Subject and Scope
1.1. These General Terms and Conditions (“GTC”) become part of all contractual relationships concluded between Bauhow Consulting GmbH, Dammstr. 34, 47119 Duisburg (“Bauhow”) and commercial customers of Bauhow (“Customers”).
1.2. These GTC apply to all services provided by Bauhow as well as to the licensing of Bauhow software solutions (“Contract Software”) and their provision over the internet as a cloud application.
1.3. The use of the contract software and the services offered through the contract software is governed solely by these GTC. General terms and conditions of the customer do not apply.
1.4. These GTC do not apply to contracts with consumers within the meaning of § 13 BGB.
Conclusion of Contract and Contractual Basis
2.1. Contracts with Bauhow are concluded through an offer from Bauhow and the unconditional acceptance by the customer. Offers from Bauhow are non-binding and can be revoked by Bauhow at any time until the customer's acceptance.
2.2. Unless explicitly agreed otherwise, the delivery or service item only needs to have the contractually assured properties; these only represent guarantees if Bauhow explicitly states that it wants to be liable for them regardless of fault or if they are expressly designated as such by Bauhow; guarantee declarations must be made in writing to be effective.
2.3. Quality requirements or other service requirements (e.g., IT security requirements, compliance requirements, programming requirements, documentation requirements) become part of the contract only if they are explicitly included at the conclusion of the contract and are unconditionally confirmed by Bauhow.
Contract Software
3.1. The contract software specified in the offer is a software solution that enables the creation of real estate analyses, highlights renovation potentials, and simplifies access to energy consulting services. In addition, the contract software offers support modules and application routes for easy data collection for energy consulting services. The specific scope of services and functionalities of the contract software is detailed in the respective offer.
3.2. The contract software is designed for use by customers as a white-label solution for their clients (“End Customers”) and is to be marketed under the customer's name (“White Label Solutions”).
Usage Rights
4.1. Bauhow grants the customer a simple (non-exclusive) right to use the contract software as intended as a cloud application during the term of this contract. The customer particularly has the right to allow End Customers to use the contract software in accordance with the provisions of these GTC and to unlock corresponding accesses as necessary, as well as to grant usage rights to the same extent as they are entitled to.
4.2. Bauhow reserves the right to continuously develop the contract software and to expand, adjust, or restrict its functionalities as necessary.
4.3. The creation of individual adaptations or configurations of the contract software (“Customizings”) must be agreed contractually. Without a contractual agreement, there is no entitlement to the creation of Customizings. To the extent that Bauhow carries out Customizings for the customer, the usage rights granted under these GTC also apply to Customizings.
4.4. The use of the contract software is limited to employees of the customer and the End Customers who are authorized to use the contract software as part of their activities. Deviating usage rights arrangements can be individually agreed upon.
4.5. Without prejudice to the usage rights granted under these GTC, Bauhow retains all rights to the contract software.
Provision of Contract Software and Maintenance Services
5.1. The provision of the contract software is carried out as a cloud application. Bauhow provides the customer (and the End Customers) with the contract software in its current version, as well as the associated storage space for use over the internet, and carries out necessary maintenance work.
5.2. Bauhow does not provide the contract software as a high-availability solution and is therefore not responsible for uninterrupted availability of the contract software. However, Bauhow will take reasonable measures to achieve an availability of about 98% on a monthly average. Availability is defined as the customer's ability to use the contract software's required functionalities without restriction. Outages due to maintenance work are not considered a restriction of availability.
5.3. Maintenance services are included in the fee for the provision of the contract software. Maintenance services include regular checks of the contract software to ensure its contractual functionality and security, including bug fixes and the provision of updates, patches, or releases. Bauhow will consider the legitimate interests of the customer and inform them in a timely manner about necessary maintenance work. Bauhow will generally perform maintenance work outside of core business hours (weekdays from 9:00 AM to 5:30 PM).
5.4. Improvements, innovations, and expansions, or new content-related functions (“Upgrades”) of the contract software are not covered by the contractually owed maintenance services. The provision of upgrades is subject to separate compensation based on a separate agreement.
5.5. Bauhow will take reasonable technical measures to protect the contract software to avoid unauthorized access by third parties. To this end, Bauhow will particularly use a transport encryption corresponding to the current state of the art.
Support
6.1. Bauhow will provide support services during the term of the contract. These include technical support via email and phone. Support is available on weekdays from 9:00 AM to 1:00 PM. Bauhow will respond to all support requests within 24 hours of receiving the request during the aforementioned support hours.
6.2. In the event of errors or defects in the contract software, Bauhow will inform the customer about the nature of the error and a possible timeframe for rectification within 48 hours from the error report during the above-mentioned support hours. Bauhow also commits to making reasonable efforts to keep downtime and resolution time as low as possible. Errors will be categorized according to their severity, and Bauhow will prioritize the resolution of serious errors.
6.3. If reported errors are caused by improper or contractually non-compliant use of the contract software by the customer or its End Customers, the customer shall pay for the costs incurred for error rectification at market rates.
6.4. Bauhow will provide general consulting services (e.g., user training) as agreed and for separate compensation.
6.5. The customer is invited to provide feedback on the contract software and support and maintenance services. Bauhow will take this feedback into account to continuously improve the quality of its services. The customer grants Bauhow the free, unlimited right in time, space, and content to use the feedback for the improvement of the contract software or other services by Bauhow.
Brokerage of Services
7.1. Bauhow will offer additional services to the End Customers through the contract software in its own name and for its own account. These services include various aspects of energy consulting, energy-efficient renovation, and accompanying technical support. Bauhow and the customer will agree in advance on which services Bauhow is to offer through the contract software.
7.2. The customer will receive the contractually agreed brokerage commission for the services brokered through the contract software.
7.3. If the services require qualification as an energy efficiency expert, these will be carried out by employed or subcontracted energy consultants with appropriate qualifications and independence. The certified person will present themselves externally, particularly towards funding institutions, as the responsible energy efficiency expert.
Obligations of the Customer
8.1. The customer undertakes as a material contractual obligation to ensure that all required cooperation and supply services are provided in the necessary quality and at the agreed or necessary deadlines for project realization without additional costs for Bauhow. As far as necessary for the success of the services, the customer will provide its own personnel in sufficient numbers and competent points of contact.
8.2. The customer will take reasonable technical and organizational measures to prevent unauthorized access by third parties to the contract software.
8.3. If the customer provides the contract software to End Customers for use, the customer is solely responsible for fulfilling data protection information obligations and will provide the End Customers with corresponding data protection notices in a timely manner. Bauhow will provide the necessary information upon request.
Prohibited Use of the Contract Software
The customer ensures that the following usage prohibitions are observed during the use of the contract software by the customer themselves or by End Customers:
9.1. The contract software may not be used for purposes other than those defined in the service description.
9.2. The contract software may not be modified, decompiled, reverse-engineered, or disassembled. Furthermore, there may not be any attempts to extract the source code of the contract software in any other way.
9.3. No content may be stored or distributed in the contract software that violates applicable laws, governmental orders, or the rights of third parties (e.g., copyright, industrial property rights, personal rights) or contains offensive, racist, defamatory, or slanderous content.
9.4. During the use of the contract software, there must not be any violations of competition law, particularly no unfair or harassing advertising disseminated.
9.5. No content (files) containing viruses or other malware may be stored in the contract software.
9.6. No copyright notices, rights reservations, or other disclaimers may be altered or removed.
Liability of Bauhow
10.1. Bauhow does not conduct any substantive or technical examination of the data entered by the customer or End Customers in the contract software. Bauhow is particularly not responsible for the accuracy or completeness of the data entered by the customer or End Customers.
10.2. Bauhow assumes no responsibility for the accuracy, currentness, and completeness of data obtained from public sources (e.g., property data).
10.3. Bauhow is otherwise not responsible for any infringing content stored or disseminated by the customer or End Customers in the contract software.
Customer Data
11.1. Bauhow is entitled to use data that the customer or their End Customers enter or generate while using the contract software (“Customer Data”) in anonymized form for statistical evaluations, product development, or optimization of its services. In particular, Bauhow is entitled to use the building data contained in the customer data, which is entered by End Customers (e.g., a customer corrects / overwrites the year of construction proposed by the contract software based on public data) (“Building Data”) to validate and improve its models.
11.2. As far as the contents stored by the customer in the contract software are protected by copyright or otherwise legally protected, the customer grants Bauhow the right to use them for the contractual or intended provision of the contract software, in particular to make them accessible via the internet, to reproduce, and to distribute.
Data Protection
12.1. Bauhow will comply with the legal provisions on the protection of personal data of the customer or End Customers, in particular those of the GDPR and the BDSG. Bauhow confirms that its employees and other agents have been contractually obligated to maintain confidentiality regarding personal data and have been familiarized with data protection regulations (especially those of the BDSG and GDPR).
12.2. Bauhow and its employees or agents are prohibited from processing personal data obtained in the context of the contract for any purpose other than the respective task-related purpose; Bauhow is not permitted to disclose or make such data accessible to third parties unless necessary for contract fulfillment.
12.3. The customer is responsible for processing personal data of the End Customers in connection with the provision of the contract software from a data protection perspective. Bauhow will act as a processor on behalf of the customer regarding the provision of the contract software from a data protection perspective. In this context, the agreement on data processing attached as an annex to these GTC pursuant to Art. 28 GDPR applies. In the case of contradictions between the data processing agreement and these GTC, the provisions of the data processing agreement take precedence.
12.4. To the extent that services are brokered to Bauhow via the contract software, Bauhow processes personal data of the respective End Customers from a data protection perspective on its own responsibility. The attached data processing agreement is not applicable to data processing in connection with the provision of services to End Customers.
Open Source Software
13.1. To the extent the contract software contains Open Source Software and this is necessary according to the respective usage and licensing conditions of the Open Source Software, Bauhow will provide the customer with the source code and the respective license conditions.
13.2. The usage rights granted under these GTC do not apply to Open Source components of the contract software where this is not permitted according to the respective usage and licensing conditions of the Open Source Software.
Use of Artificial Intelligence
14.1. Bauhow reserves the right to use systems with Artificial Intelligence (“AI Systems”) in the context of service provision.
14.2. To the extent that deliveries or services from Bauhow include AI Systems subject to the EU AI Regulation or other AI regulations, Bauhow will offer necessary support services to implement the legal requirements (e.g., documentation obligations, risk assessments) for a separate fee.
Confidentiality
15.1. The parties are obligated to treat all confidential information and trade secrets obtained in the course of the respective contract confidentially, particularly not to disclose them to third parties or exploit them for purposes other than contractual ones. Confidential information is information that a reasonable third party would consider worthy of protection or that is marked as confidential.
15.2. The parties will take reasonable technical and organizational precautions to prevent third-party access to confidential information.
15.3. Disclosure of confidential information to End Customers is permissible as far as this is necessary for the provision of contractual services.
15.4. The parties agree to establish a provision with all employees and subcontractors that matches the content of the preceding paragraph.
15.5. Bauhow may advertise the customer relationship to the customer, i.e., in particular publicly name the customer, use the customer logo on the Bauhow website and in social media, and create a case study showing the advantages for the customer through cooperation with Bauhow. The case study is public and accessible to third parties. The content will be approved by the customer before publication.
License Fees and Payment Terms
16.1. The customer commits to pay license fees for the use and provision of the contract software. Details regarding the calculation of the license fee and payment modalities are specified in the respective offer.
16.2. All prices specified in the respective offers are exclusive of the applicable value-added tax. The customer is responsible for the payment of any additional taxes or levies that may arise.
16.3. To respond to cost increases, Bauhow reserves the right to increase the license fees and the remuneration for services by up to 10% once per contract year starting from the second contract year. Bauhow will inform the customer in writing of the price increase one month prior to the respective contract year-end. The amount of the adjustment will be based on the producer price index for IT services (DL-IT) of the Federal Statistical Office and will take into account any compensation for costs in other areas. If the customer objects within 14 days of the change date, Bauhow has the right to extraordinary termination of the contract at the change date. If the customer does not object within the deadline, the change will be effective against them.
Warranty
17.1. Bauhow points out to the customer that it is not possible, with reasonable effort, to keep software products completely free of errors given the current state of technology. However, Bauhow will ensure that the contract software is free from defects that significantly impair its suitability for contractual or intended use. The customer must immediately notify Bauhow of the nature and occurrence of any defects.
17.2. Bauhow warrants that the contract software does not violate third-party rights. The customer shall immediately inform Bauhow of any claims made by third parties arising from the contractual use of the contract software against it. Bauhow is entitled, but not obligated, to defend against the asserted claims at its own expense.
17.3. If the contract software infringes third-party rights and this constitutes a legal defect, Bauhow will, at its own option and at its own expense (a) grant the customer a corresponding usage right or (b) redesign the contract software so that it does not infringe rights. If Bauhow cannot provide a remedy, Bauhow has the right to terminate the contract extraordinarily. Bauhow will reasonably consider the customer's interests when choosing the remedial measures.
17.4. Warranty claims are excluded for defects due to non-contractual or non-intended use of the contract software.
17.5. Warranty claims expire after 12 months.
17.6. Bauhow is not liable irrespective of fault for initial defects; Section 536a para. 1 Alt. 1 BGB does not apply. Otherwise, the liability limitations of these GTC apply.
Liability
18.1. If Bauhow is liable for damage caused by slight negligence under statutory provisions, Bauhow's liability is limited: In this case, liability exists only in the event of violation of essential contractual obligations; these are obligations whose fulfillment enables the proper performance of the contract and on which the customer regularly relies and may rely. Liability is also limited to the typically foreseeable damage at the time of contract conclusion, but at most to the amount of the fee due for the respective contract year.
18.2. Regardless of Bauhow's fault, any liability in the event of fraudulent concealment of a defect, from taking on a guarantee or procurement risk remains unaffected under the Product Liability Act.
18.3. To the extent that, according to the preceding provisions, Bauhow's liability for damages is excluded or limited, this also extends to the personal liability of the organs, employees, and other agents, representatives, and subcontractors and also applies to statutory liability from tort.
18.4. The liability limitations of this clause do not apply in the case of intent and gross negligence as well as the violation of life, body, or health.
18.5. The customer is solely responsible for the accuracy and completeness of the data entered into the provided contract software. Bauhow is not liable for errors, losses, or damages resulting from inaccurate, incomplete, or misleading information.
Term and Termination
19.1. The term of the contract is determined by the respective offer. The contract is extended by the agreed contractual term unless it has been properly terminated by either party with a notice period of 14 days prior to the end of the contract term.
19.2. The right to extraordinary termination for good cause remains unaffected. Termination declarations must be in writing to be effective.
Obligations Regarding Contract Termination
20.1. The termination of the contract does not release the parties from their obligations that arose during the term of the contract, including obligations regarding confidentiality and data protection.
20.2 In the event of a proper termination of the contract or a justified extraordinary termination by Bauhow, the customer is obliged to immediately cease the use of the contract software and delete or return all copies of the contract software (if any) to Bauhow. Already paid license fees will be refunded on a pro-rata basis.
Set-off and Retention Rights
21.1. The customer may only offset claims from Bauhow with undisputed or legally established claims.
21.2. The customer may only assert a right of refusal or retention based on undisputed or legally established claims. Assignment
22.1 The customer may only assign its rights under contracts with Bauhow to third parties with prior consent from Bauhow. § 354a HGB remains unaffected.
Final Provisions
23.1. Bauhow may make reasonable changes to these GTC for the customer. Changes to these GTC become part of the contract if the changes have been communicated to the customer by email, the customer does not object within four weeks of receiving the notification, and Bauhow has explicitly pointed out this consequence in the change notification. If the customer objects to the changes in a timely manner, the changes will not take effect against the customer. In this case, Bauhow has the right to terminate the contractual relationship with a notice period of one month if a continuation of the contract without the changes is impossible or unreasonable for Bauhow. Other modification options are not restricted by this provision.
23.2. Should individual provisions of this contract be wholly or partially ineffective, or if there is a gap in this contract, the remainder of the provisions shall remain effective.
23.3. This contract is governed by the law of the Federal Republic of Germany, excluding conflict of laws. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply. The place of performance and exclusive jurisdiction for all legal disputes arising from the contract shall be the registered office of Bauhow.
Bauhow Consulting GmbH – Stand July 2024
