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>> General Terms and Conditions (GTC)
Preamble
Realcube GmbH (below referred to as “Realcube” or “we”) offers a platform for app-based real estate management (“AIM”) for owners and operators of real estate as a SaaS system over the Internet. These General Terms and Conditions (GTC) regulate the contracts concluded between the respective customer and Realcube regarding the use of the AIM.
1. Scope
1.1. These General Terms and Conditions (GTC) govern the contracts concluded between the respective customer and Realcube regarding the use of the AIM, unless otherwise expressly agreed between the customer and Realcube in writing. In addition to these General Terms and Conditions, when concluding a contract for the full version (see Section 2.3 below), the contract for the order processing of personal data and the price list that may be valid at the time the contract is concluded also apply, unless the price has been expressly agreed.
1.2. We will not accept any deviating or conflicting conditions unless we have expressly agreed to them.
1.3. The target is provided exclusively to entrepreneurs within the meaning of § 14 BGB and the contract is concluded exclusively with entrepreneurs. Use by and conclusion of a contract with consumers is not possible.
2. Subject of the contract
2.1. The subject of the contract is the provision of access to the AIM operated by Realcube via the Internet with the availability defined in Section 3 via a user account created for the respective customer and the storage and processing of the data recorded by the customer in his account in accordance with these General Terms and Conditions.
2.2. Realcube provides the customer with the AIM in the current version for the purpose of managing one or more buildings or units with the current functionalities, whereby at least in the full version (see section 2.3) functionalities for the management of master data, Documents and technical systems, the creation and management of contracts, as well as functions for attributing buildings and units and filter creation are included and the AIM has an open 2-way API that can be used to run applications not developed by Realcube according to the ones developed by Realcube to create predefined interface definitions and connect them to the AIM. Additional functionalities may be offered, but they are not owed and can be discontinued.
2.3. The AIM is offered in a paid full version and in a free trial version. The trial version may have a limited range of functions compared to the full version. In the trial version, the customer is not allowed to enter any personal data other than their own in their account.
2.4. To the extent that Realcube offers as part of the open 2-way API to create applications not developed by Realcube according to the interface definitions specified by Realcube and connect them to the AIM, Realcube only owes the correct functioning of the interface according to Realcube's interface definition Applications developed by Realcube in a specific form are not owed by Realcube, but exclusively by the customer's other contractual partner.
3. Availability
3.1. There is no specific availability for the trial version.
3.2. The full version of AIM is available to the customer with an average availability of 99.5%, based on the month, less scheduled maintenance work of a maximum of one hour per week. Availability refers to the quality owed by Realcube of the AIM offered to the customer for use at the transfer point to the Internet. Impairments in the area of data transmission from this transfer point to the customer and/or in the area of the customer's IT system itself are not taken into account.
Scheduled maintenance work will be communicated to the customer at least seven days before it is carried out.
When calculating actual availability, downtimes that cannot be attributed to Realcube are considered available times. These harmless downtimes are:
• maintenance or other services agreed with the customer that go beyond scheduled maintenance work that do not make access to the AIM possible;
unforeseeably necessary maintenance work, if this work was not caused by a breach of Realcube's obligations to provide the services (force majeure, in particular unforeseeable hardware failures, strikes, natural events, etc.); Downtimes due to virus or hacker attacks, insofar as Realcube has taken the agreed or, in the absence of an agreement, the usual protective measures;
• Downtime due to unavailability of the customer's equipment or due to other interruptions caused by the customer (e.g. failure to cooperate on the part of the customer);
• Downtime for the installation of urgently needed security patches;
• Downtime due to software errors in customer applications or due to errors in system and system-related software triggered by customer applications or data;
• Downtime caused by third parties (persons not attributable to Realcube).
4. Conclusion of contract and conclusion of the contract
4.1. The contract for the trial version can only be concluded online via a website operated by Realcube.
4.2. The contract for the full version can, if offered, be concluded either via a website operated by Realcube or offline by accepting an offer from Realcube.
4.3. If the contract is concluded offline, it comes into existence when Realcube receives the signed acceptance of the contract offer in the original or copy, as a PDF or in another electronic form from the customer. Contractual offers made by Realcube that change the content of the contract are considered a new offer from the customer; the contract is only concluded through explicit acceptance by Realcube provision of a service is not considered an implied acceptance.
4.4. If the contract is concluded online, it can be concluded in German or English and is concluded via the following technical steps:
• The customer fills out a form provided online by Realcube with the required information. Before submitting his declaration of intent, he can check the information entered in the form for input errors and correct any errors that are identified;
• The customer clicks the button on the form and sends his contractual declaration to Realcube;
• Realcube confirms receipt of the contractual declaration to the customer electronically to the email address provided by the customer. This declaration of access does not constitute acceptance of the customer's offer, unless acceptance of the offer is expressly declared in this email or the customer is expressly informed that he can activate his account;
• Realcube sends an express declaration of acceptance of the customer's offer, if this has not already been done with the confirmation of receipt, as explained above.
After the contract has been concluded, Realcube saves the customer's entries for contracts concluded online. The customer can request the details of his contract from Realcube at any time, but these entries are not immediately accessible to the customer after the contract has been concluded. We therefore recommend keeping a copy of the data entered.
5. Realcube Responsibilities
5.1. When the contract is concluded then Realcube sets up an internet-accessible account for the customer, through which the customer can use the AIM in accordance with the subject matter of the contract. Realcube grants the customer and each user created by the customer access authorization to the account with, if necessary, limited rights for individual users. The access authorization consists of a user password and a password created by the customer;
5.2. There is no obligation to provide a full version until the customer has concluded the contract for the processing of personal data;
5.3. Realcube provides the customer with documentation available via the Internet;
5.4. Realcube provides support depending on the support package ordered by the customer as part of the conclusion of the contract or thereafter in accordance with the applicable price list or as explicitly defined in the contract in the form of:
• Either pure community support via a web forum without guaranteed availability and response time.
6. Customer Obligations
6.1. The Customer is obliged to pay the fees owed under the Agreement and the ordered Support Package in accordance with the “Fees” section below;
6.2. The customer undertakes not to use or record any personal data other than his own in the AIM as part of the trial version, but to only work with fictitious data;
6.3. The customer is obliged to use the AIM exclusively for the purpose described in Section 2.2 and not to store any illegal content that violates laws, official requirements or the rights of third parties, such as viruses or malicious code, in the AIM;
6.4. The customer may only disclose the user password and password to authorised users and must otherwise be kept secret;
6.5. The contractual use of Realcube's services is dependent on the hardware and software used by the customer, including workstation computers, routers, data communication devices, etc., meeting the minimum technical requirements for the use of the currently offered version of AIM and those of the customer Users authorised to use the application software are familiar with the operation of the software.
7. Rights of use
7.1. Realcube grants the customer the simple, non-exclusive and non-transferable right to use the AIM for the duration of the contract in accordance with the subject matter of the contract;
7.2. Unless this has been expressly agreed, the customer is not entitled to make the AIM or its use available to third parties (third parties are not the customer's employees) for use either against payment or free of charge. The customer is expressly not permitted to sublet or lend or make access to AIM third parties or to make copies;
7.3. If the customer stores copyrighted content in the storage space intended for him in the AIM, he grants Realcube the right to make the content stored there accessible to the customer when he queries him via the Internet and, in particular, to reproduce and transmit it for this purpose and to to be able to reproduce data for data backup purposes and guarantees that these rights can be granted.
8. Data protection
8.1. In the case of a contract for the trial version, the customer undertakes not to record any personal data other than his own in the AIM. In the case of a contract for the full version, the parties also conclude a contract for the order processing of personal data. The customer is solely responsible for compliance with data protection regulations regarding the personal data processed with the AIM.
9. Full Version Fees
9.1. The customer undertakes to pay Realcube the agreed fee plus statutory VAT without deductions. Unless otherwise agreed, the remuneration is based on Realcube's price list valid at the time the contract is concluded, depending on the term of the contract chosen by the customer;
9.2. Realcube may adjust the agreed fees at the end of the respective term in accordance with Section 10.1 with a notice period of one month for monthly and three months for annual and semi-annual terms. If the customer does not agree to the price adjustment, he or she can object two weeks before the price adjustment is intended to take effect. The objection must be in text form. In the event of an objection, Realcube is entitled to terminate the contract within four weeks of receipt of the objection in accordance with the notice periods specified in Section 10.1, whereby for the half-yearly and annual terms, the termination does not have to be declared at the end of the term, but also at the end of the term Can be declared at the end of a month during the term. If the customer does not object, the changed prices are deemed to have been approved by him. When notifying the customer of the price change, Realcube will specifically inform the customer of the intended meaning of his behaviour;
9.3. The fees for the respective term are due in advance on the day the contract begins and at the beginning of each extension date;
9.4. The customer must raise objections to the billing of the services provided by Realcube in writing to the office specified on the invoice within four weeks of receipt of the invoice. After the aforementioned period has expired, the billing is deemed to have been approved by the customer. Realcube will specifically inform the customer of the importance of his behaviour when he sends the invoice;
9.5. The customer is only entitled to set off and assert a right of retention if the counterclaim asserted by the customer is undisputed or legally established.
10. Termination
10.1. The customer can choose between monthly, semi-annual and annual terms for the full version. The contract is automatically extended at the end of each term for the same term, unless it is extended with one week's notice in the case of the monthly term, with one month's notice in the case of the semi-annual term and with one notice in the case of the annual term of three months to the end of the current term;
10.2. The right to extraordinary termination remains unaffected;
10.3. The contract for the trial version is unlimited in time and can be terminated by either party at any time without notice;
10.4. The duration of the support package corresponds to the duration of the full version.
11. Confidentiality
11.1. The contracting parties will retain all business and trade secrets (“confidential information”) of the other party, in particular all documents in electronic or other form, software application code, documentation, customer information, building information, procedures and methods of Realcube in providing the services and other know-how of Realcube should be treated confidentially and used only for the purposes of the contract. Confidential information of a party (“Protected Party”) does not include information that (i) is or becomes generally known through no control of the other party; (ii) were already known to the other contracting party before they were made available to him by the protected party and which the other party had not received, directly or indirectly, from the protected party; (iii) was lawfully disclosed to the other party by a third party without any restrictions on disclosure; (iv) was developed by the other party itself without using or relying on the confidential information of the protected party;
11.2. This information may only be made accessible to third parties if the protected party has expressly agreed to this in advance in writing and if this is absolutely necessary for the execution of the contract. This obligation of secrecy does not apply to persons of the respective party who are legally bound to professional secrecy (auditors, tax advisors, lawyers), not to authorities who have a right to information, and not to the extent that publication has been ordered by a competent court. If there is a request for information from an authority or a court, the contracting parties will work together to limit the disclosure of confidential information to the necessary minimum. Third parties are not agents, freelancers and subcontractors of Realcube;
11.3. Upon termination of the contract, for whatever reason, both contracting parties will immediately destroy or return, at their discretion, all confidential information of the other party, unless mandatory retention obligations conflict with this;
11.4. The rights and obligations from paragraphs 11.1 to 11.3 above remain unaffected by termination of the contract.
12. Liability
12.1. As part of the trial version contract, Realcube is liable in accordance with this paragraph. In the event of damage due to defects in the law or errors in the AIM, Realcube is only obliged to compensate the customer for damage that arises from Realcube's fraudulent concealment of a defect in the law or an error in the AIM. In the event of a breach of protective obligations that are not related to the provision of the AIM, Realcube is liable without limitation for damages resulting from injury to life, body or health resulting from a negligent breach of duty by Realcube or an intentional or negligent breach of duty by a legal representative or vicarious agents of Realcube. Otherwise, Realcube is only responsible for intent and gross negligence.
12.2. As part of the contract for a full version, Realcube is liable in accordance with this paragraph. If the services provided by Realcube are defective because their suitability for use in accordance with the contract is not only negligible, Realcube is liable for material and legal defects in accordance with the statutory provisions. Realcube is only liable for defects in the software that were already present when it was handed over to the customer if Realcube is responsible for these defects.
Realcube is also liable for:
• For intent and gross negligence by Realcube or a legal representative or vicarious agent of Realcube in accordance with the statutory provisions; Unlimited for damages resulting from injury to life, body or health; In the case of slight negligence by Realcube or a legal representative or vicarious agent of Realcube only in the event of a breach of an essential contractual obligation (cardinal obligation) and only for foreseeable damages associated with this.
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