire/explosion/flood for which the contracting parties are not responsible,
- War, mutiny, blockade, embargo,
- an industrial dispute lasting more than 6 weeks and not culpably brought about by the contracting party
- technical problems of the internet or the mobile network that cannot be influenced by a contractual partner.
Each contracting party shall immediately inform the other in writing of the occurrence of a case of force majeure.
19. final provisions
(1) This contract is governed exclusively by German law.
(2) There are no collateral clauses or ancillary agreements outside of this contract or the annexes named in section 2 (4). Amendments or adjustments to the contract must be made in text form in order to be effective.
(3) The invalidity of individual provisions of this contract shall not affect the validity of the contract as a whole.
(4) If gaps arise in the practical application of this contract which the contracting parties did not foresee at the time of conclusion of the contract, or if the invalidity of a provision is established in a legally binding manner or by mutual agreement of both contracting parties, the contracting parties undertake to fill in or replace the gap or invalid provision caused thereby in a factual, appropriate manner oriented to the economic purpose of the contract in such a way that it comes as close as possible to the intended invalid provision.
(5) The exclusive place of jurisdiction for disputes arising from or in connection with this contract shall be the District Court of Nuremberg-Fürth, unless another place of jurisdiction is mandatory by law.