ZECK GmbH offers customers an electronic system called “ZECK on Site” to document and visually represent construction progress in so-called line construction projects. As part of the offered service, customers obtain access to an Internet platform. Using mobile communication devices, they can transfer data on construction progress at the individual line construction sites to the platform, store the data in a file hierarchy and keep the data available in a variety of displays and visual representations. The General Terms of Business apply to the use of the service described above.
2.1. By entering into the user agreement with ZECK GmbH, the customer agrees that these General Terms of Business (GTB) apply to the contractual relationship between the customer and ZECK GmbH, to the exclusion of all other general terms of business, including those of the customer. The order form and these GTB are the basis of the contractual agreement between ZECK GmbH and the customer.
2.2. If the order form contains provisions that deviate from these General Terms of Business, the provisions in the order form shall take precedence. Any other deviating agreements between ZECK GmbH and the customer only apply if these have been agreed upon in a separate written agreement. Deviating, mandatory legal provisions take precedence.
2.3. The assurance of a guaranteed quality in the form of an exception to the special properties included in the limitation of liability defined in paragraph 10.1 requires the express and written confirmation by ZECK GmbH. The description of the object of the agreement and the contractual arrangements regarding properties are insufficient for this purpose. General advertising statements, descriptions and the product description on the ZECK GmbH website are not warranted properties in a legal sense.
3.1. ZECK GmbH services encompass the granting of access to and use of the “ZECK on Site” Internet platform operated by ZECK GmbH. The platform is used for the documentation and visual representation of line construction sites on the basis of data on construction progress that is transferred to the system by the customer within the scope defined by the product selection in the order form and according to the fees arranged there.
3.2. To enable access to “ZECK on Site”, ZECK GmbH makes the “ZECK Project Manager” web interface available. To enable customers to access the platform using mobile devices, ZECK GmbH makes the “ZECK Construction Manager” application software for mobile devices (smart phones, tablets) available to customers for download on the commonly used mobile app distribution platforms for the iOS and Android operating systems.
3.3. ZECK GmbH grants the customer access to the “ZECK on Site” system at the router output of the computer center that houses the system server (transfer point). The system software, computing power and storage and data processing memory required to operate the “ZECK on Site” system are made available by ZECK GmbH ZECK GmbH shall not be held responsible for the establishment and maintenance of the data connection between the customer’s IT systems and mobile devices and the transfer point.
3.4. To the extent that ZECK GmbH provides technical information or consulting without payment and this information or consulting does not belong to the scope of services expressly agreed upon and contractually arranged with ZECK GmbH, this shall be performed under exclusion of all liability.
3.5. Unless arranged with the customer in a separate Service Level Agreement (SLA), ZECK GmbH is not obligated to adhere to specific service parameters (e.g., specific times within which a response or return call is required).
3.6. ZECK GmbH is authorized to draw on third parties or subcontractors to provide the services.
4.1. ZECK GmbH shall take all reasonable measures to achieve the highest possible level of service availability. The customer acknowledges that limitations or disturbances of the provided services can arise that are beyond the sphere of influence of ZECK GmbH. Accessibility and functionality are highly dependent on third party systems, especially those of the cloud provider and the availability of the Internet. In the event of a functional limitation, downtime or other problems associated with these third-party systems, ZECK GmbH cannot guarantee full service availability at all times. Taking this premise into account, ZECK GmbH and the customer agree on the following:
4.2. If the interface availability provided by ZECK GmbH drops below a monthly average of 99.5 percent at the transfer point, ZECK GmbH will, upon written request from the customer, refund 50 percent of the user fee as per Para. 7 of the current month to the customer in the form of credit. This does not apply in the event of disturbances that ZECK GmbH cannot be held responsible for due to force majeure, unauthorized criminal access by third parties or brief downtime for maintenance, which are expressly excluded from the availability calculations. There is no further entitlement to compensation for damages.
4.3. If ZECK GmbH, by its own fault, does not attain the availability of 99.5% stated above in two consecutive months or drops below this level by more than three percent more than three times within a calendar year, the customer is entitled to terminate the contractual relationship without further notice. There is no further entitlement to compensation for damages beyond the provisions stipulated in the above Para. 4.2.
4.4. In addition, the statutory regulations governing warranties apply. § 536b German Civil Code (BGB) (Lessee knows of the defect upon entering into the agreement or upon acceptance) and § 536c BGB (Defects occurring during the lease period; notice of defect by the lessee) are applicable. However, the application of § 536a Section 2 BGB (Right of lessee to remedy the situation independently) is excluded. The application of § 536a Section 1 BGB (Lessor obligation to provide compensation for damages) is also excluded, to the extent that the standard provides for a strict liability.
5.1. For the products selected in the order form, ZECK GmbH grants the customer a single, non-exclusive, geographically unlimited right of use to the “ZECK on Site” Internet platform, the “ZECK Project Manager” web interface and the “ZECK Site Manager” app provided by ZECK GmbH. The right of use is limited to the contract period and the scope of use described herein.
5.2. The right of use described in the above Para. 5.1 is bound to the customer and may not be transferred from the customer to a third party or passed on in any other manner without the prior written consent of ZECK GmbH.
5.3. The right of use does not involve property rights and does not grant rights to the source code of the software or parts thereof.
6.1. Assurance of the correctness of the customer data and data versions transferred to the “ZECK on Site” platform is the sole responsibility of the customer. ZECK GmbH does not obtain knowledge of the customer’s data content and does not check the data used by the customer with the software.
6.2. The customer familiarizes itself and the persons performing the data entry for it with the “ZECK on Site” operating instructions and adheres to the warning notes therein. The customer is aware that the software is not permitted to be used for the following activities: documentation of switching, acceptance of switching from the network operator (daily or weekly switching), identification of voltage-carrying or voltage-free masts, marking of grounded or voltage-free power masts and other activities related to switching/changeovers and/or releases.
6.3. The customer is responsible for properly and regularly performing backups of its data, especially by creating local backup files.
6.4. To be able to use “ZECK on Site”, the system requirements stipulated in the product description must be met by the customer. This is the responsibility of the customer.
6.5. The customer is obligated to keep the provided “ZECK on Site” access data confidential and to ensure that its employees to whom the access data is made available keep it confidential as well.
7.1. The user fee is based on the prices stipulated on the order form. All prices are exclusive of the value added tax required by law at the time of the service provision. The user fee is paid in advance on a monthly basis, no later than the third workday of the month for the next month.
7.2. ZECK GmbH and the customer agree that the invoicing is permitted to be executed electronically, for example in the form of a PDF document. The customer expressly agrees with this form of invoicing.
7.3. ZECK GmbH is authorized to adjust the user fees in accordance with the general price development from time to time. In this case, ZECK GmbH shall inform the customer about the intended user fee adjustment at least four weeks prior to the intended price increase. If the customer is not in agreement with the price increase, the customer has the right to extraordinary termination of the affected part of the agreement by giving written notice within four weeks after receiving notification of the user fee increase. The date on which the notice of termination arrives at ZECK GmbH applies for compliance with the deadline. After the deadline expires, termination on account of the user fee increase is excluded. If the customer does not make use of this right to termination, the user fee increase becomes effective.
7.4. In the event of a default in payment caused by the customer, the customer bears all default damages.
7.5. If the customer delays payment of a payable user fee by more than four weeks, ZECK GmbH is authorized, after first issuing a warning with a new deadline and after expiration of this deadline, to block access to “ZECK on Site”. The entitlement to the user fee remains even after access is blocked. If the arrears are fully settled within six month of the initial default, access to “ZECK on Site” is restored for the customer. Following expiration of the six months after the initial default, ZECK GmbH will delete the construction sites created by the customer and all of the associated data.
The customer permits ZECK GmbH to produce advertisements featuring the business relationship with the customer and to name the customer as a reference customer for advertising purposes. The customer grants ZECK GmbH the right of use to its name and commercial signs for the purpose of producing advertisements featuring the business relationship. This right of use is limited to the contract period, global, non-exclusive and non-transferable.
9.1. The contract relationship begins on the first of the month following the signature date on the order form, unless a different time was expressively agreed upon in the order form. The contract relationship runs for an indefinite period and can be terminated at the latest two weeks prior to the end of each month. The right to extraordinary termination is not affected by this.
9.2. ZECK GmbH is authorized to delete the construction sites and projects as well as all associated data created by the customer after six months have elapsed following termination of the contract. The customer is aware that it can create local backups of its data; the customer shall make use of this opportunity within the above-specified backup period.
10.1. The contracting parties shall be liable according to the statutory provisions for damage incurred by the other contracting party
• Due to grossly negligent or deliberate breach of duty
• On account of the absence of the guaranteed quality
• As a consequence of the culpable breach of major contractual obligations
• On account of culpable injury to health, limb or life, or
• For which the product liability law stipulates liability with the following provisions:
10.2. In case of gross negligence on the part of vicarious agents who are not legal representatives or executive employees of the contracting parties, liability for property and financial damage is restricted to typically foreseeable and direct damage, provided that the damage does not involve injury to limb, life or health and does not affect a promised guarantee or mandatory statutory provisions as per the product liability law. Liability for loss of profit is excluded.
10.3. Major contractual obligations are obligations the fulfillment of which make the proper execution of the contract possible and the observance of which the contractual partner regularly relies upon and is entitled to expect, and the breach of which would jeopardize the attainment of the purpose of the contract by the other side. In the event of a breach of major contractual obligations, liability shall be limited to typically foreseeable and direct damage. Liability for loss of profit is excluded.
10.4. In cases of simple negligence or strict liability, liability is limited to eight thousand euros or, if greater, to the payment paid by the contracting party to ZECK GmbH in the previous calendar year, per calendar year, provided that the damage does not affect limb, life or health or a promised guarantee or mandatory statutory claims as per the product liability law. Liability for indirect damage and loss of profit is excluded.
10.5. In addition, to the extent that damage does not affect limb, life or health or a promised guarantee or mandatory liability as per the product liability law, liability is excluded.
11.1. The contracting parties undertake to adhere to all applicable data privacy provisions and data protection regulations when collecting, processing and using personal data in the context of this contract.
11.2. ZECK GmbH undertakes to only use the data obtained during execution of the contract for the scope and purpose required to execute the contract and as instructed by the customer.
11.3. The data are processed exclusively in the Federal Republic of Germany, a member state of the European Union, or another country which is a signatory to the Agreement on the European Economic Area. Any transfer into a third country requires the prior approval from the contractual partner and is only permitted if the special requirements of Article 46 GDPR (General Data Protection Regulation) are fulfilled.
11.4. ZECK GmbH undertakes to take appropriate and suitable technical and organizational measures to protect the processed customer data. These measures must be adequately documented and the customer must be granted access to this documentation upon written request.
11.5. ZECK GmbH undertakes to notify the customer immediately if violations against the regulations to protect personal data are discovered and if personal data are lost or unlawfully transferred or disclosed.
11.6. ZECK GmbH shall inform the customer immediately of inquiries, complaints or revocation declarations of third parties regarding their personal data.
12.1. This contract and all legal relationships based on this contract shall be governed by the law of the Federal Republic of Germany, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.2. The exclusive place of jurisdiction of disputes between the parties of this contract is Bamberg, Germany.
13.1. Changes or supplements to the contractual relationship between ZECK GmbH and its contractual partner must be made in writing. This also applies to changes regarding the requirement for the written form.
13.2. If individual provisions of this contract are void in whole or in part, the validity of the remaining provisions remains unaffected. The parties shall substitute the void clause with a valid clause, which will come as close as possible to the purpose and the commercial intention of the void clause.
Edition: December 2019