Legal
Terms of use
This is a translation for information purposes. The German version is the legally binding one.
Provider: ALR Consulting UG (haftungsbeschränkt), Römerstr. 54, 46045 Oberhausen, Amtsgericht Essen HRB 30904, VAT identification number under § 27a UStG (German VAT Act) DE329746567, represented by the Managing Director Christoph Sikora, e-mail info@feldkontor.com, hereinafter the “Provider”.
These terms apply exclusively to contracts with businesses within the meaning of § 14 BGB (German Civil Code), legal persons under public law and special funds under public law, hereinafter the “Customer”. No contracts are concluded with consumers within the meaning of § 13 BGB.
§ 1 Subject matter and parts of the contract
The Provider makes the web application “Feldkontor”, hereinafter the “Application”, available to the Customer for use over the internet in its current version and sets up one project area per project ordered.
The parts of the contract are, in this order of precedence: the offer, the service description with the price list, the service level annex, these terms of use and the data processing agreement. In the event of conflict the above order applies; on data protection matters the data processing agreement takes precedence.
Differing, conflicting or supplementary terms of the Customer do not become part of the contract, even if the Provider does not object to them expressly or renders services in the knowledge of such terms.
The Application is operated on servers in the European Union. Handing over the software for installation at the Customer's premises is not part of the contract. There is no claim to the release of source code or installation packages.
The rights in the Application belong to A.S. Burgos Assistenz Dienstleistungen, owner Ana Silvia Burgos Gonzales. The Provider sells the Application with their consent. The copyright notices in the Application and on printed pages remain unchanged.
§ 2 Services of the Provider
The Provider sets up one project area per project and takes over the project data (fields, tables, inverters, strings, trades, dates) from the documents supplied by the Customer. The sole basis is the drawings and tables handed over by the Customer.
The Provider backs up the data daily and keeps the backups for 120 days. Before every update it creates an additional backup.
The Provider may develop the Application further and install updates, provided the agreed scope of functions is not materially reduced. There is no claim to particular new functions.
Support is provided in accordance with the service level annex.
Not owed are: adjustments to the Customer's own processes, interfaces to other systems, data migration from other programs, evaluations outside the scope of functions and work on site, unless separately ordered and paid for.
§ 3 Availability
The agreed availability, its measurement and the maintenance windows follow from the service level annex.
Announced maintenance windows, periods of force majeure, faults in telecommunications networks and in third-party inputs outside the Provider's sphere of influence, as well as faults caused by acts of the Customer or of the persons it has invited, do not count as downtime.
No contractual penalties or lump-sum compensation have been agreed. The Customer's statutory rights where the contractual use is not provided remain unaffected.
§ 4 Duties and obligations of the Customer
The Customer ensures the technical conditions on its side, in particular current browsers and internet access, and on the site also the mobile network connection.
The Customer keeps access credentials confidential, assigns access only to persons who need it, withdraws it without delay when the authorisation ceases and informs the Provider without delay of any suspected misuse. The Customer must accept the acts of the persons it has invited as its own.
The Customer is responsible for the accuracy and completeness of all content that it and the persons it has invited enter, in particular for daily site reports, quantities, measured values, test results and signatures, and for the lawfulness of photos and documents uploaded. It obtains any required consent of the persons shown itself.
The Customer supplies the drawings for the project setup complete, free of contradictions and in the current version. It bears responsibility for discrepancies between the documents supplied and the plant as built. The Provider points out contradictions that are apparent; there is no duty to check.
The Customer names the qualified electrician responsible for measurements and their assessment and enters the required set values of the grid operator and the manufacturers in the Application itself.
The Application does not replace a technical review. Evaluations, forecasts, traffic-light indicators, plausibility checks of measured values as well as pre-filled letters and records are non-binding aids and text templates. They are based solely on the values entered, replace neither measurement and assessment by a qualified electrician nor a legal review of the individual case, and do not establish conformity with standards. Responsibility for decisions, declarations, acceptances and commissioning remains with the Customer.
The Customer additionally backs up the data and reports available to it through the export function itself at reasonable intervals.
The Customer indemnifies the Provider against third-party claims based on unlawful content, on photos or documents uploaded without authorisation or on a breach of the duties under paragraphs 2 to 5, including the reasonable costs of legal defence.
§ 5 Rights of use
For the term of the contract the Customer receives a non-exclusive, non-transferable right that cannot be sub-licensed to use the Application for its own projects ordered and to grant access to its own employees, subcontractors and clients.
Prohibited are reproduction, modification, reverse engineering beyond § 69e UrhG (German Copyright Act), automated extraction of content, passing on access to third parties outside the projects ordered, and any use for the development of a competing product.
The data entered by the Customer remains with the Customer. The Provider processes it solely to perform the contract and in accordance with the data processing agreement.
The Provider and the rights holder do not evaluate the Customer's project data for construction work of their own or for their own commercial purposes. The use of anonymised technical metrics for troubleshooting and further development remains permitted.
§ 6 Remuneration and payment
The remuneration follows from the offer and the price list. All prices are net and subject to statutory value added tax.
The setup is invoiced after activation, the monthly use in advance in each case. Part months are charged pro rata. Invoices are payable within 14 days of the invoice date without deduction.
What counts for the price band is the number of modules set up in the project area. If it exceeds the limit of the booked band, the next higher band applies from the following month.
If the Customer is in default with at least two monthly payments for more than 30 days, the Provider may restrict access to read-only after giving seven days' notice. Further statutory rights remain unaffected.
The Provider may adjust the remuneration with three months' notice with effect from the end of a contract year. If it increases the remuneration by more than 5 %, the Customer may terminate the contract with effect from the date on which the increase takes effect, up to that date. The Provider points out this right in the notice.
Set-off is permitted only against undisputed claims or claims established by final judgment. The Customer has a right of retention only in respect of claims arising from the same contractual relationship.
§ 7 Term and termination
The contract begins per project with activation and has a minimum term of three months. After that it may be terminated by either side with 14 days' notice to the end of the month in writing.
The right to terminate for cause remains unaffected. For the Provider there is cause in particular in the event of a serious breach of § 5(2) or of default in payment under § 6(4) despite a deadline having been set.
Notices of termination must be in writing. The termination of one project area does not affect the others.
§ 8 Data at the end of the contract
Up to the end of the contract the Provider makes a full backup of the project available to the Customer on request as a ZIP file and the reports as PDFs. The remuneration follows from the price list. As an alternative the Customer may order archive operation.
30 days after the end of the contract the Provider deletes the Customer's data, unless a statutory retention obligation applies. Backups are deleted when their retention period of 120 days expires.
The Customer is expected to retrieve the data it needs before these periods expire.
§ 9 Defects
The Provider remedies defects in the Application within a reasonable period in accordance with the service level annex. The Customer reports defects without delay with a comprehensible description in writing and assists in narrowing them down.
A deviation based on incorrect entries, incomplete drawings, unsupported browsers, a missing network connection or a configuration prompted by the Customer does not count as a defect.
Liability without fault for defects existing at the time the contract was concluded under § 536a(1) alternative 1 BGB is excluded.
The Customer's right to a reduction under § 536 BGB remains unaffected; it is limited to the period and the extent of the impairment.
§ 10 Liability
The Provider is liable without limitation in cases of intent and gross negligence, for injury to life, body or health, for fraudulent concealment of a defect, to the extent of an expressly given guarantee and under mandatory statutory provisions including the Produkthaftungsgesetz (German Product Liability Act).
In the event of slightly negligent breach of a duty whose performance is what makes the proper execution of the contract possible and on whose observance the Customer may regularly rely, the Provider is liable limited to the foreseeable damage typical of this type of contract at the time the contract was concluded, up to a maximum of the sum of the remuneration paid for the project concerned in the last twelve months.
Otherwise liability for slight negligence is excluded.
For the loss of data the Provider is liable only in the amount of the effort that would have been required for restoration had the Customer carried out proper and regular data backups under § 4(7).
The Provider is not liable for damage arising because the Customer uses results of the Application without a technical review of its own, in particular evaluations, forecasts, plausibility checks of measured values, test reports and pre-filled letters (§ 4(6)), or because it enters or supplies incorrect or incomplete data.
Where liability is limited or excluded, this also applies to the personal liability of the legal representatives, employees and agents of the Provider as well as to the rights holder of the Application and its owner.
The above provisions do not involve any change in the burden of proof to the detriment of the Customer.
§ 11 Data protection and confidentiality
Where the Provider processes personal data on behalf of the Customer, the parties conclude the data processing agreement under Art. 28 GDPR that is attached to this contract.
Both parties treat confidential information of the other party, in particular project data, prices and contract content, as confidential. The duty applies for two years beyond the end of the contract.
§ 12 Reference
The Provider may name the Customer as a reference only with the Customer's prior consent in writing.
§ 13 Amendment of these terms
The Provider may amend these terms where the amendment is necessary to adapt them to a changed legal position, to case law of the highest courts or to technical developments and does not place the Customer at an unreasonable disadvantage. Material contractual duties and the ratio of performance to consideration remain unaffected.
The Provider notifies amendments in writing at least six weeks before they take effect. If the Customer does not object within that period, they are deemed accepted; the Provider points out this consequence and the right to object in the notification. If the Customer objects, the contract is continued on the previous terms; in that case either party may terminate it with one month's notice to the end of the month.
§ 14 Final provisions
Amendments and additions to the contract must be in writing.
The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
The place of jurisdiction is Oberhausen, provided the Customer is a merchant, a legal person under public law or a special fund under public law.
The Customer may transfer rights and duties under this contract only with the prior consent of the Provider in writing.
Should a provision be or become invalid, the validity of the remaining provisions is not affected.
Annex: service level
Availability, maintenance, support and data backup are governed by the service level annex. The key figures are summarised under Operation and security. The full annex is handed over with the offer.