License Agreement for Allplan Exchange
ALLPLAN – A NEMETSCHEK COMPANY
ALLPLAN GmbH | Konrad-Zuse-Platz 1 | 81829 München
Allplan Exchange is a service provided by ALLPLAN GmbH (hereinafter referred to as "Allplan" or "we"). With Allplan Exchange, the user has the opportunity to store plans and documents on the web so that they can be accessed by authorised project stakeholders via the internet.
By concluding the present Licence Agreement, the parties agree that Allplan gives the Customer the opportunity to use the required services for access via a telecommunication connection and provides the Customer with storage space for their user data (plans).
Section 1 Subject Matter of the Agreement
The subject matter of the present Licence Agreement shall be the provision of the Allplan Exchange cloud solution available on the web servers (hereinafter referred to as the “services”) to use their features, the technical facilitation to use these services via internet and the granting and/or arrangement of rights of use to the services by Allplan vis-à-vis the Customer against payment of the remuneration agreed upon.
Section 2 Conclusion of the Agreement
(1) The agreement shall exclusively be concluded via the internet. In this context, it will be required to enter an Allplan customer number, which is only assigned to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 Paragraph 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) and not to consumers within the meaning of Section 13 German Civil Code, which is why the submission of any offer by consumers shall be excluded. Any right of revocation in accordance with Section 312d German Civil Code does not exist.
(2) The Customer may submit an offer for the conclusion of the Licence Agreement on the product page of Allplan Exchange. For this purpose, the Customer will need a user account for Allplan Connect. To submit an offer, the Customer shall initially register with Allplan Connect as a user and, following a link, will then be directed to the order form page of Allplan Exchange (https://connect.allplan.com/en/exchange/buyexchange.html). Having chosen the corresponding products and entered their personal and invoice data, the Customer will be directed to the order overview page. There, the customer must confirm commercial use as well as the conditions of the present Licence Agreement and the General Terms and Conditions of Use. After confirmation of the “Order with costs” button, the Customer will submit their offer for the conclusion of the Licence Agreement. In this way, it will likewise be ensured that the user concerned may act as an authorised representative of the respective registering customer.
(3) Before the offer is sent, the Customer shall be given the opportunity to check the information entered by them for correctness and accuracy and to correct it, if necessary, on the order overview page. For this purpose, the Customer shall be provided in a clear and comprehensible manner with the fundamental elements of the agreement, such as product description, contractual term, remuneration to be paid on a monthly basis in addition to the value added tax stated as a separate item, immediately before his offer is submitted.
(5) The Licence Agreement and the registration data may be printed out and saved by the customer before the order is sent and/or the registration is submitted. After the end of the registration process, the text of the agreement will no longer be stored.
(6) Allplan may accept the offer within a period of five (5) days by providing the Customer with a written order confirmation (conclusion of the agreement).
(7) Together with the order confirmation, the Customer will then receive a verification code sent to them in a second e-mail. This verification code can subsequently be entered by the Customer on the login page of Allplan Exchange together with their user name and password, giving the Customer access to the services.
(8) The contractual provisions shall be made available in the German language.
(9) When the services are used for the first time, the registered user shall be saved as the administrator who will henceforth have the possibility to create additional user accounts and to determine their rights and/or roles.
Section 3 Provision of the services
(1) Allplan shall make the services available on central servers for use in accordance with the regulations stipulated hereinafter.
(2) As from the date referred to above, Allplan shall make available on the servers storage space in the amount contractually agreed upon for the data, documents and plans created by the Customer by using the services and/or used by the Customer to use the services (hereinafter referred to as the “User Data”).
(3) The User Data shall be stored on the servers at regular intervals. However, the person responsible for compliance with the record keeping obligations under commercial and tax law shall be the Customer.
(4) The current technical specifications of the software, hardware and network configurations required by the Customer as well as of the supporting browsers and the data formats are contained in the information provided in the “System Requirements”, which are available on the internet under the following link https://connect.allplan.com/support/sysinfo. Allplan shall not be responsible for either the quality of the required hardware and software on the part of the Customer or the telecommunications connection between the Customer and Allplan up to the delivery point.
Section 4 Technical Availability
Allplan shall render the contractual performances with an availability rate of 98%. Such availability rate shall be calculated on the basis of the time agreed in the contractual period for the respective calendar year, minus the maintenance work defined in Clause 5.
Section 5 Maintenance Work
(1) Allplan shall be authorised to temporarily suspend or restrict (hereinafter referred to as “Down Times”) the availability of the contractual performances outside business hours (hereinafter referred to as the “Maintenance Window”) in order to carry out maintenance work or implement improvements on the system. Allplan shall inform the Customer in due time of the start and the duration of such maintenance work by sending corresponding information to the e-mail address saved in Allplan Exchange. The business hours shall be all working days from Monday to Friday, except for public holidays at the headquarters of Allplan, in the time from 9:00 a.m. to 5:00 p.m. CET.
(2) The Down Times within the Maintenance Window may, however, not exceed ten (10) hours per month. Each commenced quarter of an hour shall be calculated as a whole hour. Down Times in this context shall also be deemed those hours where the system is not available during the access hours agreed upon.
(3) Any liability for gross negligence or intent shall remain unaffected by the regulations of the present paragraph.
Section 6 Disclosure of Data
(1) With regard to the power of disposal and the ownership of any and all user data placed by the Customer and/or their employees and transmitted by the servers, the Customer shall remain the sole owner of such data so that the Customer may request individual pieces or all of the user data be disclosed to them at any time. However, the right of disclosure shall be deemed forfeited one month following the end of the agreement (see Section 16 Para. 3).
(2) The disclosure shall take place on suitable storage media; the resulting expenses shall be subject to a charge. The amount of the respective costs can be found on the internet under the following link: https://connect.allplan.com/en/exchange/price-list.html .
Section 7 Data Backup
(1) The user data transmitted by the Customer’s systems shall be backed up by Allplan once every working day (from Monday to Friday). To the extent that data relevant for copyright purposes is affected in individual cases, the Customer shall hereby grant Allplan the non-exclusive right to produce copies of the data entered by the Customer within the framework of data backup.
(2) Any data that has been deleted by the Customer or by authorised users shall not be subject to any data backup and may not be restored at any later point in time either. A “recycle bin” function shall thus not be offered.
Section 8 Obligations of the Customer to Cooperate
(2) The Customer shall be obliged to prevent unauthorised third parties from accessing the servers and the Customer's software by means of appropriate arrangements. For this purpose, the Customer shall advise their employees to compliance with the applicable copyright and data protection law in Germany, in particular to Section 69c German Copyright Act (Urheberrechtsgesetz, UrhG) and Section 9 German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG). In particular, the Customer shall request of their employees to not produce any unauthorised copy of the services and to disclose the access passwords to other parties only with the prior approval of the management. Furthermore, the Customer shall also be obliged to obtain the consent of their respective employees under German data protection law to use the web services in accordance with Section 17 Para. 3 of this Licence Agreement.
(3) The Customer shall store their access data and/or passwords in a safe place and shall ensure internally that those persons who have not been registered with Allplan as authorised users do not gain knowledge of such information.
(4) The Customer shall guarantee that the data transmitted does not contain any virus, Trojan horse or similar malware. If this nevertheless happens, then the Customer shall inform Allplan thereof without undue delay and support them in their elimination measures. Further claims of Allplan shall remain unaffected.
(5) The Customer shall be obligated to inform Allplan without undue delay in writing or in text form once the Customer becomes aware of any disturbance of the services, which are the subject matter of the present Licence Agreement. Moreover, the Customer shall notify Allplan without undue delay in the event of any change regarding the Customer's identity (general legal succession), any amendment of the address, the name, the legal form, the company name or any change regarding the shareholders.
(6) Moreover, the Customer shall also be obliged to back up the user data uploaded by them or their employees at regular intervals (at least twice a week) as well as according to the importance of such data and to prepare own backup copies in order to enable them to be reconstructed in the event of any loss of data and information.
(7) In order to guarantee the exchange of plans and data from Allplan CAD to Allplan Exchange, the Customer shall use the latest version of the respective Allplan software installed at the Customer’s only.
(8) Apart from that, the Customer shall support Allplan in a comprehensive manner in their efforts to fulfil their performance obligations and perform corresponding acts of cooperation.
Section 9 Use by Third Parties, Violation of Rights
(1) The Customer shall not be entitled to make the access points to the servers assigned to them available to any third party. The Customer shall be expressly prohibited from performing any subletting. The Customer shall be obligated to arrange their contractual relationships with third parties in such a manner that any use of the server access points will be excluded.
(3) To the extent that acts of the Customer (as well as of their employees) or any user data placed by them and/or their employees violate(s) statutory provisions or third-party rights (e.g. any copyright), the Customer shall hold Allplan fully harmless from any liability and shall reimburse to Allplan any and all costs incurred by Allplan due to such violation (in particular lawyer’s fees). The parties are in agreement that Allplan shall not be obliged to check the data transmitted by the Customer’s systems for possible legal infringements.
Section 10 Monitoring Rights
The Customer shall grant Allplan the right to read and to check the user data transmitted by the Customer if they respond to hotline requests of the Customer or if Allplan must assume in view of reasonable considerations that all or part of the electronic data is associated with illegal activities. Moreover, the Customer shall grant Allplan the right to gain access to all user data stored on the servers used by the Customer, provided that such access is required within the framework of proper administration of the services.
Section 11 Evidence Clause
The electronically processed registers stored by Allplan on durable and unalterable mediums shall be admissible as evidence of data transmissions, agreements and executed payments between the parties.
Section 12 Claims for Defects
(1) The Customer shall be aware of the scope of the services and their degree of efficiency. The services have been developed in compliance with scientific diligence and in accordance with the acknowledged rules of technology, in particular the generally accepted coding rules.
(2) To the extent that the functions of the services deviate from the ones prescribed in the agreement and/or if they have any defect, then this is to be notified on the part of the Customer in written form without undue delay. Allplan shall then repair such services or have them repaired by third parties, if necessary. Any claim for compensation for damages shall remain unaffected.
(3) Any desistance from the agreement and/or any right of extraordinary termination with regard to the agreement shall come into consideration only to the extent that the continuation of the contractual relationship is unconscionable or if any not only insignificant breaches of contractual duties persists in spite of reminders being issued and/or deadlines being set. A reminder shall not be required to the extent that the breach of contractual duties is of such significance that such reminder is not deemed to be sufficient to end the breach of contractual duties and/or to re-establish trust. Prior to such cancellation of the agreement, Allplan shall be regularly entitled to two attempts to remedy the defect with regard to the respective defect.
(4) The Customer shall be aware of the fact that Allplan does not operate any own network and does not provide the Customer with the internet access. For this reason, Allplan shall not assume any responsibility for the functional capability of the respective access to the internet.
(5) For all other cases, the statutory warranty claims shall apply.
Section 13 Rights of Use
(1) Allplan shall grant the Customer the simple rights of use necessary for using servers and services which shall be limited in time to the term of the present Licence Agreement and unlimited in space. To the extent that Allplan allows the use of external services, i.e. services created by third parties, the extent of the rights of use granted to the Customer shall be limited to the rights of use granted by such third party to Allplan. In this case, Allplan shall be obliged to disclose to the Customer the scope of the rights of use granted to them by such third party.
(2) The Customer may reproduce all or parts of the services, which are the subject matter of the present Licence Agreement, only to the extent that this is necessary for using the system (e.g. main memory usage). In particular, this shall not include the temporary installation, the storage on data carriers of the hardware used by the Customer or the printout of the programme code.
(3) Any reworking shall only be permitted to the extent that this is necessary to eliminate defects. Condition for this shall be, however, that Allplan a.) is in default in eliminating the defect; b.) refuses the elimination of the defect; or c.) is unable to eliminate the defect. The right of decompilation in accordance with Section 69e German Copyright Act shall remain unaffected in both cases (reproduction, reworking) according to the requirements stipulated there.
Section 14 Remuneration
(1) For using servers and services, the Customer shall pay a remuneration the amount of which shall depend on the packages chosen by them. The final amount to be paid on a monthly basis shall be displayed to the Customer as a summary on the website before the conclusion of the order. The respective price list can be found on the internet under the following link: https://connect.allplan.com/en/exchange/price-list.html. The prices indicated there shall be understood to be plus the statutory value added tax at the respective applicable rate.
(2) The remuneration shall become due upon invoicing.
(3) In the event of any default of payment, the Customer shall be obliged to pay to Allplan interest in the amount of eight (8) percentage points above the base interest rate. Moreover, Allplan may also request payment of higher interest based on any other legal ground. The assertion of any higher damage shall remain explicitly reserved to Allplan.
(4) Allplan shall be entitled (but not obliged) to use hardware and software having a higher performance than the one used at the date when the agreement is concluded. If such extension and/or improvement is / are associated with any increase of the monthly remuneration, then the regulations stipulated in Section 19 of the present Licence Agreement shall apply.
Section 15 Liability
(1) In the event of slight negligence, Allplan shall be liable only in the case of a violation of material contractual obligations, i.e. obligations which are indispensable in order to achieve the objective of the agreement (cardinal obligations), as well as in the case of personal injury, guarantee or fraud and in accordance with the German Product Liability Act. In the case of any violation of cardinal obligations, the liability shall be limited to the typically foreseeable damage . Apart from that, the pre-contractual, contractual and non-contractual liability of Allplan, in particular in the case of any indirect damage, such as loss of profit, extraordinary personnel expenses, loss of use and loss of sales, shall be limited to intent and gross negligence, with the limitation of liability also applying in the case of any fault on the part of any auxiliary agent of Allplan.
(2) No warranty shall be assumed in the event that due to the granting of the rights of use, on which the present Licence Agreement is based, no protective rights and no copyright of third parties are / is infringed or no damage of third parties is caused. This shall not apply in those cases where any third-party right or damage conflicting with those of Allplan is already known when the agreement is concluded or is unknown as a consequence of gross negligence. At the time when the agreement enters into force, Allplan is not aware of any such rights. Allplan and the Customer shall inform each other of any claim asserted by third parties.
(3) Allplan shall not be liable for the functionality of the data lines to their servers, in the event of power outages as well as for performance limitations or performance failures based on force majeure or events due to which any performance is regularly impaired or rendered impossible. This shall include, in particular, strike, lockout, official orders, the failure of communication networks and gateways of other operators, disturbances in the area of the respective service provider, as well as disturbances lying within the scope of risk of other network providers.
(4) In any event of force majeure, the parties shall be exempted from their performance obligations for the duration of such impairment. If such impairment lasts for more than ten (10) days, then the Customer shall have the right to extraordinarily terminate the agreement.
(5) Any liability for the dissemination of confidential data stored in the system of Allplan shall be excluded.
(6) In the event of any default with meeting the performance obligation, the Customer shall be entitled to withdraw from the agreement only if they set an adequate period of time of at least two weeks beforehand and if Allplan does not adhere to such grace period.
Section 16 Term and Termination
(1) The agreement shall be concluded for a term whose duration shall be determined in accordance with the package chosen by the Customer. It shall be automatically extended by a period of twelve (12) months, unless the agreement is terminated in writing by any of the parties by giving three (3) months’ notice to the end of the respective quarter. An overview of the terms can be found on the internet under the following link: https://connect.allplan.com/en/exchange/price-list.html.
(2) The term of this agreement shall commence upon receipt of order confirmation by e-mail.
Section 17 Confidentiality and Data Protection
(1) Within the framework of the contractual purpose, it will be required that Allplan is provided by the Customer with data, information, etc., regarding which the Customer as the transmitting contracting party has an interest in keeping them secret and/or is to be seen as the responsible body within the meaning of the German Federal Data Protection Act.
(2) In order to enable corresponding transfer of information and data, the following shall be agreed to ensure confidential treatment of the information, data, etc. transmitted by the Customer or made available in any other manner:
Allplan shall be obligated to maintain the strictest confidentiality about all confidential procedures, in particular business and trade secrets of the Customer, that have become known to them within the framework of preparing, implementing and fulfilling the present Licence Agreement and to neither disclose them nor to utilise them in any other manner.
This shall apply vis-à-vis each and any unauthorised third party, i.e. also vis-à-vis unauthorised employees of both Allplan and the Customer, unless the disclosure of information is required for the proper fulfilment of the contractual obligations of Allplan.
(3) The parties shall comply with the statutory provisions on data protection, in particular the German Telemedia Act (Telemediengesetz) as well as the Federal Data Protection Act. In this context, the Customer shall oblige their employees involved in connection with the agreement and its implementation to respect the obligation of data secrecy in accordance with Section 5 German Federal Data Protection Act, unless such employees have already been obliged to do so. Moreover, all employees authorised to access shall confirm in writing that they agree to the collection and transmission of their personal data necessary for using the software (last name, first name, e-mail address, phone number, street, place of residence, date of birth, etc.).
(4 ) If the Customer collects, processes or uses personal data, then they shall be responsible for ensuring that they are entitled to do so in accordance with the applicable provisions, in particular under data protection law and, in the event of any violation, shall hold Allplan harmless from any and all claims of third parties. To the extent that the data to be processed is personal data, this shall be deemed an act of order data processing and Allplan shall comply with the statutory requirements of order data processing as well as the Customer’s instructions (e.g. regarding compliance with deletion and blocking obligations, see Section 11 German Federal Data Protection Act). The instructions must be given in due time and in writing. If Allplan uses the services of third parties as service providers, e.g. within the framework of data hosting, then Allplan shall ensure that the statutory requirements of order data processing, especially the Customer’s instructions, also extend to such third parties.
(5) Allplan shall take all necessary technical and organisational safety precautions and measures in accordance with the appendix to Section 9 German Federal Data Protection Act and shall ensure that the third parties commissioned by Allplan, if applicable, take the same level of technical and organisational safety precautions and measures. In particular, Allplan shall protect the services and systems lying within their scope of access, as well as the user data stored by the Customer on the server or concerning the Customer and, if applicable, any other data against unauthorised knowledge, storage, amendment or any other unauthorised access or attack - be it by means of technical measures, by viruses or other harmful programmes or data or by physical access - by employees of Allplan or third parties, irrespective of the manner in which this takes place. For this purpose, the Customer shall take all appropriate and customary measures that are reasonable according to the state of the art, in particular virus protection and protection against similar harmful programmes, as well as other measures to protect their system, including protection against break-in.
(6) In any case of order data processing, the Customer shall be entitled to request access to the premises with the servers after prior written notification with an advance notice period of not less than twenty (20) working days. This shall not affect the access rights of the Customer’s data protection officer for the purpose of verifying compliance with the requirements in accordance with the appendix to Section 9 German Federal Data Protection Act as well as the other measures taken by the provider to handle personal data in compliance with the statutory provisions and the agreement within the framework of the operation of the software in accordance with the present Licence Agreement.
(7) As a general rule, Allplan shall collect and use customer-related data only to the extent to which the implementation of the present Licence Agreement requires this to be done. The Customer shall agree to the collection and use of such data to such an extent. Any further collection of use shall require the corresponding approval of the registered user; such approval may also be provided in electronic form.
(8) The obligations in accordance with Sections 3 to 6 shall continue to exist as long as user data lie within the scope of influence of Allplan, even beyond the end of the agreement. The obligation in accordance with Section 7 shall likewise continue to exist for an indefinite period of time, even beyond the end of the agreement.
(9) To the extent that Allplan executes data processing measures in a non-Member State of the European Union or the European Economic Area, relocates it to such area or has it performed by third parties there (for example within the framework of data hosting), Allplan shall ensure that the standard contractual clauses for the communication of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and the Council will be concluded with the processing body located there or, where data transfer is carried out to the United States, that the procession body located there is certified subject to safe harbour regulations.
Section 18 Blocking
Blocking the access to the server shall be permitted to the extent that the Customer is in default with fulfilling their payment obligations by at least two monthly instalments and if any collateral provided, if applicable, has been used up. Blocking shall also be possible if a.) there is any situation threatening the systems of Allplan, in particular the switching system (e.g. due to repercussions for end devices), or public safety; b.) the Customer uses servers and/or software for illegal purposes (e.g. storage of contents infringing copyright laws); or c.) the Customer gives otherwise rise to the agreement being terminated without notice.
Section 19 Amendments to the Agreement
Allplan shall be entitled to amend the present Licence Agreement and/or their prices. Any such amendment, excluding efficiency improvements in accordance with Section 14 Para. 5 of the present Licence Agreement, shall be permitted not earlier than after a contractual term of one year. The Customer shall be notified in writing or in text form of any amendment to the agreement three months prior to the date on which they enter into force. Any amendment of the agreement shall entitle the Customer to terminate the agreement in writing by two weeks prior to the date on which such contractual amendment enters into force at the latest. Allplan shall make explicit reference to this special right of termination upon any announcement of performance and price amendments. If the special right of termination is not exercised, the agreement shall continue in accordance with the amended conditions.
Section 20 Final Provisions
(1) The present Licence Agreement shall be subject to the law applicable at the headquarters of Allplan in Germany to the exclusion of the UN Convention on the Contracts for the International Sale of Goods (CISG).
(2) The exclusive place of jurisdiction shall be the headquarters of Allplan, provided that the Customer is an entrepreneur.
(3) Any set-off against claims of the Customer shall be permitted only to the extent that such claims are undisputed or have been established by force of law.
(4) If any provision of the present Licence Agreement is ineffective or unenforceable either in whole or in part or if it contains any loophole, then this shall not affect the remaining provisions of the present agreement. In this case, the ineffective clause shall be replaced by an effective and enforceable provision which comes closest to the economic and legal purpose pursued with the ineffective clause. The same shall apply to the closure of any contractual gap.
(5) Any modification of or amendment to the present Licence Agreement or the individual orders shall require the written form. The same shall also apply to modifications of the written form requirement.
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