(Hereinafter “Terms and Conditions” or “GTC”)
(Hereinafter “Terms and Conditions” or “GTC”)
PlanRadar GmbH, company register no. 400573d, Company Court Vienna, Seilerstätte 22/3, 1010 Vienna, (hereafter „PlanRadar“) develops, distributes and manages software in the field of construction documentation and defect management.
These terms and conditions govern the rights and obligations between PlanRadar and the Customers of PlanRadar. Customers of PlanRadar are entrepreneurs within the meaning of § 1 Para 2 of the Austrian Consumer Protection Act.
2.1 These Terms and Conditions govern the business relationship between PlanRadar and Customers of PlanRadar, whether services are paid for or not paid for (such as free trials). PlanRadar provides its services on the basis of these Terms and Conditions. The fact that a Customer uses the services of PlanRadar means that these Terms and Conditions apply for such a business relationship.
2.2 In addition to these Terms and Conditions, the current price lists of PlanRadar (available at www.planradar.com) shall apply, as well as individually negotiated written contract terms.
2.3 If the Customer themselves has terms and conditions, the customer confirms that, by using the services of PlanRadar, only these objective Terms and Conditions shall be in force between the customer and PlanRadar. Customer terms and conditions that diverge from those of PlanRadar only come into force if PlanRadar has expressly agreed in writing that these are valid.
2.4 Individual agreements are to be made in writing (with a signature). Informal declarations by PlanRadar (including by e-mail) are non-binding.
2.5 PlanRadar is entitled to change these terms and conditions unilaterally. The change will be communicated to the Customer by e-mail two months prior to their entry into force. The Customer is entitled to object to the change in writing within four weeks after receiving the respective notification by e-mail. The amendment shall be deemed accepted and binding if the Customer has consented to the change or has not objected to the change within the four- week period. In the notification e-mail, PlanRadar shall separately draw attention to the legal consequences and the opportunity for non-agreement.
3.1 PlanRadar provides the Customer with a system, consisting of several modules (if applicable), for construction documentation and defect management (hereinafter referred as the “Product”). The Customer benefits from ongoing product development and, in return, acknowledges that temporary maintenance time can be required for updates and upgrades.
3.2 PlanRadar reserves the right to discontinue the product and all specifications of the product due to technical or operational reasons. PlanRadar will at least notify the Customer by e-mail and at least two months before such a discontinuation.
3.3 PlanRadar is only liable for the services provided by PlanRadar itself. If the Customer calls in a third party – for whatever reason – (in any case such assistance requires the written consent of PlanRadar in advance), the Customer has no claim against PlanRadar and PlanRadar is indemnified and held harmless by the Customer.
4.1 The Customer undertakes not to use technical equipment, software or other data that could lead to the PlanRadar system being damaged. The Customer is not entitled to make changes to the product.
4.2 The Customer shall ensure that his employees and third parties attributable to the Customer will treat the product provided by PlanRadar with due care. The Customer is liable to PlanRadar for any wilful or negligent damage caused by the Customer, his agents and companies.
4.3 The Customer undertakes not to misuse products of PlanRadar, not to provide the products to third parties and not to sell or otherwise trade using them.
4.4 The Customer shall treat the products of PlanRadar carefully and keep them in such a way that third parties do not have access to the products. The Customer is liable to PlanRadar for all damages for breach of duty.
4.5 If the Customer’s PlanRadar products are locked due to an unavoidable incident, the Customer is also liable to PlanRadar for the costs incurred as part of this, as well as costs arising from the contract.
4.6 The Customer agrees to be quoted by PlanRadar as part of external publications and testimonials. PlanRadar will negotiate with the Customer concerning the use of Customer logos, project data, etc. before any publication.
5.1 The Customer undertakes to use the product provided by PlanRadar only in accordance with these Terms and Conditions and not to use the service provided or memory space for storage or dissemination of illegal content in particular.
5.2 The Customer commits to PlanRadar to assume sole responsibility for compliance with legislation. The Customer further undertakes not to resort to the contractual services in any way or to let third parties use them, leading to third party damage or security or operational risks for PlanRadar. The Customer undertakes, upon first request, to fully indemnify PlanRadar and hold them harmless from all third party claims resulting from a breach of this obligation.
6.1 PlanRadar provides the Customer with the product. PlanRadar is not liable for impairment to services or any resulting direct or indirect damage on the part of the Customer. In particular, impairment to services may occur due to communication errors (whether they are within the sphere of PlanRadar or not) or necessary maintenance by PlanRadar.
6.2 The Customer agrees to assist PlanRadar free of charge for rectifying any faults. The Customer will notify PlanRadar about defects immediately so that remedial can be carried out as soon as possible.
6.3 The Customer undertakes to take all necessary measures to ensure that no adverse effects occur relating to the performance PlanRadar’s services.
6.4 PlanRadar cannot guarantee that there will be no loss of data or other damage caused, in particular, due to damages in the context of the Customer’s internet connection during synchronisation. PlanRadar is not liable for the aforementioned, regardless of any possible negligence by PlanRadar or one of their subcontractors.
7.1 PlanRadar accepts no responsibility or liability in the event of failure of the product, irrespective of the cause of the failure.
7.2 PlanRadar is only liable for intentional and gross negligence and slight negligence in the case of personal injury.
7.3 PlanRadar is not liable for damages to Customer end devices, third party damages or consequential damages such as loss of earnings or loss of profit. Specifically excluded is a Customer warranty and liability for damages due to delayed projects resulting from the non-performance or poor performance of PlanRadar products. There is also no liability by PlanRadar for lost savings, lost data, indirect or consequential damages or damages resulting from claims by third parties. If liability cannot be excluded by law, the liability for any event causing damage is limited to EUR 5,000, the aggregated liability (total of all events causing damage) to EUR 10,000. If the actual damage is higher than EUR 10,000, claims by individual injured parties are to be reduced proportionately.
7.4 PlanRadar is not liable for damage or defects occurred in connection with changing the software, changing the necessary system settings or application errors.
7.5 In relation to obligations due to force majeure such as war, terrorism, natural disasters, fire, strike, lockout, embargo, governmental intervention, failure of power supplies, failure of transportation, failure of telecommunications networks or data lines, legal changes to PlanRadar products after signing the contract or through the unavailability of products that cannot be fulfilled in a timely or proper manner, this does not constitute a breach of contract.
7.6 High risk environment: The product may contain components that react negatively to errors or contain errors that may be detected later and corrected using the usual patches. The product was not designed and is not intended to be used in a hazardous environments requiring fail-safe (fault tolerant) performance or in any other application where failure of the product could result directly in death, personal injury, severe property damage or environmental damage.
7.7 The Customer’s end devices and internet connection are not PlanRadar services. PlanRadar is not liable for damage or defects that are beyond its control (in particular, disruptions to public communications networks, a lack of system requirements …). Current system requirements for using PlanRadar can be found on www.planradar.com.
8.1 If the Customer is provided with PlanRadar products to use or is granted use of the services, the Customer has the non-exclusive, non-transferable retractable right, which cannot be sub-licensed and is unilateral on the part of PlanRadar, to use the software products in their unaltered form.
8.2 If the Customer is using PlanRadar software products that are ceded by third-parties, the terms of this point 8 shall prevail as the relevant licence terms of the manufacturer for these software products
8.3 If no special agreement has been made, there is no transfer of rights to the Customer in relation to software products. In particular, the Customer does not acquire any rights whatsoever to the product, in particular, no trademark, patent or other intellectual property rights.
8.4 All the documents provided by PlanRadar to the Customer, in particular, the documentation for software products, may not be copied or distributed in any way, whether for free or at a cost.
9.1 The Customer warrants to treat all PlanRadar’s business secrets as such in connection with this Agreement and its implementation, when the Customer is aware of these and warrants not to make them accessible to third parties, insofar as these are not generally known, or already known to the recipient in advance without a confidentiality duty, have been communicated or left to the recipient by a third party without a confidentiality duty or are proven to be developed by the recipient independently, or are to be disclosed under a final administrative or judicial decision.
9.2 PlanRadar subcontractors are not considered as third parties to the extent they are subject to a corresponding confidentiality duty according to this point.
9.3 Violations of the nondisclosure duty mean that the Customer is liable to PlanRadar for any damages.
10.1 Contracts between PlanRadar and the Customer are concluded for an indefinite period of time unless otherwise expressly stipulated. The Customer waives any right to terminate the contract during the period in the product descriptions or individual agreements.
10.2 Both PlanRadar and the Customer may terminate an indefinite contract that has been concluded at the end of the accountable period. Termination shall be effected on the PlanRadar platform by an administrator employed and authorized by the Customer.
10.3 If PlanRadar carries out an extraordinary termination with immediate effect, the Customer has no claim against PlanRadar. An extraordinary termination may take place when:
10.3.1 The Customer gives incomplete or inaccurate information or fails to provide the necessary forms of evidence.
10.3.2 The Customer is in default of payment by 14 days and a time extension is not granted.
10.3.3 There is a reasonable suspicion that services have been misused, including by third parties.
10.4 Instead of canceling a contract immediately, if there is a reason for termination, PlanRadar is entitled to ask for a guarantee (deposit, guarantee, a bank guarantee from an authorised Institute within the European Economic Area) from the Customer. Furthermore, PlanRadar is entitled to request advance settlement like payment for services up to 6 months in advance in the reasons for termination in this point 10.
11.1 All title and copyright, as well as industrial copyright for the Software, belonging to PlanRadar or subcontractors of PlanRadar, (including but not limited to any images, photographs, animations, video, audio, music, text and “applets” that are contained in the Software Product), the accompanying printed materials, and any copies of the Software. The Software is protected by copyright laws and international copyright treaties, as well as other laws and agreements concerning intellectual property. The Software is licensed, not sold.
11.2 Use of the Client Software: The Customer may only use the Client Software that has been installed on the end devices according to the provisions of his contract partner for this service and only in connection with the services that are the subject of the Software.
11.3 Use of Redistribution Software: The Customer may only use Redistribution Software with the explicit approval of the producer for the supplementary provisions.
11.4 Backups: The Customer may not make any backup copy of the software, except the copies that the Customer may make in connection with Redistribution Software.
11.5 The Customer is not entitled to reverse engineer, decompile or disassemble the Software unless (and only to the extent) it is expressly permitted by applicable law, notwithstanding this limitation.
11.6 Transfer Restrictions: The Customer may not license the Software to third parties nor distribute a sub-license nor lend, transfer by lease or transfer otherwise. The end user is not entitled to transfer the Software, directly or indirectly, or distribute it to third parties.
11.7 The temporary assignment of subcontractor access according to the product description is granted, where applicable.
12.1 The Customer must immediately inform PlanRadar of any changes in address or other significant information. If the Customer fails to do this, PlanRadar’s communication shall be deemed as delivered upon the last opportunity for communication.
12.2 The Customer accepts that PlanRadar is entitled to communicate legally relevant declarations to customers by e-mail, SMS or other electronic media (this also applies to invoices; where applicable invoices are electronically signed to comply with the provisions of the VAT Act). Statements shall be deemed received when the Customer should be able to check or view these under normal circumstances.
12.3 Non-registered mail shall be deemed as received within 2 business days after it has been sent.
13.1 Unless specifically stated, all accounts are ex VAT and other levies at the current applicable rate.
13.2 Fixed charges are billed in advance for the respective accounting period.
13.3 Claims for payment are due in accordance with the conditions of the payment provider
Fastspring (http://www.fastspring.com/) – unless otherwise stated.
13.4 The Customer must bear any charges in connection with the cash transfer such as bank charges
and other expenses.
13.5 For late payments, the Customer will be charged a default interest of 10% p.a. of the amount outstanding and in addition overdue fines. All necessary and appropriate related costs incurred for the intervention of lawyers and collection agencies are to be borne by the Customer.
13.6 Discounts are excluded and will not be granted.
13.7 Customer payments will be credited against their earliest debts.
13.8 PlanRadar is entitled to unilaterally appropriately increase prices for its products and will inform the Customer on time, at least one month in advance.
13.9 Invoices are deemed as accepted if no written objection has been raised within 3 months of billing and the Customer does not start legal proceedings within a further 2 months.
13.10 Any offsetting by Customer against PlanRadar claims is excluded. The Customer’s right to retention is also excluded.
14.1 Should one or several provisions of these GTC wholly or partially be invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by an analogous valid provision, which serves the economic purpose of the invalid or unenforceable clause as closely as possible.
14.2 The assertion of claims on the grounds of laesio enormis against PlanRadar is excluded.
14.3 Any decision of the Customer on the rights or obligations existing under the contract demands the prior written consent of PlanRadar. However PlanRadar is entitled to transfer contracts without the consent of the Customer to a third party. In this case, these GTC shall continue to apply to the contractual relationship, unless otherwise determined unilaterally by PlanRadar.
14.4 PlanRadar is entitled to use third parties to meet its obligations in full or in part.
14.5 The governing Law is the law of Austria, even if the use of the product is carried out abroad or any other reference is made to the foreign country. Excluded are also conflicts of law rules of Austria and UN sales law.
14.6 The local jurisdiction of the competent Court of Inner City Vienna applies for any disputes. The place of performance is also agreed as Inner City Vienna .