1st contract partner

1.1 The contracting parties are Kreutzpointner Business Software GmbH, Sigmund-Riefler-Bogen 2, 81829 Munich, Germany (“we”) and the registered holder of the account required for access to the ^KENEXOS® platform (“you”).

1.2 The use of the services provided by us is only permitted to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). By agreeing to these Terms of Use, you confirm that you and all users acting within the scope of the commissioned license are acting in the exercise of their business activities and are not consumers within the meaning of Section 13 BGB.

2. subject matter of the contract

2.1 We operate a platform for construction management, real estate and asset management as Software-as-a-Service (“SaaS”), which is accessible on the World Wide Web under the domain kenexos.com and via mobile apps for Apple iOS, Android and Windows (“Platform”).

2.2 The subject matter of the contract is the granting of the option to use the platform with the services and functions offered. You may use the platform for your own purposes within the scope of these Terms of Use and process and store your data.

2.3. The platform, the computer performance required for use and the necessary storage space for data shall be provided by us or a computer center commissioned by us. Additional services are not part of the contract and require a separate fee-based agreement.

2.4 You have the option of using the platform free of charge for a period of 14 calendar days after successful registration (“test phase”). Before the free trial period expires, we will contact you and give you the opportunity to continue using the services for a fee within the scope of the license model valid at that time. If you do not agree to paid use, the account will be blocked and deleted, including the data you have entered, within 30 calendar days at the earliest.

2.5 We will provide you with user documentation as online help. Unless expressly agreed otherwise in text form in individual cases, we do not owe any further documentation, training or instruction services.

2.6 These Terms of Use apply both during the free trial period and when using our services for a fee.

3. scope of services

3.1 Our services provided as part of a SaaS are modular in structure. The respective scope of services can be viewed on our website www.kenexos.com.

3.2 During the term of the contract, we will provide you with access to the platform using the access data registered for the account. Access is via the website accessible on the World Wide Web under the domain kenexos.com and/or via mobile apps for Apple iOS, Android and Windows. The installation of mobile apps is not part of our scope of services.

3.3 We develop and operate the platform in accordance with the recognized state of the art. The range of functions develops dynamically. We strive to continuously integrate new functions. However, you are not entitled to the integration of certain functions. You can view the currently available functions at any time on our website www.kenexos.com and in the help section contained in the platform. You accept temporary maintenance times that are necessary in the course of further development. In the event of longer maintenance times, insofar as they can be planned, we will inform you in good time in advance.

3.4 We are entitled to make changes to the platform, provided that these serve to secure and further develop the functionality. The changes may result in changed system requirements, which is why we only support access using a current web browser (in accordance with the compatibility information in the FAQ section) or the current mobile app version.

3.5 You are aware that the data you enter on the platform does not meet the requirements of the “Principles of Data Access and Verifiability of Digital Documents (GDPdU)”.

4. conclusion of contract

4.1 Access to the platform requires a customer account or an account that you can create by registering your personal access data and agreeing to these terms of use and the data protection provisions as amended from time to time. The contract of use is concluded with the order confirmation, which we will send to the e-mail address you have provided. The contract of use is not concluded if you do not activate the account within 24 hours of receiving the activation link.

4.2 Only natural persons or legal entities with unlimited legal capacity who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) are entitled to register. There is no entitlement to activation of an account. The account is not transferable without our prior consent.

4.3 Your general terms and conditions shall not become part of the contract.

5. granting of rights

5.1 We grant you the non-exclusive, non-transferable and non-sublicensable use of the Platform via the account assigned to you in accordance with these Terms of Use during the term of the contract. In particular, you may only reproduce the Platform and the functions and services contained therein to the extent necessary for the intended use. You are not permitted to reproduce, sell, rent, lend or otherwise transfer the platform and the functions and services contained therein or parts thereof to third parties free of charge or for a fee or to grant them sublicenses thereto. The intended and temporary assignment of access to subcontractors is permitted.

5.2 The use is intended in particular to store and retrieve data for construction site documentation and communication, real estate management, asset management, maintenance and operation, and to share it with your subcontractors if necessary.

5.3 By using the Platform, you do not acquire any rights to the Platform or the functions or services contained therein beyond those granted in these Terms of Use, such as copyrights, patent rights, trademark rights or other intellectual property rights.

6. remuneration

6.1 After expiry of the test phase, you must pay for the use of the platform and the associated functions and services within the scope of the license model you have ordered in accordance with the applicable price table.

6.2 The prices quoted are always net prices. The applicable value added tax is to be paid separately.

6.3 The fee is calculated on a monthly basis and is due for payment in advance on the first working day of each month, unless otherwise agreed in individual cases.

6.4 Unless otherwise agreed, we are entitled to collect our remuneration by direct debit. This requires your authorization. You must ensure that the specified bank account has sufficient funds.

6.3 We may adjust the fee in line with general price trends. If the increase in the fee is more than 10%, you can terminate the contractual relationship with effect from the date of the price increase. We will announce a price increase in good time, usually at least one month in advance. You can exercise your special right of termination up to two weeks before the price increase takes effect.

6.4 Offsetting against our claims for payment is excluded unless the counterclaim has been legally established, is ready for decision or is undisputed. The same applies to the assertion of a right of retention.

7 Contract term and termination

7.1 The contract of use comes into force upon activation of the account. Unless otherwise agreed, the contract is valid for an indefinite period. In this case, either party may terminate the contract of use at any time with 14 days’ notice to the end of a calendar month. Notice of termination shall be given in text form.

7.2 Notwithstanding the above, a fixed contract term may be agreed in individual cases. In this case, the contract shall end at the end of the agreed term, unless automatic renewal is provided for. If an automatic extension has been agreed, the contract shall be extended by the agreed extension period unless it is terminated in text form by one of the contracting parties with three months’ notice to the end of the respective term.

7.3 The right of the contracting parties to terminate the contract for good cause without observing a notice period shall remain unaffected. Good cause shall be deemed to exist in particular if one of the contracting parties grossly breaches the obligations expressly set out in this contract, and in particular if insolvency proceedings are instituted against the assets of the other contracting party or if the other contracting party becomes insolvent or unable to pay. Good cause shall also exist if you are more than 14 days in arrears with the payment of the fee or a not insignificant part of the fee. For you, good cause may lie in a significant shortfall in the agreed availability of the platform; this is generally assumed to be the case if the shortfall is more than 10%.

7.4 After termination of the contract of use, the data you have entered on the platform will be stored for a period of 30 calendar days. You are responsible for backing up your data within this period. After expiry of the aforementioned retention period, access to your data is no longer possible.

8 General obligations

8.1 Within a maximum of 24 hours of receiving the order confirmation, please validate the e-mail address you provided when registering for your account by accessing the activation link sent in the order confirmation and then changing the password. If you do not complete the validation within the time limit, the account will not be activated and the contract will be automatically terminated. We will then delete your registration data.

8.2 You must procure and maintain the technical requirements for using the account (e.g. internet access, web browser, end device) at your own expense. You are also obliged to keep the operating systems, web browsers and mobile apps you use to access the platform up to date. You are solely responsible for the functionality of your Internet access, including the transmission paths and your own IT.

8.3 We will provide you with the access data required for identification and authentication in order to use the Platform. You are not permitted to provide this access data to third parties unless it is an additional user named to us who is included in the booked license and has been taken into account in the calculation of the fee. New additional users must be reported to us before the start of the activity so that the fee calculation can be adjusted.

8.4 You must ensure that the content and materials you use are free from third-party rights and do not contain any illegal content.

If third parties (including public bodies) assert claims or legal violations against us based on the allegation that you have violated contractual obligations, in particular that you have uploaded illegal data to the platform or used the platform in an anti-competitive or otherwise illegal manner, you must immediately indemnify us against these claims and provide us with reasonable support in our legal defense and indemnify us against the costs of legal defense.

8.5 You may not take any actions that could impair the functionality or operation of the platform (e.g. through scripts). Nor may you access non-public areas of the platform outside your own account, whereby even attempted access constitutes a serious breach of these Terms of Use. In particular, you may not access other accounts or modify, overwrite, copy or distribute functions and data on the platform outside the intended use.

9. reference customer, access blocking

9.1 In the event of a breach of the obligations contained in these Terms of Use, in particular in the event of late payment, we may block your access to the portal. This does not invalidate the obligations of this user agreement. You must reimburse us for any costs associated with the blocking.

9.2 You expressly consent to being named as a reference customer in our public image. If customer logos, project data, etc. are to be used, this will be agreed with you in advance.

10. claims for defects, malfunctions and liability

10.1 Claims for defects are governed by the law on defects in rental contracts.

10.2 Claims for defects shall become time-barred within 12 months, unless a longer limitation period is prescribed by law.

10.3 Claims for defects are excluded during free use of the platform (14-day trial access). Excluded from this are claims that result from the fact that we have acted with intent or gross negligence.

10.4 The right of termination for failure to grant use in accordance with Section 543 (2) sentence 1 no. 1 BGB is excluded unless the establishment of use in accordance with the contract is deemed to have failed.

10.5 Strict liability for material defects existing at the time of conclusion of the contract (so-called guarantee liability) is excluded, § 536a para. 1 Alt. 1 BGB does not apply in this respect.

10.6 You must support us to the extent necessary in describing, isolating, identifying and reporting faults. In particular, fault reports and questions must be specified to the best of your ability and, if necessary, you must make use of competent employees. You must follow the instructions given by us.

10.7 You are responsible for ensuring that your IT system has adequate virus protection and that it is kept up to date at all times. Liability for loss of data is limited to the typical recovery costs that would have been incurred if backup copies had been made regularly and in accordance with the risks involved.

10.8 The Platform is not designed for time-critical or mission-critical applications and we therefore do not guarantee that the Platform will be available at all times. In particular, the Platform may be temporarily unavailable during maintenance work or in the event of technical faults. We also have no influence on the quality of the internet connection between your end device and the platform. The mobile apps can also be used without an Internet connection once the data has been synchronized.

10.9 Otherwise, we shall be liable for cases of liability attributable to us as follows, irrespective of the legal grounds:

a) In the event of intent or gross negligence, we shall be liable without limitation.

b) In the event of simple negligence, we shall only be liable for damages arising from the breach of a material contractual obligation (i.e. an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance you regularly rely and may rely); in this case, however, our liability is limited to compensation for foreseeable damages typical for the contract. It should be noted that the platform is not operated for applications that are critical to operations or time.

c) The exclusions and limitations of liability resulting from subsection (b) shall not apply if we fraudulently conceal a defect or have assumed a guarantee of quality. They also do not apply to damages resulting from injury to life, limb or health, or in the case of liability under the Product Liability Act.

d) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives and vicarious agents.

11. data protection and license conditions of third parties

11.1 The processing of personal data on the platform is described in our data protection information.

11.2 The Platform uses third-party software (components), such as Amazon Web Services. In addition to these Terms of Use, the respective data protection and license terms of third parties apply, which are available at https://aws.amazon.com/de/compliance/data-privacy/.

12. other

12.1 § 312i para. 1 sentence 1 no. 1 to 3 and sentence 2 BGB are waived.

12.2 The contract of use is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CSIG).

12.3 The court responsible for our registered office is agreed as the exclusive place of jurisdiction.

12.4 Should individual provisions of the contract of use be or become invalid, this shall not affect the validity of the remaining provisions.

12.5 Amendments to the contract must be made in text form. This also applies to the revocation or amendment of this text form clause. If we wish to amend this user agreement with effect for the future, we will notify you in advance of the planned amendments to the Terms of Use and point out that the amendments will be deemed to have been accepted if you do not object to them within four weeks and continue to use the Platform. The notification is usually sent to the e-mail address stored in the account, otherwise via the platform itself.

12.6 There are no verbal collateral agreements.