These General Terms and Conditions (“Terms”) govern the rights and obligations between PlanRadar and PlanRadar’s customers.
2.1 These Terms form a binding agreement that governs the business relationship between PlanRadar and PlanRadar’s customers as to the use of PlanRadar’s products and services, whether for payment or not (e.g during trial phases). PlanRadar provides its products and services exclusively based on these Terms. Any use of PlanRadar products and services by the customer shall be governed by these Terms.
2.2 In addition to these Terms, the current PlanRadar price lists (see www.planradar.com), as well as any other contract terms to the extent that these have been individually agreed in writing, shall apply.
2.3 By using any products or services of PlanRadar, the customer agrees and confirms that only PlanRadar’s Terms shall apply to the contractual relationship between PlanRadar and the customer to the exclusion of any terms and conditions of the customer.
2.4 PlanRadar may periodically add to, modify or otherwise update these Terms in its sole discretion at any time. The customer will be notified of such changes via email at least two months before they will take effect. The customer may object to such change in writing within four weeks from receipt of the email. All changes will be deemed accepted and binding, if either (i) the customer has consented to the change or (ii) the customer has not objected to the change within the four-week period. In the event of an objection, PlanRadar may terminate the contracts concluded with the objecting customer under the immediately prior Terms for good cause, subject to a one-month notice period. If PlanRadar does not terminate one or more such contracts in the event of an objection, the immediately prior Terms shall continue to apply to such contract or contracts.
3.1 PlanRadar provides the customer with a system (potentially) consisting of several modules for construction documentation and defect management as software-as-a-service (“SaaS”) in the respective current version for use via the Internet, an app as client software as well as the possibility to store data (hereinafter collectively referred to as the “Software”).
3.2 Additional services, such as adapting the Software to the individual requirements of the customer, require a separate agreement.
3.3 PlanRadar reserves the right to further develop and change the Software and all specifications of the Software at any time (e.g. by using newer or different technologies, systems, processes or standards). The customer benefits from such ongoing Software development and accordingly acknowledges in return, that there may be times when temporary maintenance takes place in connection with any updates and upgrades. PlanRadar will notify the customer in good time if there will be any significant changes in Software performance. If the customer experiences material disadvantages as a result of significant service changes, the customer will be entitled, as its sole and exclusive remedy, to terminate the contract extraordinarily within 14 days of its receipt of the notification of the significant service changes with such termination taking effect on the date on which the changes became effective.
3.4 The customer has the option of using the Software free of charge for a period of 30 days after registration (the “test phase”). Before the end of the test phase, PlanRadar will contact the customer and inform the customer of the option to take out a contract in return for payment to continue to use the Software. If the customer does not take up this option, the customer’s right to use the Software shall immediately terminate and its user account will be locked and then deleted within 30 days.
3.5 In connection with the Software, PlanRadar may make available to the customer or the customer may separately license certain third party products (collectively, the “Third-Party Products”). All Third-Party Products are subject to their own terms and conditions provided by the Third-Party Products vendors. If the customer does not agree to abide by the applicable terms for any such Third-Party Products, then the customer should not install or use such Third-Party Products. EXCEPT AS OTHERWISE PROVIDED IN THE THIRD PARTY LICENSOR’S LICENSE AGREEMENT, IF ANY, ACCOMPANYING THE THIRD PARTY PRODUCTS, THE THIRD PARTY PRODUCTS ARE PROVIDED “AS-IS,” WITHOUT WARRANTIES OF ANY KIND AND PLANRADAR AND THE THIRD PARTY LICENSOR DISCLAIM ALL WARRANTIES WITH RESPECT TO THE THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL PLANRADAR OR THE THIRD PARTY LICENSOR BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY PRODUCTS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.. The customer may not raise any claims against PlanRadar for any claims related to Software malfunctions arising from such Third-Party Products or caused by the customer or a third party.
3.6 The place of PlanRadar’s service provision is the router exit to the Internet located at the data center used by PlanRadar. The customer’s end devices and the Internet connection are not part of PlanRadar’s service. The customer must have the required equipment, software, and Internet access to be able to use the Software and acquiring, installing, maintaining and operating equipment and Internet access is solely the customer’s responsibility.
4.1 The customer may only use the Software in accordance with these Terms as well as any applicable individual agreements. The customer must ensure that all of its users of the Software (employees, subcontractors, agents or other third parties attributable to the customer) comply with such terms, including any applicable confidentiality requirements. The customer is solely responsible for and liable to PlanRadar for all damages resulting from the violation of these Terms or any applicable individual agreement by the customer or its users, in particular in the case of any illegal use of the Software.
4.2 The customer shall only use the software for its intended purpose and shall not misuse it, in particular not use it to store or distribute unlawful content. The customer further undertakes not to use any technical equipment, software systems or other data that could impair the Software or systems of PlanRadar.
4.3 The customer is not permitted to make changes to the Software or to have such changes carried out by third parties.
4.4 The customer must maintain the IT infrastructure that is required to use the Software at its own expense and own risk.
4.5 The customer must take appropriate technical steps to secure its system and must regularly backup its data.
4.6 The customer must secure its login details to the Software and not make them accessible to third parties. Customer is responsible for all activity occurring on the Software using its login details.
4.7 In addition to any other available rights and remedies, PlanRadar may suspend the customer’s use or access to the Software in the event of a breach of these Terms or of any individual agreements, including but not limited to if the customer defaults on any payment. Any such suspension shall not affect the customer’s obligation to continue paying the contractual fee for use of the Software. In addition, the customer must reimburse PlanRadar for any costs incurred in connection with the suspension of the customer’s access.
4.8 The customer agrees that its and its users’ use of the Software shall at all times be in compliance with all applicable laws and regulations. The customer is solely responsible for any and all improper use of the Software by the customer and the customer will notify PlanRadar immediately of any unauthorized use of the Software any customer user’s account.
4.9 The customer agrees that PlanRadar may name customer as reference and use the name, trade name, trade mark, service mark or symbol of the customer in advertising, publicity, marketing or other promotional materials or activities. PlanRadar will agree with the customer as to the use of customer logos etc. before publication.
5.1 All rights title to and ownership of the Software, including any modifications and enhancements thereto belong to PlanRadar or its licensors. Subject to the customer’s compliance with these Terms (including, without limitation, the payment of all applicable fees), PlanRadar grants the customer a non-exclusive, non-transferable and non-sublicensable right to access and use the Software for its internal business purposes for the agreed period specified in the applicable order. For any downloaded or on-premises aspects of the Software, the customer may only duplicate the Software to the extent necessary for the intended use of the Software (e.g. loading into the main memory of the various terminals). The customer shall not frame or mirror any content forming part of the Software and is not permitted to reproduce, sell, rent or lend the Software or parts of it in any other way or to transfer it to third parties or to grant any sublicenses in the Software. The customer is allowed to temporarily assign subcontractor access in accordance with the product description of the Software.
5.2 Unless otherwise agreed, no further rights to the Software are granted to the customer. In particular, the customer shall not acquire any rights whatsoever in the Software, and in particular no copyright, no trademark, patent, or other intellectual property rights.
5.3 For Third-Party Products, the respective license terms of the manufacturer of the Third-Party Products shall take precedence over the provisions of this section 5. With regard to the license terms of the Third-Party Products, see Section 13.
5.4 The customer shall not and will not permit its users or any third-party to reverse engineer, decompile or disassemble the Software, or modify or create any derivative works based on the Software or the sites or pages at which any of the Software is displayed or used unless (and only to the extent that) applicable law expressly and compulsorily permits it, notwithstanding this limitation.
5.5 Points 5.1 and 5.2 apply mutatis mutandis to all documents provided by PlanRadar to the customer, in particular, to the Software documentation.
6.1 PlanRadar warrants that: (i) it has the power and authority to enter into and perform its obligations under these Terms; and (ii) the Software will operate in material compliance with its applicable documentation for the agreed period specified in the applicable order. Provided that the customer notifies PlanRadar in writing of any breach of the foregoing warranty during the agreed period specified in the applicable order and that the customer is not in breach of these Terms (including any payment obligations), PlanRadar shall, as the customer’s sole and exclusive remedy and provided provide standard support (and any other level of support purchased by the customer in the applicable order) in an attempt to correct the non-conformance so the Software operates in accordance with the foregoing warranty. The customer will immediately inform PlanRadar of any such breach and, if possible, with a comprehensible description of the error so that corrective action may be taken. The customer will free of charge assist PlanRadar to remedy any malfunctions.
6.2 THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND PLANRADAR SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, THE SOFTWARE AND RELATED DOCUMENTATION ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS AND PLANRADAR DOES NOT WARRANT THAT ALL SOFTWARE ERRORS WILL BE CORRECTED, OR THAT THE SOFTARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE CUSTOMER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE.
6.3 IN NO EVENT SHALL PLANRADAR OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF PLANRADAR HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
6.4 THE MAXIMUM LIABILITY OF PLANRADAR ARISING OUT OF OR IN ANY WAY CONNECTED TO THE TERMS AND THE TRANSACTIONS CONTEMPLATED HEREUNDER SHALL NOT EXCEED THE LESSER OF TEN THOUSAND DOLLARS ($10,000) OR THE FEES PAID BY THE CUSTOMER TO PLANRADAR DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION SHALL NOT LIMIT OR EXCLUDE PLANRADAR’S LIABILITY FOR ITS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
6.5 PlanRadar cannot exclude the possibility of data loss or other impairments, in particular due to impairments in the customer’s internet connections in the course of synchronization processes. PlanRadar assumes no liability for this either.
6.6 PlanRadar is not liable for damage and defects that are attributable to the customer, including but not limited to improper operation, changed operating system components, interfaces and parameters, changes to the necessary system settings, use of unsuitable organizational means or simple application errors. Likewise, PlanRadar is not liable for disruptions in the public communication networks or inadequate system requirements for the customer (current system requirements for using the software can be found at www.planradar.com.)
6.7 The software may contain components that react negatively to errors or in which contained errors are only detected later and corrected in the course of the usual patches. The Software is not designed to be used in a hazardous environment that requires fail-safe (fault-tolerant) performance or in any other application where failure of the Software could directly result in death, injury, serious property damage or environmental damage.
6.8 Any delay or hinderance in the performance of any duties or obligations of PlanRadar under these Terms will not be considered a breach of these Terms to the extent such delay or hinderance is due to a force majeure, including war, terrorism, natural disasters, fire, strike, lockout, embargo, governmental intervention, epidemic or pandemic, power supply failure, transport failure, telecommunication network or data lines, or legislative changes effected after conclusion of the contract or other unavailability of the Software.
7.1 The customer grants PlanRadar a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the all data it enters, processes, stores, generates or transmits to PlanRadar using the Software (“Customer Data”) as necessary for purposes of providing the Software and for PlanRadar’s internal purposes, including without limitation, its research and development activities to improve its products and services. The customer represents and warrants that it has all necessary rights, approvals and consents to make the Customer Data available to PlanRadar for use hereunder and that PlanRadar’s use of the Customer Data as contemplated herein will not be unlawful or otherwise violate the rights of a third party. The customer further represents and warrants that any Customer Data hosted by PlanRadar as part of the Software will not contain any viruses, worms or other malicious computer programming codes intended to damage or disable any network, systems or data of PlanRadar or any other third party. The customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
7.2 The Software is not designed or maintained in a manner to process, handle or protect sensitive data. When and as required by PlanRadar and/or applicable law, the customer shall promptly execute supplemental security and data protection terms, and data transfer agreements, on such other terms and conditions as shall be mutually agreed upon and as required for the processing or transfer of personal information that is contained in Customer Data in accordance with the requirements of applicable law.
8.1 Each of PlanRadar and the customer (the “Disclosing Party”) may provide the other (the “Receiving Party”) with certain non-public information regarding the Disclosing Party’s business, technology, products, or services that is marked or designated by the Disclosing Party as “confidential” or “proprietary” at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure (collectively, “Confidential Information”). Without limiting the generality of the foregoing, the Software, Documentation, and all enhancements and improvements thereto will be considered the Confidential Information of PlanRadar; and the Customer Data will be considered the Confidential Information of the customer. The Receiving Party agrees to treat the Confidential Information of the other Party with the same degree of care that it uses to protect its own confidential information of like kind and value, but in no case less than a reasonable degree of care and to limit the disclosure of such Confidential Information to employees and agents with a need to know such information to provide or use the Software hereunder and as otherwise expressly permitted under these Terms, provided that each employee or agent is bound by obligations of confidentiality and restrictions against disclosure at least as restrictive as those contained herein.
8.2 The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and coordinates with the Disclosing Party in an effort to limit the nature and scope of such required disclosure..
9.1 These Terms shall apply and remain in effect for the duration of all orders for Software (the “Term”). Subscriptions for access to the Software commence on the start date specified in the relevant order and continue for the term specified therein.
9.2 Unless otherwise indicated in the order, upon the expiration of the term specified in the order, the subscription will automatically renew for consecutive periods of one year unless the Customer gives notice to PlanRadar of its intent not to renew at least 30 days in advance of the applicable automatic renewal date of the subscription. Deletion of an account by the customer shall also be deemed to be a termination of the contract at the end of the respective contract period, and the deletion must take at least 30 days in advance of the applicable automatic renewal date of the subscription.
9.4 Termination must take place in writing or via the PlanRadar platform by an administrator appointed and authorized by the customer.
9.5 PlanRadar may terminate any order with immediate effect under the following conditions:
9.5.1 the customer provides incomplete or incorrect information or fails to provide required proofs.
9.5.2 the customer is in default of payment for more than 30 days; the granting of a grace period is not required.
9.5.3 there is reasonable suspicion that the Software is being misused or used in violation of these Terms or the customer’s subscription rights.
9.6 The customer is responsible for backing up Customer Data in good time before termination of the contract. 30 days after the expiry or termination of the applicable subscription, the Customer Data will no longer be accessible.
10.1 The customer is responsible for providing PlanRadar with customer’s most current address for the customer’s account. The customer must immediately inform PlanRadar of any changes in his address. If the customer has failed to do so, PlanRadar’s notifications and communications to the customer are deemed to have been delivered if delivery was made to the last valid address provided by the customer for communication.
10.2 The customer agrees that PlanRadar may also send legal notifications to the customer by email or other electronic media (this also applies to invoices, which may be electronically signed to comply with the provisions of the sales tax law. Declarations are deemed to have been received as soon as the customer can access them or take note of them under normal circumstances.
11.1 The customer will pay PlanRadar the fees set forth in the applicable order for the Software. All fees (unless otherwise stated) are exclusive of and the customer is responsible for paying any federal, state and local sales, use, excise, ad valorem, value-added, and other similar type taxes and duties imposed on the purchase or provision of the Software (including implementation where applicable). A cash discount is not provided or granted.
11.2 Fees are generally charged in advance for the accounting period in question.
11.3 When ordering via the PlanRadar website, payment claims are due in accordance with the conditions of the payment provider Fastspring (http://www.fastspring.com/) – unless stated otherwise.
11.4 The customer shall bear all bank charges and other expenses associated with the transfer.
11.5 Any amounts not paid when due shall bear interest at the rate of one percent (1%) per month, or the maximum legal rate if less. The customer must bear all necessary and appropriate costs incurred for the intervention of lawyers and collection agencies.
11.6 Payments by the customer will be applied against any outstanding costs or interest. Then, they are offset against any balance, the oldest debt first.
11.7 PlanRadar is entitled to unilaterally increase the prices of the Software and will notify the customer in good time, at least 1 month in advance. For an unlimited contract, the price change takes effect at the beginning of the next accounting period, in the case of a fixed-term contract at the beginning of the next contract year.
11.8 Invoices are considered to be accepted if no objection has been raised in writing within 3 months after the invoice has been issued. 11.9 The customer cannot offset its own claims against PlanRadar’s claims. The customer’s right of retention is also excluded.
12.1 Should one or more provisions of these Terms be or become ineffective or unenforceable in full or in part, by any court or agency of competent jurisdiction, then that part shall be limited or curtailed to the extent necessary to make such provision valid, while remaining as close as possible to the economic purpose of the ineffective or unenforceable clause. All other remaining terms of these Terms shall remain in full force and effect.
12.2 The customer may not assign, delegate, or otherwise transfer its rights or obligations reflected in these Terms or any order without obtaining the prior written consent of PlanRadar, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void
12.3 PlanRadar is entitled to use subcontractors and other third parties in full or in part to fulfil its obligations under these Terms.
12.4 These Terms and the transactions contemplated hereunder shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the choice or conflict of law provisions of such state. The parties agree that any action to interpret or enforce the Agreement will be brought exclusively in the state and federal courts located in the state of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.