As of: 15 February 2025
1.1 The contracting parties are EBCsoft GmbH, Brühl 24, 04109 Leipzig (“we”) and the registered holder of the account required to access the VITRICON® solution (“you”).
1.2 Use of the services we provide is permitted only to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). By accepting these terms of use, you confirm that you and all users acting within the scope of the licence ordered are acting in the exercise of their commercial activity and are not consumers within the meaning of Section 13 BGB.
2.1 We operate a facility and energy management solution — the VITRICON® modules on the KENEXOS® platform — provided as Software-as-a-Service (“SaaS”), which is accessible on the World Wide Web under the domain vitricon.com as well as via mobile apps for Apple iOS, Android and Windows (“the platform”).
2.2 The subject matter of the contract is the granting of the ability to use the platform with the services and functions offered. You may use the platform for your own purposes within the scope of these terms of use and process and store your data.
2.3. The platform, the computing power required for use, and the necessary storage space for data are provided by us or by a data centre commissioned by us. Any services beyond this are not part of the contract and require a separate, chargeable agreement.
2.4 After successful registration, you have the option to use the platform free of charge for a period of 14 calendar days (“trial phase”). Before the free trial phase expires, we will contact you and give you the option to continue using the services on a chargeable basis under the licensing model applicable at that time. Should you not agree to chargeable use, the account will be blocked and deleted, including the data you have entered, within a minimum of 30 calendar days.
2.5 We provide you with user documentation in the form of online help. Unless expressly agreed otherwise in text form in an individual case, we do not owe any further documentation, training or instruction services beyond this.
2.6 These terms of use apply both during the free trial phase and during chargeable use of our range of services.
3.1 Our services provided within the scope of a SaaS are structured modularly. The respective scope of services can be viewed on our website www.vitricon.com.
3.2 During the term of the contract, we enable you to access the platform using the access credentials registered for the account. Access is provided via the website accessible on the World Wide Web under the domain vitricon.com and/or via mobile apps for Apple iOS, Android and Windows. The installation of the mobile apps is not part of our scope of services.
3.3 We develop and operate the platform in accordance with the respective recognised state of the art. The range of functions evolves dynamically. We aim to continuously integrate new functions. However, you have no claim to the integration of specific functions. You can view the currently available functions at any time on our website www.vitricon.com and in the help section contained within the platform. You accept temporary maintenance periods that are necessary in the course of further development. In the case of longer maintenance periods, insofar as they can be planned, we will inform you in good time in advance.
3.4 We are entitled to make changes to the platform, provided that these serve to safeguard and further develop functionality. The changes may result in changed system requirements; we therefore only support access using a respectively current web browser (in accordance with the compatibility notes in the FAQ section) or the respectively current mobile app version.
3.5 You are aware that the data you enter into the platform does not meet the requirements of the “Principles for Data Access and the Auditability of Digital Documents (GDPdU)“.
4.1 Access to the platform requires a customer account, which you can create by registering your personal access credentials and accepting these terms of use as well as the data protection provisions in their respective valid version. The usage contract comes into effect with the order confirmation, which we send to the email address you have provided. The usage contract does not come into effect if you do not activate the account within 24 hours of receiving the activation link.
4.2 Only natural or legal persons with unlimited legal capacity who are entrepreneurs within the meaning of Section 14 BGB are entitled to register. There is no entitlement to the activation of an account. The account is not transferable without our prior consent.
4.3 Your general terms and conditions do not become part of the contract.
5.1 During the term of the contract, we permit you the non-exclusive, non-transferable and non-sublicensable use of the platform via the account assigned to you in accordance with these terms of use. In particular, you may reproduce the platform and the functions and services contained therein only to the extent necessary for the intended use. You are not permitted to reproduce, sell, rent, lend or otherwise transfer the platform and the functions and services contained therein, or parts thereof, to third parties beyond this, whether free of charge or against payment, or to grant them sublicences thereto. The intended and temporary granting of access to subcontractors is permitted.
5.2 Use is intended in particular to store and retrieve data for construction site documentation and communication, real estate management, asset management, maintenance and operation, and, where applicable, to share it with your subcontractors.
5.3 By using the platform, you do not acquire any rights to the platform or the functions or services contained therein beyond those granted in these terms of use, such as copyrights, patent rights, trademark rights or other intellectual property rights.
6.1 After the trial phase has expired, you must pay for the use of the platform and the associated functions and services within the scope of the licensing model you have ordered in accordance with the respectively valid price list.
6.2 The prices stated are always net. The respectively applicable value added tax is to be paid separately.
6.3 The fee is calculated in monthly instalments and is due for payment in advance on the 1st working day of each month, unless otherwise agreed in an individual case.
6.4 Unless otherwise agreed, we are entitled to collect our remuneration via direct debit. This requires your authorisation. You must ensure the necessary funds are available in the specified bank account.
6.3 We may adjust the fee to reflect general price developments. If the increase in the fee is more than 10%, you may terminate the contractual relationship with effect from the date of the price increase. We will announce a price increase in good time, generally at least one month in advance. You may exercise your special right of termination up to two weeks before the price increase takes effect.
6.4 Offsetting against our fee claims is excluded unless the counterclaim has been established with legal effect, is ready for a decision, or is undisputed. The same applies to the assertion of a right of retention.
7.1 The usage contract comes into effect upon activation of the account. Unless otherwise agreed, the contract applies for an indefinite period. In this case, either contracting party may ordinarily terminate the usage contract at any time with a notice period of 14 days to the end of a calendar month. Termination is effected by notification in text form.
7.2 By way of derogation, a fixed contract term may be agreed in an individual case. In this case, the contract ends upon expiry of the agreed term, unless automatic renewal is provided for. If automatic renewal is agreed, the contract is extended by the agreed renewal period in each case, unless it is terminated by one of the contracting parties in text form with a notice period of three months to the end of the respective term.
7.3 The right of the contracting parties to terminate for good cause without observing a notice period remains unaffected. Good cause exists in particular if a contracting party grossly violates the obligations expressly regulated in this contract, and in particular if insolvency proceedings are opened over the assets of the other contracting party or the other contracting party becomes insolvent or unable to pay. Good cause further exists if you are in default of payment of the fee, or of a not insignificant part of the fee, for more than 14 days. For you, good cause may exist in a significant shortfall in the agreed availability of the platform; this is regularly to be assumed in the case of a shortfall of more than 10%.
7.4 After termination of the usage contract, the data you have entered on the platform will be stored for a period of 30 calendar days. It is your responsibility to back up your data on your own initiative within this period. After the aforementioned retention period has expired, access to your data is no longer possible.
8.1 Within a maximum of 24 hours of receiving the order confirmation, please validate the email address you provided when registering your account by clicking the activation link sent in the order confirmation and then changing the password. If you do not carry out the validation within the deadline, the account will not be activated but the contract will be automatically dissolved. We will then delete your registration data.
8.2 You must procure and maintain the technical prerequisites for using the account (e.g. internet access, web browser, end device) at your own expense. You are also obliged to keep the operating systems, web browsers and mobile apps you use to access the platform up to date. You bear sole responsibility for the functioning of your internet access, including the transmission paths, as well as your own IT.
8.3 We provide you with the access credentials required to use the platform for identification and authentication. You are not permitted to pass these access credentials on to third parties, unless it is an additional user named to us who is included in the licence booked and taken into account in the fee calculation. New additional users must be reported to us before they begin their activity so that the fee calculation can be adjusted.
8.4 You must ensure that the content and materials you use are free of third-party rights and do not contain any unlawful content.
If third parties (including public bodies) assert claims or infringements of rights against us based on the allegation that you have breached contractual obligations, in particular that you have uploaded unlawful data to the platform or used the platform in an anti-competitive or otherwise unlawful manner, you must indemnify us from these claims without delay, reasonably support us in our legal defence, and indemnify us from the costs of the legal defence.
8.5 You may not take any actions that could impair the platform functionally or in its operation (e.g. through scripts). Likewise, you may not access non-public areas of the platform outside your own account, whereby even an attempted access constitutes a serious breach of these terms of use. In particular, you may not access other accounts or modify, overwrite, copy or distribute functions and data on the platform outside the intended use.
9.1 In the event of a breach of the obligations contained in these terms of use, in particular in the case of default of payment, we may block your access to the portal. This does not eliminate the obligations of this usage agreement. You must reimburse any costs associated with the blocking.
9.2 You expressly consent to being named as a reference customer in our external communications. Should customer logos, project data or similar be used in this context, this will be coordinated with you in advance.
10.1 Tenancy-law defect rights apply to claims for defects.
10.2 Claims for defects become time-barred within 12 months, unless a longer limitation period is mandatorily prescribed by law.
10.3 Claims for defects are excluded during free use of the platform (14-day trial access). Excepted from this are claims resulting from us having acted intentionally or with gross negligence.
10.4 The right of termination due to non-provision of use pursuant to Section 543(2) sentence 1 no. 1 BGB is excluded, unless the establishment of contractual use is to be regarded as having failed.
10.5 Liability irrespective of fault for material defects present at the conclusion of the contract (so-called guarantee liability) is excluded; Section 536a(1) alt. 1 BGB does not apply in this respect.
10.6 You must support us to the necessary extent in describing, delimiting, identifying and reporting malfunctions. In particular, malfunction reports and questions are to be made as precise as possible, and you must, where applicable, draw on competent staff. You must follow the instructions we provide.
10.7 You are yourself responsible for ensuring adequate virus protection on your IT and for keeping it up to date at all times. Liability for data loss is limited to the typical recovery effort that would have occurred with regular and risk-appropriate creation of backup copies.
10.8 The platform is not designed for time-critical or business-critical applications, and we therefore do not guarantee constant accessibility of the platform. In particular, the platform may be temporarily inaccessible during maintenance work or in the event of technical malfunctions. We also have no influence on the quality of the internet connection between your end device and the platform. Use of the mobile apps can also take place without an internet connection after the data has been synchronised.
10.9 Otherwise, we are liable, irrespective of the legal basis, for liability cases attributable to us as follows:
a) In the case of intent or gross negligence, we are liable without limitation.
b) In the case of simple negligence, we are liable only for damages resulting from the breach of a material contractual obligation (i.e. an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance you regularly rely and may rely); in this case, however, our liability is limited to compensation for the foreseeable damage typical of the contract. It must be taken into account here that the platform is operated for neither business-critical nor time-critical applications.
c) The exclusions and limitations of liability arising from sub-point (b) do not apply insofar as we fraudulently conceal a defect or have assumed a guarantee as to quality. They also do not apply to damages resulting from injury to life, body or health, or in the case of liability under the Product Liability Act.
d) Insofar as our liability is excluded or limited, this also applies to the personal liability of our legal representatives and vicarious agents.
11.1 The processing of personal data on the platform is described in our data protection information.
11.2 The platform uses third-party software (components), such as Amazon Web Services. In addition to these terms of use, the respective data protection and licence terms of third parties apply, which can be accessed at https://aws.amazon.com/de/compliance/data-privacy/.
12.1 Section 312i(1) sentence 1 nos. 1 to 3 and sentence 2 BGB are excluded.
12.2 The usage contract is subject to German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
12.3 The court with jurisdiction for our place of business in each case is agreed as the exclusive place of jurisdiction.
12.4 Should individual provisions of the usage contract be or become invalid, the validity of the remaining provisions is not affected thereby.
12.5 Amendments to the contract require text form. This also applies to the cancellation or amendment of this text-form clause. If we wish to amend this usage contract with effect for the future, we will notify you in advance of the planned changes to the terms of use and point out that the changes are deemed accepted if you do not object to them within four weeks but continue to use the platform. Notification is generally made to the email address stored in the account, otherwise via the platform itself.
12.6 There are no verbal side agreements.
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