General terms and conditions of use and business of CONTAKT GmbH.
1. Validity of the General Terms and Conditions of Use and Business
1.1. The subject of these General Terms and Conditions of Use (“GTC”) is the renting out of the Contakt platform and/ or Sitelife either by CONTAKT GmbH (“CONTAKT “) as a direct supplier or by Doka GmbH (“Doka”) as a reseller, both with registered offices in A-3300 Amstetten, Josef Umdasch Platz 1. The “Supplier” within the meaning of these GTC is the company with which the customer concludes the contract for the use of the CONTAKT platform. This party will be disclosed to the customer accordingly as the invoicing party. In the event that Doka acts as Supplier, Doka is entitled to have all rights and obligations under this contract exercised or performed by CONTAKT. This applies vice versa in the event that CONTAKT acts as a Supplier. An updating obligation according to § 7 Consumer Warranty Act (VGG, BGBl. I No. 175/2021) of the supplier is expressly excluded.
1.2. The CONTAKT platform (hereinafter also referred to as “Application”) is an application/web interface that can be loaded onto an internet-capable mobile device (smartphone or tablet/laptop) together with the sensor technology (“Sensors” or “Hardware”) that is provided, through which concrete construction projects can be monitored, documented and controlled in all phases and processes via a visualisation.
1.3. The Application can be downloaded via an appstore. After conclusion of the contract and transmission of the access data by e-mail to all authorised users (“Named Users”), they can log in to the Application.
1.4. The Supplier’s offers are always subject to alteration or confirmation. All agreements and orders are only legally binding if they are signed by the Supplier in writing and in the company’s name and only to the extent actually commissioned. Declarations by employees only become binding for the Supplier upon written confirmation.
1.5. The GTC also apply to future transactions between the customer and the Supplier regarding the rental or use of the Application, even if no further reference is made to the GTC when concluding a future contract.
1.6. The customer’s terms and conditions of business or purchase do not apply to the present legal transaction and the entire business relationship unless the Supplier has expressly accepted to be bound by them in writing.
1.7. The Supplier reserves the right to amend these GTC at any time and without giving reasons. The customer will be notified of the change by way of an e-mail or in another manner agreed between the parties. The changes are deemed to be approved if the customer does not object to them in writing within two weeks of receipt and continues to use the Application after the objection period has expired. The Supplier will notify the customer that the changes will be deemed to have been approved in the event of further use in the absence of a timely objection.
1.8. Insofar as provisions for the customer are stipulated in these GTC, the third parties attributable to the customer – in particular the customer’s own employees, leased employees, subcontractors, suppliers, affiliated companies and all Named Users – shall also be deemed to be included.
2. Scope of Services, Rental Fee
2.1. The type and exact scope of the services will be regulated in detail in writing between the parties within the framework of the conclusion of the contract. The following scope of services is deemed to be agreed in the absence of any detailed provisions to the contrary:
2.2. The Supplier’s performance includes the provision of the required hardware (Sensors), the required software, installation, a basic training and support for the basic operation of the system. These services are made available to the customer against payment of a monthly rental fee. The customer does not acquire ownership of the objects of performance, neither regarding the hardware nor the software.
2.3. The customer is obliged to pay a monthly rental fee for the use of the Application, the amount and conditions of which will be agreed in writing in the course of the conclusion of the contract. In the absence of an express provision, an appropriate fee will be owed. The rental fee is owed for the entire term of the contract.
2.4. Agreed consulting services are to be paid for additionally by the customer depending on the time and material involved in accordance with the price list for consulting services. The Supplier’s consulting services include, in particular, support for the importing of changes to the construction plan into the Application and other services provided by the Supplier that go beyond the installation, the basic training and the support for the basic operation of the system.
3. Delivery and Delivery Time
3.1. The Supplier endeavours to meet the agreed deadlines as closely as possible; however, stated performance dates are generally non-binding. Moreover, the targeted performance dates can only be met if the customer provides the Supplier with all necessary work and documents in full and fulfils its obligation to cooperate.
3.2. The Supplier is not liable for delays in delivery and increases in costs caused by incorrect, incomplete or subsequently changed details and information or documents made available at a later time and those delays will in no case lead to a default on the part of the Supplier. Any resulting additional costs are to be borne by the customer.
3.3. Additional services due to changes that are not attributable to the sphere of the Supplier – in particular as a result of official requirements, changes to relevant regulations and changed customer requirements – shall be taken into account in accordance with the increased scope of services.
3.4. Force majeure or other unforeseen obstacles in the sphere of the Supplier (official interventions, unforeseeable operational disruptions, labour disputes, transport blockages as well as other circumstances beyond the Supplier’s control), which prevent timely delivery, entitle the Supplier to a reasonable postponement of performance dates.
3.5. With regard to the individual service components (e.g. software, hardware, training, etc.), the Supplier is entitled to perform partial services or to issue partial invoices.
4. Provision of the Hardware (Sensors)
4.1. After the signing of the contract, the agreed number of Sensors will be delivered to the customer at the delivery location (construction site) agreed in the contract at the agreed delivery time, unless self-collection has been expressly agreed. In addition to the agreed number of Sensors, a quantity of replacement Sensors will be supplied depending on the scope of the Sensors supplied.
4.2. The Sensors supplied may also be used ones.
4.3. In case of a failure of a part of the sensor technology that makes the agreed use of the Application impossible, the Supplier will replace the failed Sensors. A reduction of the rental fee due to Sensor failure is hereby excluded.
4.4. The monthly rent is due on the first day of each month. The monthly rent for the first month of the term of the contract is due on the day the application is put into operation. In the event of non-payment of the first month’s rent on the day of commissioning, the Supplier reserves the right to refuse the handover. If payment by credit card has been agreed with the customer, delivery will only be made after the purchase price has been debited from the customer’s account successfully.
4.5. The rental fee takes into account the wear and tear of the Sensors that cannot be prevented despite careful and proper use; proper use in any case requires compliance with the Supplier’s instructions as well as the Supplier’s respective manuals for use, which are provided to the customer free of charge. In particular, when used properly, no contamination of the Sensor with concrete takes place that would impair its proper use.
4.6. After the end of the contract, all Sensors have to be returned to the Supplier without batteries. Therefore, the batteries have to be removed from the Sensor before shipping and the Supplier will not bear any costs for disposal. The return has to be confirmed by the Supplier. However, only the receipt is confirmed, not the quantity and condition of the Sensors.
4.7. The Sensors have to be cleaned and returned to the Supplier. Otherwise, the customer shall reimburse the Supplier for the costs of cleaning. If there are defects in the returned Sensors that go beyond the wear and tear that occurs during proper use, the customer has to bear the costs of repair. Insofar as Sensors returned damaged can no longer be repaired (total loss) or if Sensors are not returned (missing material), the customer has to reimburse the Supplier for the value of the Sensors less a deduction for usage in the amount of 15%. The Supplier’s claims arising from the rental up to the time of replacement of the value of the Sensors remain unaffected. The customer does not acquire ownership of the damaged / non-returned Sensors through the replacement service. The customer also bears the costs for the disposal of Sensors that are no longer usable.
4.8. The customer is prohibited from handing over the delivered Sensors to third parties as a pledge or in order to create a security interest in them or in order to dispose of them in any other way for the benefit of third parties.
4.9. In the event of a seizure or any other claim to the rented items by third parties, the customer is obliged to assert the Supplier’s right of ownership and to notify the Supplier in writing without delay. The customer has to reimburse the Supplier for all costs incurred by the Supplier in connection with the protection of its ownership rights. At the Supplier’s request, the customer has to provide the Supplier with all documents and information that are necessary for safeguarding and enforcing the ownership right.
4.10. If the customer is in payment default, the Sensors have to be returned to the Supplier immediately upon request. If the customer does not comply with this request without delay, the Supplier is entitled to collect the Sensors owned by the Supplier. The costs and risk of transporting the Sensors to the Supplier will in any case be borne by the customer. In this case, the return or collection of the Sensors is not deemed to be a premature termination of the contract.
4.11. The transfer of the Sensors to a location other than the designated construction site requires the written consent of the Supplier. All costs incurred by the Supplier as a result of shipment contrary to this obligation are to be borne by the Customer and are to be invoiced to the Customer.
5. Provision of the Software
5.1. The Supplier is the holder of rights regarding the software required for the Application. All rights to the software, including all rights to the associated documentation and (development) materials, as well as to derivative works based thereon, remain with the Supplier. This includes in particular all intellectual property and related rights.
5.2. The customer does not acquire any rights to the software even if the customer participates in the creation or editing of the software or adapts the software to customer-specific requirements.
5.3. For the term of the contractual relationship, the customer receives a non-exclusive, non-transferable and non-sublicensable right to use the software for the intended purpose by all authorised users named by the customer in the contract, which are to be created by the Supplier; the use shall commence with the Supplier’s notification of the access data to the named authorised users.
5.4. The customer has to name all authorised users. The customer shall ensure that the authorised users do not pass on their access data, which they receive from the Supplier by e-mail after conclusion of the contract, to third parties, keep them safe and protect them from unauthorised access by third parties. Third parties in this sense also include other employees of the customer who have not been designated as authorised users. The customer has to report any misuse or unauthorised use to the Supplier in writing immediately. Until this notification by name, any access and any related action or use of services by unauthorised third parties will be attributed to the customer.
5.5. In particular, the customer is not authorised – except to the extent required by law – to modify, edit, translate, reverse engineer, recompile or decompile the software or to create derivative works thereof, whether temporarily or permanently or in whole or in part, or to reproduce the software, publish, distribute, lease or resell the software or to make it available to third parties for commercial or non-commercial purposes. Furthermore, the customer is not entitled to operate the software for third parties.
5.6. The customer undertakes not to remove or manipulate copyright notices and control marks of the Supplier on the software and/or the associated documentation under any circumstances.
5.7. Although the software has been developed with the greatest possible care and expertise, the customer acknowledges that it is not possible to produce software programmes that are completely free of errors. For this reason, the Supplier does not guarantee that the software will function without interruption or without errors or that it is possible to completely eliminate any errors. The customer has to notify the Supplier of any otherwise obvious defects in the software immediately after they are discovered, giving a precise description of the nature and occurrence of the defects.
5.8. The customer itself is responsible for the backing up of its data.
5.9. The Supplier will import updated versions of the software in each case.
6. Basic Training
6.1. The basic training included in the rental fee comprises training regarding the use of the software, regarding the planning method and the use of Sensors.
7. Support for the Basic Operation of the System
7.1. Subject to the fulfilment of all obligations under the contract and the payment of the applicable rental charge, the Supplier is providing a helpdesk for the Customer in order to assist with technical queries. The helpdesk provides its support services by telephone or by remote access to the customer’s system. On-site services are not covered by the helpdesk and have to be paid for separately. The helpdesk also only provides support for technical questions regarding the functionality of the Application. Specialist consultancy services (e.g. construction management methods, data analyses, etc.) are not included.
7.2 The Helpdesk is available to the customer via the telephone number of the assigned Project Delivery Manager or by email at firstname.lastname@example.org and is available Monday to Thursday, 09:00 to 5:00 p.m. and Friday 09:00 to 3:00 p.m. (on working days), unless other service hours are agreed.
7.3 Any additional costs, expenses or disbursements in relation to the support to the extent caused by (a) incorrect, incomplete or otherwise insufficient information provided by the customer, (b) unauthorised attempts by the customer to rectify an error without the Supplier having been duly informed and consulted, or (c) any other breach by the customer of its obligations under the GTC, are subject to a separate reasonable charge to be agreed between the parties.
8. Lease Term and Termination Rights
8.1. The rental period is agreed with the customer individually in each case. In the absence of an agreement, the lease is concluded for an indefinite period of time; it may be terminated in writing by either party with 1 (one) month’s notice to the end of any month. The parties waive the assertion of the ordinary right of termination for the first 3 (three) months. The right to extraordinary termination for good cause remains unaffected.
8.2. The right to extraordinary termination before the expiration of the agreed contractual term exists if there is an important reason which makes the continuation of the contractual relationship not reasonably acceptable for the terminating party. Important reasons entitling the Supplier to an extraordinary termination exist in particular,
- in the event of payment default or another default regarding the performance of contractual obligations by the customer, despite the setting of a grace period of two weeks;
- if the customer violates the contractually agreed restrictions on use or in the event of other misuse or improper use of the application by the customer;
- in the event of a sustained impossibility of performance of the obligations of the Supplier for technical, economic or legal reasons which lie in the sphere of the customer;
- in the event of a significant deterioration in the economic situation of the customer or a third-party providing security.
8.3. The rental period commences on the date on which the Sensors are made available or delivered by the Supplier for collection or use and ends on the agreed or early end of the contractual relationship or on the date of return of the Sensors to the Supplier’s contractually agreed warehouse, whichever is occurring later. Pick-up and drop-off days count as a full rental day.
8.4. The obligation to pay rent ends in principle with the end date of the rent as defined under point 8.3. In the event of a justified extraordinary termination for good cause by the Supplier or an unjustified extraordinary termination by the customer, the obligation to pay rent continues to apply until the earliest date on which the rental could have been terminated by way of an ordinary termination.
8.5. With the end of the contractual relationship, the customer is in principle no longer entitled to use the Application. In this case, the Supplier is entitled to block the customer’s access to the Application at any time.
9.1. The agreed rental fee will be invoiced on the first of the respective calendar month and is due for immediate payment without deductions.
9.2. The receipt/credit entry on the Supplier’s account is decisive for the timeliness of the payment. In case of doubt, the payment will be credited against the oldest debt of the customer.
9.3. Invoices are made available to the customer via the Application or transmitted electronically and can be viewed and downloaded online. The invoice is deemed to have been received at the time at which it can be accessed or taken note of by the customer under normal circumstances (e.g. receipt of the e-mail). The Supplier reserves the right to charge a fee (e.g. handling fee), should the customer wish to receive invoices in paper form. If e-mail invoices are sent, customers will receive them at the e-mail address provided.
9.4. In the event of a delivery by the Supplier to the agreed place of delivery, payment shall be made either by credit card or after the invoice has been issued. A payment after the invoice has been issued requires the Supplier’s consent. It is at the Supplier’s sole discretion to insist on payment by credit card. In the event of payment by credit card, all relevant credit card details have to be provided in the course of the order. The customer has to ensure that the credit card is not blocked or has not expired; any delays in payment resulting therefrom are to be borne by the customer. In this case, the customer may be charged interest on arrears.
9.5. In the event of late payment, the Supplier will charge annual interest on arrears in the amount of 9.2% above the base interest rate of the Austrian National Bank, but at least 12% per annum. In addition, the Supplier is to be reimbursed for all reminder and collection expenses incurred in connection with the collection of the claims. Any further claims for damages remain unaffected.
9.6. If the customer is in default with the payment or with the performance of other contractual obligations, the Supplier is entitled, without prejudice to other rights, to withhold or suspend services until the agreed consideration has been provided; in particular, access to the Application may be suspended in this case.
9.7. The customer’s right to settle the Supplier’s claims by offsetting them against its own claims is excluded. The customer is not entitled to withhold payments due to incomplete delivery, alleged warranty claims or other complaints.
10.1. The amount of the remuneration is based on the individual agreement between the parties. All prices quoted are net prices excluding VAT or other import/export duties and are ex works in accordance with Incoterms 2010.
11.1. The Supplier undertakes, in accordance with the statutory warranty provisions and the restrictions set out in these GTC, to maintain the functionality and operational readiness of the Application for the term of the contractual relationship without separate charge and to remedy defects in the Application within a reasonable period of time. The scope of warranty does not include the elimination of defects and additional expenses caused by external influences (including circumstances from the sphere of the customer as well as force majeure), operating errors and modifications and attachments not carried out by the Supplier.
11.2. The burden of proof for the existence of defects always lies with the customer. Only reproducible defects are recognised.
11.3. The Supplier does not guarantee the continuous or absolutely error-free availability of the Application and points out that access to the Application may be restricted or discontinued for a reasonable period of time for necessary reasons (e.g. maintenance, updates, upgrades). In any case, 3 (three) working days are deemed to be a reasonable term. Insofar as a defect can be remedied by implementing updates, upgrades or a new version of the Application, the customer is obliged to accept the remedying of the defect in this way.
11.4. The customer loses all warranty claims if he modifies or processes the software on his own authority or is otherwise responsible for the defect that has occurred.
11.5. The Supplier will remedy any defects within a reasonable period of time by way of improvement or replacement (at the Supplier’s discretion), depending on the severity of the notified defect. If the Supplier is unable to remedy the defect in an economically justifiable manner within a reasonable period of time, this constitutes a valid reason for an extraordinary termination in favour of the customer. Further claims are hereby excluded.
11.6. The warranty claims for notified defects have to be asserted in court within six months.
11.7. The notification of defects does not release the customer from its payment obligation. The prerequisite for a warranty obligation on the part of the Supplier is that the customer has fulfilled all obligations, in particular its payment obligations, and has made the notification of defects in due time and in a specified manner.
11.8. By negotiating about defects or complaints, the Supplier does not waive the objection that the complaint has been raised late or has not been sufficiently specified.
12. Liability, Error
12.1. The Supplier is not responsible for a specific success, but for the performance of the agreed services with the due care of a prudent businessman and in accordance with the state of the art. In particular, any responsibility for the success of the construction project is hereby excluded.
12.2. Solutions achieved via the Application are intended to support the customer in the execution of a construction project, but without replacing the customer’s own decision-making. It is the sole responsibility of the customer how and whether to use the application and whether to base its decisions on the Application. The Supplier is not liable for any decisions taken by the customer. Essential for the quality of the solutions achieved via the Application is the correctness and accuracy of the data input by the customer, for which the customer bears sole responsibility.
12.3. Liability for other damage caused by the Supplier’s performance is generally excluded in the event of slight negligence. In particular, the Supplier is not liable for the retrievability, loss or deletion of data stored in the Application, unless the loss or deletion was caused by it intentionally or by gross negligence. Furthermore, except in the case of intent, there is no liability for the compensation of consequential damage or loss of profit and in any case not for interruptions to the customer’s construction projects. The foregoing exclusions of liability do not apply to compulsorily applicable liabilities under applicable product liability laws.
12.4. The customer bears the burden of proof for the existence of culpable conduct on the part of the Supplier.
12.5. The Supplier takes appropriate safety measures that correspond to the state of the art. The Supplier is not liable for any damage that nevertheless occurs due to external attacks (malware, hacking, etc.).
12.6. The Supplier is not responsible for the licensed software being free of third-party rights. To the extent permissible under mandatory law, in the event of a claim against the Supplier for whatever reason, the Supplier’s liability is in any event limited to a maximum of the amount of the rental charge payable for one contractual year.
12.7. Any claims for damages have to be asserted by the customer in court within 6 months of knowledge of the damage and the damaging party, but at the latest within 2 years of the occurrence of the damage.
12.8. The customer is liable for all damage caused by a violation of the customer’s contractual obligations and has to indemnify and hold the Supplier harmless against any claims of third parties of whatever nature.
12.9. A challenge due to error is excluded.
13.1. Both parties can exchange confidential information.
13.2. Explicitly confidential information is all information and data accessible to the Supplier regarding the customer’s construction sites or the software made available to the customer by the Supplier, including the associated documentation. Such information is confidential in the sense that (i) it is not generally known or readily available, either in its entirety or in the precise arrangement and composition of its components, to persons in the circles which normally handle this type of information, (ii) it is of commercial value, and (iii) it is subject to reasonable confidentiality measures by the customer or the Supplier as the circumstances require.
13.3. Any disclosure of confidential information of the respective other party to third parties is strictly prohibited for the Supplier as well as the customer – even after the end of the contract.
13.4. The Supplier as well as the customer have to take all necessary measures to prevent confidential information from being made accessible to third parties or otherwise coming to their knowledge, from being duplicated or converted into other media.
13.5. The Supplier as well as the customer are obliged to prevent a breach of the confidentiality agreement and, in the event of a breach, to take all steps to prevent a further continuing breach.
14. Protection of Personal Data and Use of Application Content
14.1. Within the scope of the use of the Application, personal data within the meaning of Article 4 paragraph 1 of the EU General Data Protection Regulation (GDPR) is also partially processed via the Application by the customer or by the users attributable to the customer (Named Users) (e.g. name, e-mail, telephone number as well as entered performance data of the Named Users and other employees of the customer). With regard to this personal data, the Supplier acts as a processor within the meaning of Article 4 paragraph 8 of the GDPR. In this case, the customer is solely responsible for the lawfulness of the data processing as the controller within the meaning of Article 4 paragraph 7 of the GDPR. For this purpose, the parties submit to the order processing agreement contained in Annex 1 of these GTC pursuant to Article 28 of the GDPR upon conclusion of the contract.
14.2. To the extent that the customer (i) provides comments, ideas, changes or other feedback to CONTAKT in relation to the Application (Customer Feedback) or (ii) in the course of using the Application, provides project-related data (e.g. plans, drawings, order data, materials and construction progress) (Project Data) in the course of using the Application, the Customer grants CONTAKT and its affiliates (at no additional cost) the right to use such Customer Feedback and Project Data (which may include confidential information and works protected by intellectual property rights) for the purpose of improving and developing its own products and services. This right is granted without a temporal or geographical limitation and covers all conceivable types of use, including the right to create modifications or combinations with other data. Any disclosure of Customer Feedback and Project Data to third parties is strictly limited to aggregate (non-identifiable) form.
14.3. The customer warrants that the Customer Feedback and the Project Data are free from third party rights contrary to this clause 14 and undertakes to indemnify and hold Doka and CONTAKT harmless in this respect.
15.1. The customer is not allowed to transfer rights and obligations arising from the contractual relationship to third parties without the express prior written consent of the Supplier. In the event of a universal succession, all rights and obligations are passed on to the legal successor.
15.2. Without the written confirmation of the Supplier, any oral agreements, promises and information, in particular from employees of the supplier, do not apply.
15.3. There are no verbal ancillary agreements. Any amendments and additions to these GTC have to be made in writing; this also applies to ancillary agreements and assurances as well as subsequent amendments to the contract, as well as to any waiver of the written form requirement.
15.4. The written form requirement can be fulfilled by e-mail. For other notifications or legally relevant communication, e-mails are also sufficient, unless otherwise expressly stipulated in the individual case or in these GTC.
15.5. If, for whatever reason, one or more provisions of these GTC or of a contract based on these GTC are invalid or unenforceable, this does not affect the validity of the remaining provisions. The invalid or unenforceable provision is to be replaced by a provision that comes as close as possible to the intended purpose. This also applies mutatis mutandis in the event of a gap in the provisions.
15.6. Any legal transaction fees incurred in connection with the conclusion of the contract or its extension is to be paid by the Supplier and charged to the customer.
15.7. All legal relationships between the Supplier and the customer are governed by Austrian law to the exclusion of the reference norms of the Private International Law or the UN Convention on Contracts for the International Sale of Goods.
15.8. The place of performance is the registered office of the Supplier.
15.9. Any disputes arising out of or in connection with these GTC and the transactions based thereon is subject to the exclusive jurisdiction of the court having subject-matter jurisdiction for Amstetten or, at the Supplier’s option, the court having subject-matter jurisdiction at the customer’s place of business. The Supplier is entitled to sue at the customer’s general place of jurisdiction.
15.10. If you have any questions, please contact: email@example.com