1. preliminary remark
oculai GmbH offers construction planners, project developers, architects, building owners, and construction companies (hereinafter “Customer”) the temporary provision of hardware components, as well as 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 and progress and to increase efficiency within the scope of construction projects. The provision and use of the hardware and software are governed by the following contractual agreements.
2. subject matter of the contract
2.1 The subject matterof this Agreement is the provision of the software specified in the Statement of Work (Appendix 1) for the purpose of utilizing its functionalities, the technical facilitation of such use, the granting of rights of use to the software, and the provision of storage space for the data generated by the Customer using the software and/or the data required for the use of the software (application data) by oculai GmbH to the Customer in exchange for payment of an agreed fee. The scope of services may include optional AI-supported features, provided that these have been separately agreed upon and are described in the Service Description (Annex 1).
2.2 Theservices offered by oculai GmbH are intended exclusively for business entities as defined in Section 14 of the German Civil Code (BGB).
2.3 ThisAgreement is governed exclusively by these Terms and Conditions of oculai GmbH. The Customer’s terms and conditions shall only become part of this Agreement if oculai GmbH has expressly agreed to their validity; this also applies if the Customer sends oculai GmbH its own terms and conditions and oculai GmbH does not expressly object to them.
2.4 The subject matter of this Agreementconsists of the specific agreements reached between the parties, these terms and conditions, and their attachments:
– Specifications for the software and camera system (Appendix 1);
– Service Level Agreement (Appendix 2);
– Data Processing Agreement (Exhibit 3);
– Privacy Policy (Appendix 4).
3. Conclusion of the Contract
3.1 Thecontent of the oculai GmbH website at the URL www.oculai.de does not constitute a binding offer by oculai GmbH. The information presented there by oculai GmbH is to be understood as an invitation to users of the website to submit an offer to oculai GmbH.
3.2 Ifthe customer submitsa contract offer to oculai GmbH using the contact options provided on the website, in particular the contact form available there, the customer will receive an automated confirmation of receipt via email. This does not constitute a declaration of acceptance by oculai GmbH.
3.3 Acontract is not concluded until oculai GmbH sends the customer an order confirmation in electronic form. oculai GmbH is not obligated to respond to a contract offer made via the website. Silence does not constitute acceptance of the contract.
4. provision of the software and storage space for application data
4.1 oculai GmbHshall make the latest version of the software available for use on one or more central data processing systems (hereinafter also referred to as “servers” or “data processing centers” ) as of the date agreed upon in the Service Description (Appendix 1). The Customer accesses the software via a standard web browser in its current version (e.g., Google Chrome, Mozilla Firefox, or Safari).
4.2 oculai GmbHwarrants that the software is suitable for the purposes set forth in the Statement of Work (Exhibit 1) and is free from defects during the term of the Agreement. oculai GmbH’s warranty is governed by lease law. Strict liability for defects in the software upon conclusion of the Agreement pursuant to § 536a of the German Civil Code (BGB) is excluded.
4.3 oculai GmbHwill provide the customer with the agreed number of usernames and passwords. The customer must immediately change the passwords provided to passwords known only to the customer.
4.4 oculai GmbHis entitled to use third-party servers to provide the software and storage space.
4.5 oculai GmbHwarrants that the software provided will always reflect the current state of the art. oculai GmbH may update and further develop the software at any time, and in particular may adapt it to changes in the legal landscape, technical developments, or to improve IT security. In doing so, oculai GmbH will give due consideration to the customer’s legitimate interests in the event of a change to the scope of services and will inform the customer in a timely manner of any necessary updates. To the extent that the provision of a new version or a change entails a modification of the software’s functionalities, a change in the customer’s workflows supported by the software, or restrictions on the functionality or usability of previously generated data, oculai GmbH shall notify the customer of this in electronic form at least 4 weeks before such a change takes effect. If the customer does not object to the change within 2 weeks of receiving the notice of change, the change shall become part of the contract. oculai GmbH shall always inform the customer of the deadline and the legal consequences of the deadline’s expiration. If the customer objects, oculai GmbH may terminate the contractual relationship within a period of 2 weeks from receipt of the objection, subject to a 2-week notice period.
4.6 Starting atthe agreed-upon time, oculai GmbH will reserve the server storage space necessary to provide the application data required for the proper use of the software. No additional storage space will be provided to the customer beyond this.
4.7 Thepoint of delivery for the software and application data is the router output at the oculai GmbH data center. The software is deemed to have been delivered at the point of delivery in accordance with the contract once oculai GmbH has provided the customer with a username and password to access the software. The customer’s first use of the software is not a determining factor.
4.8 Use of thesoftware requires that the customer maintain a high-performance telecommunications connection and have an up-to-date version of a web browser. The customer is responsible for ensuring this.
5. handover, installation and transfer of the oculai camera
5.1 oculai GmbHshall provide the customer with the camera required to capture construction site data, an LTE router, a Power-over-Ethernet switch (camera system), and a waterproof case for storing the camera system for the duration of the contract, starting from the agreed commencement date. The transfer of risk occurs upon handover of the camera to the carrier at the oculai GmbH headquarters (obligation to deliver).
5.2 Toenable the software to be used in accordance with the contract, the camera must be mounted in an elevated position above the construction site so that work processes can be recorded anonymously and in a format usable by the software. The camera shall be installed by the customer, unless the contracting parties have agreed otherwise in writing. A continuous power supply from the construction site’s temporary power source is required to operate the camera. The customer is responsible for providing this.
5.3 oculai GmbHwarrants that the camera is free from defects at the time of transfer of risk and shall maintain the camera in a condition in accordance with the contract throughout the term of the contract. Excluded are defects in the camera caused by improper assembly or caused by the customer, its employees, or vicarious agents, if the customer is responsible for this, whereby the provision of § 278 BGB applies accordingly.
5.4 In order tocollect the data required for the use of the software, the camera must be able to connect to the Internet, and the network quality at the construction site must be sufficient to establish a connection via the mobile network. oculai GmbH shall not be liable for any limitations in usability or any inability to use the software due to poor network quality. The contracting parties agree to a mutual right of withdrawal in the event that the network quality at the construction site is insufficient for the operation of the camera and the use of the software. The withdrawal must be declared to the other contracting party in writing within 2 weeks of becoming aware of the insufficient network quality.
5.5 Unlessotherwise agreed, the customer must return the camera to oculai GmbH upon termination of the contract. Unless otherwise agreed, the customer is responsible for dismantling the camera.
6. technical availability; response and recovery times
6.1 oculai GmbHis responsible for ensuring the availability of the software and application data in accordance with Exhibit 2. The parties define “availability” as the technical usability of the software and application data at the point of service delivery for use by the Customer.
6.2 Detailsregarding availability, response times, and recovery times, including any contractual penalties for non-compliance, are set forth in Exhibit 2.
7. Failure to fulfill primary performance obligations
7.1 Ifoculai GmbH fails tofully complywith the agreements set forth in Sections 4 through 6, the following provisions shall apply.
7.2 Ifoculai GmbH isin default regarding the initial provision of the software or the delivery of the camera, liability shall be governed by Section 14. If, after oculai GmbH has fallen into default, the customer sets a two-week deadline for performance and oculai GmbH fails to meet this deadline, the customer may withdraw from the contract.
7.3 Ifoculai GmbH fails to fulfillits obligations under Sections 4 through 6, in whole or in part, after the initial provision of the software and the camera, the monthly usage fee shall be reduced on a pro rata basis for the period 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, liability is not excluded pursuant to Annex 2.
7.4 Ifoculai GmbH fails torestore the software’s functionality within the timeframe agreed upon in Schedule 2 after becoming aware of the defect, the customer may terminate the contract for cause, unless the delay is due to force majeure or oculai GmbH is not responsible for the delay in restoring functionality for other reasons.
8. other services of oculai GmbH
8.1 Uponrequest, oculai GmbH will provide the customer with a complete copy of the application data in electronic form (backup).
8.2 Training sessionson how to use the software can be arranged separately with oculai GmbH.
9. rights of use of the software; rights of oculai GmbH in case of exceeding the rights of use
9.1 TheCustomer is granted non-exclusive, non-sublicensable, and non-transferable rights to use the Software for the duration of the contract, subject to the following terms. No physical copy of the Software will be provided to the Customer. The Customer may use the Software exclusively for its own business activities. The Customer is not authorized to modify the Software unless this is absolutely necessary to correct an error and oculai GmbH is in default regarding the correction of the error, seriously and definitively refuses to correct the error, or insolvency proceedings have been initiated against the assets of oculai GmbH. If new versions, updates, or upgrades of the software are made available during the term of the contract, these rights of use shall also apply to such software versions. The customer is not authorized to use the software or allow it to be used beyond the agreed scope, 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.
9.2 TheCustomer shall take the necessary precautions to prevent third parties from accessing or using the Software; in particular, the Customer shall ensure that the usage data provided by oculai GmbH is not disclosed to or made available to unauthorized third parties. The customer is liable for ensuring that the software is not used for racist, discriminatory, pornographic, politically extreme, or other unlawful purposes, or in violation of official regulations, and that no such data is stored on the servers of oculai GmbH.
9.3 Ifthe customer violatesthe above agreements and is responsible for such violation, oculai GmbH may suspend the customer’s use of the software following a written warning. If the customer unlawfully violates the obligation not to use the software for illegal purposes (Section 9.2), oculai GmbH may delete the application data in violation of this provision. If the customer persistently violates paragraphs 9.1 and 9.2 despite several written warnings, the provider may terminate the contract without notice.
9.4 Ifthe Customer allowsunauthorized third parties to use the Software in violation of the provisions of this Agreement, the Customer shall pay a penalty immediately due and payable in the amount of one month’s usage fee for each month during which the Software is used by third parties in breach of this Agreement. oculai GmbH may claim further damages.
10 Liability for third party rights
10.1 oculai GmbHis the manufacturer of the software and declares that, as of the date of this Agreement, it is not aware of any third-party rights to the software. If third parties assert rights to the software or parts thereof and the customer’s ability to use the software is impaired, oculai GmbH shall immediately inform the customer and, by appropriate means—if necessary, by modifying the software or parts thereof and remedying the infringement—shall provide the customer with full access to the software.
10.2 Ifthe software cannot be used for legal reasons, this shall be deemed unavailability within the meaning of Schedule 2.
10.3 Ifoculai GmbH no longer possessesthe rights necessary for the proper performance of the contract, the provisions of Sections 7.3 and 7.4 shall apply mutatis mutandis.
10.4 Oculai GmbHshall indemnify the Customer, upon first request, against any claims by third parties arising from the third parties’ rights against users of the Software who are using the Software in accordance with the contract. The parties shall notify each other if such claims are asserted against them.
10.5 oculai GmbHshall not be liable for any infringement of third-party rights if such infringement results from the Customer’s use of the services beyond the scope of this Agreement. In such a case, the Customer shall indemnify oculai GmbH against all claims by the third party upon first request.
11. remuneration, price adjustment, offsetting prohibition
11.1 TheCustomer shall pay the monthly usage fee agreed upon in Appendix 1 and Appendix 2 for the use of the software and the provision of the camera.
11.2 Theusage fee is payable for each calendar month that has begun, starting from the date the camera is made available and delivered in working order. It is due in full in advance on the first business day of the respective month. If the customer has terminated the contract extraordinarily for valid reasons, the usage fee will be refunded to the customer on a pro-rata basis for the period following the termination of the contract.
11.3 Any otherservices that have been expressly agreed to be subject to a fee (e.g., training, camera installation) will be billed by oculai GmbH on a time-and-materials basis at the rates in effect at the time of the order, in accordance with oculai GmbH’s price list.
11.4 Thecustomer is obligated to pay thecontractual fee plus the applicable statutory sales tax.
11.5 Set-offagainst oculai GmbH’s claims for payment is prohibited (prohibition on set-off). This does not apply if the customer’s counterclaim has been acknowledged by oculai GmbH or has been established by a final and binding court decision. The customer is entitled to a right of retention with respect to oculai GmbH’s claims for license fees only if the counterclaim arises from the same contractual relationship.
12. duties and obligations of the customer
The customer shall fulfill all agreed obligations and duties necessary for the performance of the contract. In particular, the customer shall:
1. Ensure that the camera is properly installed in a suitable location (in accordance with the installation instructions), unless the installation has been separately agreed upon with oculai GmbH;
2. to keep the user and access permissions assigned to them or their employees, as well as the necessary user and access data, confidential; to protect them from unauthorized access by third parties; and not to disclose them to unauthorized third parties. The customer must immediately notify oculai GmbH if he suspects that the access data and/or passwords have become known to unauthorized third parties;
3. provide the necessary conditions for using the software in accordance with the Statement of Work (Exhibit 1);
4. to ensure that all rights of third parties are respected when transmitting third-party text, data, or images to the server of oculai GmbH;
5. ensure that the necessary consent of the respective data subject is obtained to the extent that personal data is collected, processed, or otherwise used through the use of the software and no legally permissible circumstance exists. In particular, the Customer must ensure that its employees working on the construction site, as well as the employees of any subcontractors and vicarious agents, have been 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 the data processor, and have given their consent;
6. To scan data and information intended for upload to the oculai GmbH server for viruses or other threats to oculai GmbH’s IT security using state-of-the-art measures prior to transmission;
7. to regularly back up their own data and application data on their own responsibility and to create appropriate backup copies;
8. to regularly back up the application data stored on the server at their own responsibility by downloading it from the oculai GmbH server;
9. When using optional AI-powered features, do not enter any personal data into the input fields, and review AI outputs on your own responsibility before using them.
13 Data protection, data security
13.1 Theparties shall comply with applicable data protection regulations, in particular those in force in Germany, and shall require their employees involved in the contract and its performance to ensure data security, unless such employees are already subject to a general duty of confidentiality.
13.2 Ifthe Customer collects, processes, or uses personal data, the Customer warrants that it has the necessary authorizations to do so in accordance with applicable laws, in particular that there is a legal basis for the processing or that the data subject has given their consent. In the event of a breach, the Customer shall indemnify oculai GmbH against any claims arising from such breach.
13.3 oculai GmbHwill collect and use customer-related data only to the extent necessary for the performance of this Agreement. To that extent, the Customer hereby consents to the collection and use of such data.
13.4 oculai GmbHis entitled to use anonymized data derived from the Customer’s use of the Software to monitor the performance of the Software and hardware, compile statistics, establish industry benchmarks, and revise and improve the Software’s features and functionality.
13.5 Whereoptional AI-powered features are enabled, user requests and project-related process data may be transferred to external subcontractors for the purpose of providing services. Processing takes place exclusively on servers located within the EU. The subcontractors used are listed in Appendix 4 and are bound by the terms of Article 28 of the GDPR.
13.6 TheParties shall enter into the Data Processing Agreement attached to this Agreement as Annex 3 , in accordance with Article 28 of the GDPR. In the event of any conflict between this Agreement and the Data Processing Agreement regarding the processing of personal data, the Data Processing Agreement shall prevail over this Agreement.
14. Liability, Limitations of Liability
14.1 Thecontracting parties shall be fully liable to each other for any damages caused by them, their legal representatives, or their agents, in cases of willful misconduct or gross negligence.
14.2 Ifa contracting party causesdamage through slight negligence, the following limitations of liability shall apply. In cases of slight negligence, the contracting parties shall be liable to each other without limitation for all damages resulting from injury to life, limb, or health.
14.3 Furthermore, the contracting parties shall be liable to each other only to the extent that a material contractual obligation has been breached due to slight negligence. Material contractual obligations are those obligations that are of particular importance for achieving the purpose of the contract and that 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 is limited to compensation for foreseeable, typically occurring damage. The strict liability of oculai GmbH for damages (§ 536a BGB) arising from defects existing at the time of conclusion of the contract is excluded.
14.4 oculai GmbH shall not be liable forany damages arising from the use of or reliance on AI-powered features, to the extent permitted by law and without prejudice to liability for willful misconduct or gross negligence pursuant to Section 14.1.
15. Term, Termination
15.1 Thecontractual relationship begins upon the conclusion of the contract. oculai GmbH shall provide the service on the date agreed upon in Appendix 1 .
15.2 Unlessthe parties have agreed otherwise, the contract is entered into for a fixed term and ends on the first day of the month following the sixth month of the contract term. The contract shall automatically renew for an additional month unless terminated by either party in writing with a notice period of 6 weeks prior to the end of the contract term. Thereafter, the contract may be terminated with a notice period of 4 weeks to the end of the month.
15.3 Theright of either party to terminate the contract for cause remains unaffected. For oculai GmbH, cause exists in particular:
– if the customer is late in making payment after a final reminder,
– if insolvency proceedings are initiated with respect to the customer’s assets or if such proceedings are denied due to lack of assets,
– in the event of continued breach of contract by the customer, provided that oculai GmbH has notified the customer of the breach in a formal notice.
16. Obligations During and After Termination of the Contract
16.1 Withina period of 6 weeks from the termination date, oculai GmbH will make the customer’s application data or personal data stored on the server or otherwise permanently stored available to the customer in a standard data format, if the customer expressly requests this. Upon written request from the customer, oculai GmbH will make this data available to a third party designated by the customer.
16.2 oculai GmbHagrees to assist the customer in switching to another provider if the customer specifically requests such assistance. In this regard, oculai GmbH is entitled to charge the customer a separate fee as agreed.
16.3 Thecustomer is obligated to return all software or data storage media received to oculai GmbH upon termination of the contract. The customer is also obligated to dismantle the camera provided by oculai GmbH and return it to oculai GmbH within two weeks of the contract’s termination. The disassembly of the camera will be performed by oculai GmbH at the customer’s separate request. If the customer requests that oculai GmbH perform the disassembly, this service must be paid for separately in accordance with oculai GmbH’s price list.
17. Force Majeure
Neither party is obligated to fulfill its contractual obligations in the event of, and for the duration of, an existing force majeure event. Force majeure includes, in particular: fire, explosion, or flooding for which the parties are not responsible; war, civil unrest, blockade, embargo; a labor dispute lasting more than 6 weeks and not caused by the fault of the contracting party; as well as technical problems with the Internet, the mobile network, or services provided by third parties that cannot be influenced by a contracting party.
18. AI-based features; transparency requirements (Regulation (EU) 2024/1689)
To the extent that oculai GmbH provides optional AI-powered features that trigger transparency obligations under Regulation (EU) 2024/1689 (EU AI Act), oculai GmbH fulfills these obligations by including appropriate notices in the user interface and by providing user instructions in accordance with Article 13 of the EU AI Act. The Customer shall ensure that its users are informed of the characteristics and limitations of AI-supported features.
19. final provisions
19.1 This contract is governed exclusively byGerman law.
19.2 There are no collateral agreements or side agreements outside ofthis contract or the annexes referred to in Section 2.4. Any amendments or modifications to this contract must be made in writing to be effective.
19.3 Theinvalidity of any provision of this Agreement shall not affect the validity of the remaining provisions.
19.4 If, in the practical application of this Agreement, any gaps arisethat the parties did not foresee at the time of execution, or if a provision is found to be invalid by a final court decision or by mutual agreement of both parties, the parties undertake to fill or replace the resulting gap or invalid provision in a manner that is appropriate to the in a manner consistent with the economic purpose of the contract, so that it comes as close as possible to the intended invalid provision.
19.5 The exclusivevenue for disputes arising out of or in connection with this contract shall be the Local Court of Nuremberg-Fürth, unless another venue is required by law.