General Terms and Conditions of Points2BIM (as of 05/2024)
1.
Scope of application
Points2BIM GmbH, Reichsstraße 48, 09112Chemnitz (“POINTS2BIM”) provides its deliveries and services in business transactions with entrepreneurs, legal entities under public law or special funds under public law exclusively on the basis of these General Terms and Conditions (“GTC”), unless otherwise stipulated in individual contracts. Insofar as the term “service” is used in the following, this refers to all deliveries and services of any kind provided by POINTS2BIM to the customer. If the masculine form is used in relation to persons, this refers to both female and diverse persons, unless otherwise agreed in individual cases.
POINTS2BIM does not provide services to consumers within the meaning of § 13 BGB (German Civil Code) subject to these GTC.
In the event that the customer does not wish the GTC to apply, he must notify POINTS2BIM of this in writing before or at the conclusion of the contract. Deviating (purchasing) conditions of the customer or third parties are rejected. Therefore, the terms and conditions of the customer or third parties do not apply even if POINTS2BIM does not separately object to their validity in individual cases or if POINTS2BIM refers to a letter that contains or refers to the terms and conditions of the customer or a third party.
References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2.
Definitions
For the purposes of these GTC is or are
Working day
Monday to Friday with the exception of public holidays in the Free State of Saxony and with the exception of December 24 and 31;
Foreign trade restrictions
Prohibitions and restrictions imposed by the foreign trade law applicable to the specific individual contract and its fulfillment (in particular export control and/or customs regulations including embargoes and prohibitions on provision), in particular under the foreign trade law of the Federal Republic of Germany and of the country in which the customer has its registered office or to which and through which the intended delivery or service is provided;
Prohibition on the provision of foreign trade
Prohibition on the direct or indirect provision of funds, technical assistance or economic resources to certain persons, countries, institutions or organisations;
Order
is a binding offer by the customer to conclude an individual contract;
Individual contract
the contract concluded in the individual case within the scope of these General Terms and Conditions; for orders in the POINTS2BIM online shop, the detailed content of the individual contract arises in particular from the selection made by the customer during the ordering process;
Content data
is data that is uploaded by the customer or at the request of the customer to the servers of POINTS2BIM, or otherwise handed over by the customer or at the request of the customer to the IT systems of POINTS2BIM;
Inadmissible content data
means content data that violates the law, an official order or common decency or contains malware or promotes the distribution of such software; this includes in particular violations of the General Equal Treatment Act and the provisions of youth and data protection, criminal and anti-competitive acts, violations of the rights of third parties, namely general personal rights, the right to one’s own image, copyrights, name rights, trademark, company and other industrial property rights, violations of a trade or business secret, as well as pornographic, violent, discriminatory, religiously offensive, racist or right-wing extremist content, hate speech, spam and other unwanted advertising, viruses, worms, Trojans and phishing links.
3.
Conclusion of individual contracts
An individual contract and thus a contractual commitment for the individual services comes about through an order confirmation from POINTS2BIM, through conclusive action, in particular when POINTS2BIM begins to provide the contractual service after the order, or when the customer accepts a binding offer from POINTS2BIM. The product and service descriptions from POINTS2BIM do not constitute a binding offer.
If the customer orders via the POINTS2BIM online shop, the following applies in addition to paragraph 1: After creating a customer account, opening the existing customer account or, if no such account is created, entering the customer’s personal data including uploading the point cloud, generating the BIM model and viewing the BIM model, an overview page appears before completing the ordering process. There the customer can check the accuracy of his details and correct any incorrect information. The customer can cancel the ordering process at any time by pressing the “Back” or a similar button or by closing the browser window. After checking the accuracy of his details on the overview page, the customer places an order by pressing the “order with payment” button in the final step of the ordering process. After the order has been successfully received, the customer receives an email confirming receipt of the order and providing all necessary information about the order. This confirmation email only represents a binding acceptance of the order if this is expressly stated by POINTS2BIM. The only language available for concluding the contract is German. The information on the individual contract is sent to the customer by email and, in the case of an order, is available to the customer via a customer account until it is deleted.
4.
Content of services
The specific content of the services owed by POINTS2BIM arises from the individual contract together with any agreed contract amendments and additions.
POINTS2BIM is entitled to make minor deviations from the agreed service provision, provided that these do not affect the quality of the service and are reasonable for the customer.
Product descriptions, illustrations, test programs, etc. are descriptions of services and do not represent a guarantee of properties. The guarantee must be in writing to be effective. It can only be effectively declared by a managing director or authorized representative of POINTS2BIM. Other employees of POINTS2BIM are not authorized to declare guarantees.
As long as POINTS2BIM services are free of charge for the customer, POINTS2BIM services are purely voluntary and the customer has no claim against POINTS2BIM for continued services. POINTS2BIM reserves the right to discontinue the free services in whole or in part at any time without prior notice.
POINTS2BIM may also provide its services through third parties.
5.
Use of P2BIM
Use of P2BIPOINTS2BIM provides the customer with P2BIM for retrieval via the Internet (“Software as a service” – SaaS). Further details, particularly regarding the nature and scope of services, are set out in the individual contract.M
IMPORTANT NOTE: The BIM models created automatically by P2BIM are based on a large amount of data that is processed using appropriate algorithms and/or artificial intelligence applications. The results generated automatically by P2BIM therefore always require plausibility and validation by the customer. Under no circumstances may such results be accepted without being checked; this can lead to significant consequential damage.
Together with the BIM model, the customer receives an error report as a PDF document for documentation purposes and to facilitate error analysis. No further documentation is required.
POINTS2BIM is obliged to carry out data backups and recovery services only if and to the extent that this is agreed in the individual contract.
6.
Availability
POINTS2BIM provides the customer with P2BIM with an average availability of 95% per year. This does not include times during which the use of P2BIM is interrupted or impaired due to required maintenance work (Section 7) or for reasons beyond POINTS2BIM’s control.
POINTS2BIM’s obligations do not include the customer’s access to the Internet or the operation of data lines or data networks as part of the public Internet. POINTS2BIM therefore assumes no responsibility for the functionality of such data networks or such data lines to its servers, with the exception of the data lines between its servers and the respective transfer point to the public Internet. In particular, POINTS2BIM assumes no responsibility for power outages or for failures of networks or servers insofar as these affect the public Internet.
POINTS2BIM is also not responsible for the content data provided by or at the request of the customer. In particular, malfunctions and failures that are due to the lack of provision or the poor quality of the customer’s content data, for reasons beyond POINTS2BIM’s control, are not taken into account when calculating availability.
7.
Maintenance work
POINTS2BIM’s regular maintenance window is between 6 p.m. and midnight, CET. POINTS2BIM will announce the time and exact duration of the work, as well as the specific extent of the impairment to use, on the POINTS2BIM website three working days in advance. In justified individual cases, in particular to eliminate IT security risks, maintenance work can also be carried out outside the regular maintenance window and with a shorter notice period or without notice. The total duration of the maintenance work may not exceed twelve hours per quarter.
8.
Rights of use for P2BIM
POINTS2BIM grants the customer a purely contractual and non-transferable right of use to P2BIM for the period of contractual use.
The right of use is limited to the purpose of granting the use. Unless otherwise agreed in the individual contract, P2BIM may not be used in a way that could cause significant damage to the customer, third parties or the environment. In particular, but not exclusively, the use of P2BIM is therefore prohibited, unless otherwise agreed in the individual contract, if the use
in connection with dangerous and/or endangered and/or safety-relevant buildings or facilities, in particular in the medical sector, including medical and laboratory technology, the military, armaments, the manufacture of weapons, nuclear power or aerospace
in connection with other high-risk activities or areas of operation. P2BIM is neither designed nor suitable for the activities and areas mentioned in sentence 3 above.
Any other use is not permitted without the prior written consent of POINTS2BIM.
9.
Customer input
All rights to the content data remain with the customer. However, the customer grants POINTS2BIM the non-exclusive, worldwide right to use the content data to provide the services to the customer. In particular, the customer grants POINTS2BIM the right to temporarily store, modify, process and transmit the content data and to sublicense the above rights to any subcontractors, insofar as this is necessary to provide the services agreed in the individual contract.
In addition, the customer grants POINTS2BIM the non-exclusive, worldwide right to permanently use the content data in anonymized form to further train the AI model and further develop the application.
When submitting his entries, the Customer shall also comply with his ancillary obligations pursuant to Section 15.
10.
Creation of BIM models (output)
POINTS2BIM does not claim any copyright to the BIM models created by the customer using P2BIM or the additional services of POINTS2BIM. To the extent that a copyright or copyright usage rights arise in favor of POINTS2BIM, POINTS2BIM waives them in full in favor of the customer.
With regard to the BIM models created automatically by P2BIM, it is important to note that these also require individual verification (see the note above in Section 5, Paragraph 2). If the customer does not wish to carry out the individual verification alone, he can also seek support from POINTS2BIM (see Section 11).
The customer grants POINTS2BIM the non-exclusive, worldwide right to permanently use the BIM models created automatically by P2BIM as well as those individually checked and improved by POINTS2BIM in an anonymized form for the further training of the AI model and the further development of the application.
11.
Other services
To the extent that POINTS2BIM provides other services for the customer (e.g. support in improving automatically created BIM models, consulting services and specific design services), the remaining provisions of these General Terms and Conditions apply, unless otherwise provided in the following paragraphs.
If the other services are subject to the law governing work contracts, the customer declares acceptance after a thorough examination of the service results. Acceptance must be declared if there are only minor defects. Any remaining defects will be recorded in the acceptance declaration and remedied by POINTS2BIM within the scope of POINTS2BIM’s liability for material and legal defects. At POINTS2BIM’s request, the customer must separately accept self-contained parts of the service. If the customer defaults on partial acceptance, POINTS2BIM is entitled to refuse further services, without prejudice to any other rights arising from the default.
Sections 5 (“Use of P2BIM”), 6 (“Availability”), 7 (“Maintenance work”) and 8 (“Rights of use for P2BIM”) do not apply.
12.
Remuneration, additional costs
The prices result from the individual contract together with any agreed contract amendments and additions.
In the absence of an express price agreement, the prices are based on the current price list applicable at the time of conclusion of the individual contract, which can be requested from POINTS2BIM at any time.
If the parties have agreed on daily rates or person-days as part of the remuneration based on expenditure, POINTS2BIM is obliged to provide a maximum of eight person-hours in one calendar day. If POINTS2BIM provides additional person-hours in one calendar day, these must be paid for on a pro rata basis, unless the exceedance of the time is contrary to the customer’s obvious wishes or their objective interests. If hourly rates are agreed, these are paid for every 15 minutes started.
The prices quoted are exclusive of any taxes, duties and customs duties that may be incurred in cross-border trade in goods and services, the incidental costs of monetary transactions and the applicable statutory value added tax.
Unless otherwise agreed, the customer shall bear all expenses such as travel and accommodation costs, expenses and third-party claims for payment arising in connection with the execution of the contract, upon presentation of proof. Travel times must be reimbursed.
If the parties have not reached an agreement on the remuneration for a service provided by POINTS2BIM, which the customer could only expect to be provided in return for remuneration, the customer must pay the usual remuneration for this service. In case of doubt, the remuneration rates demanded by POINTS2BIM for its services are deemed to be usual.
Costs resulting from subsequent changes to the service content initiated by the customer will be charged separately.
13.
Payment and default
Unless otherwise agreed, POINTS2BIM invoices are due immediately and must be paid without deductions within one week of receipt of the invoice to avoid default. In the case of a permissible partial delivery, this can be invoiced immediately. Invoicing can be done electronically. If payment in advance is agreed, POINTS2BIM will only provide the service after receipt of payment.
All payments are made in euros and, unless otherwise agreed in the individual contract, by transfer to an account specified by POINTS2BIM. A payment is only deemed to have been made when POINTS2BIM can dispose of the amount.
14.
Export controls and embargoes
The delivery or service serves exclusively the purposes specified in the individual contract. The customer guarantees that the delivery or service will not be used by the customer or its end customers in connection with any of the following technologies: armament technology, weapons, missiles that can carry weapons, and/or nuclear technology.
The customer also guarantees that the delivery or service will not be used by the customer or its end customers in violation of foreign trade restrictions. The customer will check the intended delivery or service for all possible foreign trade restrictions at the earliest possible time, if possible and reasonable before the order, and will inform POINTS2BIM immediately if there are any indications of possible foreign trade restrictions. The further details should be regulated in the individual contract.
POINTS2BIM may refuse to fulfil the obligations arising from the individual contract if fulfilment is prohibited or impaired by foreign trade restrictions (e.g. because no export licence is issued). POINTS2BIM will inform the customer immediately of such circumstances.
If POINTS2BIM refuses to deliver or provide the service due to a ban on provision and the customer disputes the existence of a ban on provision, the customer will, as far as possible and reasonable, request written confirmation from the competent authority that POINTS2BIM is not violating the foreign trade law applied by the authority by fulfilling its obligations under the individual contract. If such confirmation is not provided within a reasonable period of time, the parties will assume that a ban on provision exists. The parties will also assume that a ban on provision exists if applying for confirmation from the competent authority is impossible or unreasonable and there are objective indications that a ban on provision may be violated.
The customer’s claims for damages and reimbursement of expenses due to the aforementioned foreign trade restrictions are excluded, insofar as
the foreign trade restriction is not the responsibility of POINTS2BIM itself (e.g. because POINTS2BIM is no longer considered reliable by the export control authorities due to previous conduct that violated export control law) or
POINTS2BIM has not fraudulently deceived the customer about the existence of the foreign trade restriction.
POINTS2BIM is not liable for merely negligent ignorance of a foreign trade restriction. Section 20 (“Liability of POINTS2BIM”) applies to the scope and amount of liability for damages and reimbursement of wasted expenditure due to a foreign trade restriction for which POINTS2BIM is responsible.
Without prejudice to any other statutory or contractual information obligations, the customer shall immediately inform POINTS2BIM of all circumstances and provide all documents required under the foreign trade law of the country,
in which the customer is based,
in which the intended delivery or service as well as
by which the intended delivery or service is carried out,
are necessary or appropriate for the smooth fulfillment of POINTS2BIM’s obligations. This includes in particular information about the end customer, the country of destination and the intended purpose of the delivery or service.
15.
Customer’s secondary obligations
In order to ensure proper use, the customer is subject to conduct obligations, non-compliance with which may result in disadvantages, in particular termination of the individual contract and claims for damages.
The customer is particularly obliged not to use P2BIM in an abusive or immoral manner and to respect the law and the rights of third parties. This includes the following obligations:
Before any processing of content data, the customer ensures that the customer does not process any inadmissible content data.
Content data may only contain personal data to the extent that this is absolutely necessary to achieve the relevant processing purpose and anonymisation or pseudonymisation is excluded or unreasonable. If content data contains personal data, the customer will comply with all data protection requirements, in particular inform the data subject sufficiently about the data processing, obtain any necessary consent from the data subject and document and store compliance with the data protection requirements in a legally secure manner. The records must be destroyed as soon as they are no longer required. In addition, the customer is the “controller” of the content data within the meaning of the EU General Data Protection Regulation and is therefore responsible for compliance with all other obligations of the controller under the EU General Data Protection Regulation.
Before processing any content data, the customer will check whether the customer has the necessary rights to the work (e.g. texts, photographs, images, graphics) as well as to brand names, company names, logos and other trademarks and rights. In the case of photographs, further verification is required to determine whether the persons depicted have given the necessary consent; processing may not take place without this consent. The customer grants POINTS2BIM the rights of use required for the proper provision of services by POINTS2BIM.
Excessive strain on POINTS2BIM systems through improper use is prohibited.
The customer must compensate POINTS2BIM for any damage resulting from a breach of an obligation under paragraph 2, unless the customer is not responsible for this. The customer indemnifies POINTS2BIM against all disadvantages that POINTS2BIM incurs as a result of claims by third parties due to damaging actions by the customer for which the customer is responsible. POINTS2BIM is entitled to demand payment of a reasonable advance on any legal defense and/or legal advice costs.
16.
Blocking
POINTS2BIM may temporarily block the customer’s access for important reasons and/or interrupt the connection of the resources made available to the customer by POINTS2BIM to the Internet. An important reason for blocking or interrupting access exists in particular if
the customer violates one of the obligations set out in Section 15 (“Customer’s secondary obligations”), paragraph 2,
POINTS2BIM is informed by third parties that the customer is providing or distributing unlawful content data, unless the allegation of infringement is obviously incorrect, or
the customer is in default with the payment of the remuneration or a significant part of the remuneration.
In the cases of sentence 2 letters a) and b), POINTS2BIM may temporarily block or permanently delete the affected content data instead of interrupting it. The obligation to continue paying the fee remains unaffected unless the customer is not responsible for the important reason for the blocking, interruption or deletion.
Blocking access, interrupting the connection and blocking and deleting content data are only permitted after the expiry of a deadline set for remedy or after a warning has been issued without success. Setting a deadline for remedy and issuing a warning are not necessary in the event of a final refusal to provide service or if other special circumstances exist which, after weighing up the interests of both parties, justify the action in question.
Further claims and rights of POINTS2BIM, in particular the right to termination and compensation, remain unaffected.
Set-off, retention and assignment
The customer is only entitled to offset and withhold if the counterclaims due have been legally established, are undisputed or are ready for decision. However, the customer is also entitled to offset without the further requirements of sentence 1 if he wants to offset a claim against a claim of POINTS2BIM, which is also a reciprocal claim of the customer (e.g. offsetting a claim for damages due to non-performance or delay against the claim for payment of the remuneration owed).
Except in the area of Section 354a of the German Commercial Code (HGB), the customer may only assign his claims against POINTS2BIM to third parties with the prior written consent of POINTS2BIM, unless POINTS2BIM has no legitimate interest in the prohibition of assignment.
17.
Material defects
The delivery or service has the agreed quality, is suitable for the contractually stipulated or otherwise usual use and has the quality customary for deliveries or services of this type.
Claims for material defects are particularly excluded in the case of
Contractual relationships for which the law does not provide for claims for material defects, such as employment contracts;
Deliveries and services from POINTS2BIM for which the customer does not owe any consideration;
only insignificant deviations from the agreed quality and only insignificant impairment of usability;
Impairments resulting from use outside the agreed environmental conditions, incorrect operation, modifications contrary to the contract or an item provided or assistance provided by the customer, insofar as POINTS2BIM is not responsible for this;
Defects which were unknown to the customer at the time of conclusion of the contract due to gross negligence;
a delivery or service in an area outside the Federal Republic of Germany and in the event that the delivery or service is to be resold or used in an area outside the Federal Republic of Germany as intended, insofar as the delivery or service in the area in question violates technical standards, statutory or other sovereign provisions that POINTS2BIM neither knew nor should have known about; POINTS2BIM is not obliged to check the peculiarities of foreign law.
All other statutory or contractual exclusions of claims for defects remain unaffected.
The customer will support POINTS2BIM in the error analysis and defect removal by describing any problems that arise in detail and providing POINTS2BIM with comprehensive information. The customer must grant POINTS2BIM the time and opportunity required to investigate the alleged defect and to remove the defect.
The defect will be remedied at POINTS2BIM’s discretion by remedying the defect on site or in the business premises of POINTS2BIM or by delivering an item that does not have the defect. At least three attempts to remedy a defect must be made. If the defect can be remedied by means of remote maintenance and is reasonable for the customer, POINTS2BIM can remedy the defect by remote maintenance; in this case, the customer must ensure the necessary technical requirements at their own expense and grant POINTS2BIM appropriate electronic access after appropriate prior notification.
The defect can also be remedied temporarily until the defect is finally remedied, which must be carried out within a reasonable period of time, by POINTS2BIM showing ways of avoiding the effects of the defect in the sense of a workaround, insofar as and for as long as this is reasonable for the customer.
If the item is located at a location other than the place of intended use, the customer must bear the additional costs resulting from the inspection of the defect and the rectification of the defect.
If a defect reported by the customer cannot be identified or POINTS2BIM is not responsible for the impairment, in particular in accordance with paragraph 2 sentence 1 letter d), the customer shall bear the costs of POINTS2BIM according to the agreed or usual prices, unless the lack of defect was not apparent to the customer.
In the case of the provision of an item or other temporary use, the customer cannot reduce the current remuneration in the event of defects. Any existing right to reclaim remuneration paid with reservation remains unaffected. A claim for damages or reimbursement of wasted expenditure due to a defect that already exists when the contract is concluded only exists if POINTS2BIM is responsible for the defect; liability for initial defects according to Section 536a Paragraph 1 of the German Civil Code, if applicable in conjunction with Section 548a of the German Civil Code, is excluded.
The exclusions and restrictions of the customer’s rights under this Section 18 do not apply if POINTS2BIM has acted fraudulently or has provided a guarantee for the quality of the item.
Section 20 (“Liability of POINTS2BIM”) applies to the scope and amount of liability for damages and reimbursement of wasted expenditure due to a material defect for which POINTS2BIM is responsible.
Legal defects
POINTS2BIM guarantees, subject to a different agreement in the individual contract, that the delivery or service in the European Economic Area and Switzerland does not conflict with any third-party rights. POINTS2BIM is only obliged to check for conflicting industrial property rights or other intellectual property of third parties for the area mentioned in sentence 1.
In the case of a delivery or service in an area outside the area mentioned in paragraph 1 sentence 1 and in the case that the delivery or service is intended to be resold or used in an area outside the area mentioned in paragraph 1 sentence 1, a legal defect due to a conflicting industrial property right or other intellectual property of third parties only exists if POINTS2BIM knew or should have known about this when the contract was concluded. The customer will therefore carry out the necessary property rights research themselves before delivery or use abroad.
In the event of legal defects, POINTS2BIM guarantees that, at POINTS2BIM’s discretion,
POINTS2BIM will modify or replace the delivery or service in such a way that the legal defect is eliminated and this does not lead to any reduction in quality, quantity or value and is also otherwise reasonable for the customer, or
provides the customer with the right of use by concluding a license agreement.
The customer shall inform POINTS2BIM immediately in writing if third parties assert protective rights (e.g. copyright, trademark or patent rights) to the delivery or service. The customer authorizes POINTS2BIM to conduct the dispute with the third party alone. If POINTS2BIM makes use of this authorization, the customer may not acknowledge the third party’s claims on its own initiative without the consent of POINTS2BIM. POINTS2BIM will then defend the third party’s claims. If the customer is responsible for the assertion of the infringement of protective rights (e.g. as a result of use contrary to the contract or failure to research protective rights by the customer), the customer shall indemnify POINTS2BIM from all reasonable costs associated with the defense of these claims and reimburse POINTS2BIM for all damages and expenses in excess of this; in this case, POINTS2BIM is entitled to payment of a reasonable advance.
Section 20 (“Liability of POINTS2BIM”) applies to the scope and amount of liability for damages and compensation for wasted expenses due to a legal defect for which POINTS2BIM is responsible.
Section 18 paragraph 2 sentence 1 lit. a), b), d) and e), sentence 2 and paragraphs 8 and 9 apply accordingly.
Liability of POINTS2BIM
POINTS2BIM’s liability for damages, regardless of the legal basis (e.g. due to impossibility, delay, defective or incorrect delivery or service, breach of contract and tort), is limited in accordance with this Section 20 (“Liability of POINTS2BIM”) if the liability presupposes fault on the part of POINTS2BIM.
POINTS2BIM’s liability for simple negligence is excluded unless there is a breach of an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the customer could rely and the non-fulfillment of which endangers the achievement of the purpose of the contract (so-called “cardinal obligation”). In the event of a breach of such an essential contractual obligation, POINTS2BIM’s liability for simple negligence is limited to damages that were foreseeable at the time the contract was concluded and were typical for the contract. In the case of simple negligence, however, POINTS2BIM’s liability is limited to the liability limits agreed in the individual contract.
In the case of gross negligence, POINTS2BIM’s liability is limited to damages that were foreseeable and typical for the contract at the time the contract was concluded.
The above exclusions and limitations of liability in paragraphs 2 and 3 apply, also retroactively, to the same extent to claims arising from the breach of obligations during contract negotiations.
To the extent that POINTS2BIM is not itself obliged to carry out data backup measures, the damages that were foreseeable and typical for the contract in the event of data loss at the time the contract was concluded correspond to the typical recovery costs. The typical recovery costs are based on the damage that would have occurred if the customer had taken reasonable security measures based on the care of a prudent businessman.
To the extent that POINTS2BIM’s breach of duty concerns deliveries and services that POINTS2BIM provides to the customer free of charge (e.g. as part of a gift, loan or free business management as well as for pure favors), liability for negligence is completely excluded. To the extent that POINTS2BIM provides technical information or advice after the conclusion of the contract and this information or advice is not part of the contractually agreed scope of services owed by POINTS2BIM, this is done free of charge and with the exclusion of any liability for negligently incorrect information or advice.
The exclusions and limitations of liability in this Section 20 (“Liability of POINTS2BIM”) apply accordingly to claims for reimbursement of wasted expenses and to claims for exemption.
The exclusions and limitations of liability in this Section 20 (“Liability of POINTS2BIM”) apply to the same extent to the bodies, legal representatives, employees and other vicarious agents of POINTS2BIM.
The liability exclusions and limitations of this Section 20 (“Liability of POINTS2BIM”) do not apply to the liability of POINTS2BIM for intentional conduct, for injury to life, body or health, in cases of fraud, when assuming a guarantee or for claims under the Product Liability Act.
Limitation period for the customer’s claims
The limitation period for the customer’s claims against POINTS2BIM is
for claims arising from material or legal defects for repayment of the remuneration from withdrawal or reduction, one year from the submission of the effective declaration of withdrawal or reduction; the withdrawal or reduction is only effective if it is declared within the period of letter b) for material defects or the period of letter c) for legal defects;
for claims arising from material defects which do not relate to the repayment of the remuneration from withdrawal or reduction, one year;
for claims arising from defects of title which do not involve the repayment of the remuneration due to withdrawal or reduction, two years; if the defect of title is an exclusive right of a third party on the basis of which the third party can demand the return or destruction of the items provided to the customer, the statutory limitation period applies;
for claims for repayment of the remuneration, compensation or reimbursement of wasted expenditure which are not based on material or legal defects, two years.
Subject to a different individual contractual arrangement, the limitation period begins in the cases of paragraph 1 lit. b) and c) in accordance with the statutory provisions, in particular the applicable liability for defects law, in the case of paragraph 1 lit. d) from the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence. The subsequent delivery or repair does not lead to the start of a new limitation period or an extension of the limitation period, unless POINTS2BIM has exceptionally declared an acknowledgement within the meaning of Section 212 Paragraph 1 No. 1 of the German Civil Code. The limitation period begins at the latest upon expiry of the maximum periods specified in Section 199 of the German Civil Code.
Deviating from the above, the statutory limitation provisions apply
in the cases specified in Section 20 Paragraph 9,
in the event of gross negligence in the case of claims for damages, reimbursement of wasted expenses and claims for exemption,
in the case of claims due to a defect in the cases of Section 438 Paragraph 1 No. 2 BGB and Section 634a Paragraph 1 No. 2 BGB,
in the case of claims for reimbursement of expenses after termination of a rental agreement, as well as
for all claims other than those mentioned in Paragraph 1.
18.
Confidentiality and data protection
The customer undertakes to treat the content of the individual contracts concluded on the basis of these terms and conditions as well as all information and knowledge obtained in connection with the contract negotiations and implementation as confidential and not to disclose them to any third party, insofar as they are clearly confidential at the express request of POINTS2BIM and/or according to the circumstances of the individual case, unless this should be necessary for the implementation of the contract or the disclosure is required by law or has been bindingly ordered by a court or authority. The customer will inform POINTS2BIM in advance of the forced disclosure, insofar as this is legal, and limit the disclosure to the necessary extent. Further statutory obligations to confidentiality remain unaffected.
The customer will observe the currently applicable data protection regulations. This also includes technical security measures adapted to the current state of the art (Art. 32 GDPR) and the obligation of employees to maintain the confidentiality of personal data (Art. 28 Para. 3 lit. b) GDPR). If there is order processing (Art. 28 GDPR) or joint responsibility (Art. 26 GDPR), the customer is obliged at any time, at the request of POINTS2BIM, to conclude a data protection agreement that is customary in business and complies with the statutory minimum requirements.
The obligations to confidentiality according to paragraph 1 and to compliance with data protection obligations according to paragraph 2 are valid for an unlimited period.
Reference naming
POINTS2BIM is entitled to list the customer’s company and logo as well as a short description of the project in reference lists and to publish and distribute these on the Internet, in print media, at presentations or otherwise for factual information. Any other use is not permitted unless otherwise provided.
Notifications and declarations
Unless otherwise provided in these General Terms and Conditions, the text form in accordance with Section 126b of the German Civil Code (e.g. email) is sufficient, but also necessary, for declarations and notifications to be effective. In contrast, declarations for which these General Terms and Conditions or the law expressly prescribe this must be in writing (Section 126 of the German Civil Code), whereby telecommunication transmission is sufficient to meet the deadline if the recipient receives the original written declaration promptly.
Unless there is evidence to the contrary, an email is deemed to have come from the other party if the email contains the name and email address of the sender and a reproduction of the sender’s name at the end of the message.
19.
Transfer of rights and obligations
POINTS2BIM can transfer all rights and obligations arising from these General Terms and Conditions and the individual contracts concluded on their basis to third parties at any time. The customer can object to the transfer within one month if the transfer affects the legitimate interests of the customer, e.g. because the acquiring company is a direct competitor of the customer, does not offer the necessary knowledge and qualifications or there are reasonable doubts about its economic performance.
20.
Final provisions
These General Terms and Conditions and all individual contracts concluded with their inclusion are subject exclusively to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded; mandatory provisions of the UN Convention on Contracts for the International Sale of Goods (in particular Art. 12, Art. 28 and Art. 89 ff. CISG) remain unaffected.
If the customer is a merchant, a legal entity under public law or a special fund under public law or if the customer has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes in connection with the individual contracts concluded with the inclusion of these General Terms and Conditions is the registered office of POINTS2BIM. Any other statutory place of jurisdiction also applies to lawsuits brought by POINTS2BIM against the customer. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by the above provisions.
The jurisdiction agreements pursuant to paragraph 2 are governed exclusively by the law of the Federal Republic of Germany.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance is the registered office of POINTS2BIM, unless otherwise stated in the above regulations or the individual contract.
A lawsuit may only be filed if the parties have attempted to reach an out-of-court settlement. The parties should agree on a neutral third party as an arbitrator. The statute of limitations for all claims arising from the disputed facts is suspended from the initiation of the settlement attempt by one party until the end of the arbitration. Section 203 of the German Civil Code applies accordingly. Emergency judicial proceedings or the filing of a lawsuit to interrupt a statutory limitation period that cannot be extended by agreement between the parties remain permissible at all times.
To the extent that the individual contract concluded with the customer on the basis of these General Terms and Conditions contains regulatory gaps, the legally effective provisions that the parties would have agreed upon in accordance with the economic objectives of the individual contract if they had known about the regulatory gap shall be deemed to have been agreed upon to fill these gaps.