General Terms and Conditions of BauCloud GmbH

1. Contracting Parties and Scope

1.1

The contracting parties are BauCloud GmbH, Jörg-Hube-Straße 99, 81927 Munich, Germany (hereinafter referred to as the “Provider”) and the Customer.

1.2

The General Terms and Conditions of BauCloud GmbH are based on the Bitkom General Contractual Terms Version 3.0, as issued by Bitkom to BauCloud GmbH.

The Bitkom contractual terms constitute a modular system consisting of:

• A general base module: AV Bitkom - General Contractual Terms (Version 3.0)
• Specific service modules for particular contract types:
  • SaaS Bitkom - Contractual Terms for the Use of Software via the Internet (Software as a Service) (Version 3.0)
  • WV Bitkom - Contractual Terms for Work Contracts (Version 2.1)

2. Miscellaneous

2.1

Should any provision of this contract be or become invalid, this shall not affect the validity of the remaining provisions of the contract. The invalid provision shall be deemed replaced by a valid provision that most closely reflects the economic purpose of the invalid provision. The same shall apply in the event of a contractual gap.

2.2

The Provider is entitled to transfer individual rights and obligations, or the entire contract, to third parties. In the event of a complete transfer (e.g., contract assignment), the Customer shall have an extraordinary right of immediate termination. The Customer may only transfer rights and obligations under the contract with the prior written consent of the Provider.

2.3

The Provider is entitled to use the Customer’s name and logo for marketing purposes, and, in consultation with the Customer, also quotations and other content.

Supplementary Contractual Terms for the Use of Librario (Software as a Service)

1. Contracting Parties and Scope

1.1 Contracting Parties

The Customer is not a consumer within the meaning of Section 13 of the German Civil Code (BGB).

1.2 Scope

These Supplementary Contractual Terms extend and specify the General Terms and Conditions of BauCloud GmbH. The specific service module SaaS Bitkom - Contractual Terms for the Use of Software via the Internet (Software as a Service) shall apply in the version specified in the General Terms and Conditions of BauCloud GmbH.

2. Subject Matter of the Contract

The subject matter of these terms is the provision of the software “Librario” as Software-as-a-Service (SaaS). The entire contractual relationship between the Provider and the Customer, established by these terms, the General Terms and Conditions of BauCloud GmbH, and the further documents referred to in Section 3, is hereinafter referred to as the “Librario Service Agreement”.

3. Order of Precedence of Contract Components

Agreements between the Customer and the Provider shall have the following order of precedence, with the higher-ranking document taking priority:

1. Individual amendments and/or supplements to the contractual agreements
2. Individual contractual agreements, in particular the accepted offer
3. Data Processing Agreement (DPA)
4. Supplementary Contractual Terms for the Use of Librario (Software as a Service), i.e., these contractual terms
5. General Terms and Conditions of BauCloud GmbH with the base module (AV Bitkom) and the service module of the terms corresponding to the subject matter of the contract
6. System requirements defined by the Provider
7. Statutory provisions

4. Formation of Contract

4.1 Contract Conclusion

The contract is concluded by an offer from the Customer to enter into a contract and the acceptance of the offer by the Provider. Acceptance by the Provider may be made in writing, by email, or by activation of the first user. In the latter case, the Customer waives a declaration of acceptance by the Provider.

4.2 Confirmation of Scope of Services

Following contract conclusion, the Provider shall notify the Customer of the specific scope of the contractual services in a confirmation message. This confirmation serves for clarification purposes and does not alter the agreed scope of services unless expressly agreed otherwise.

5. Service Description of Librario

5.1

Librario is a cloud-based library software.

5.2

It enables Customers to manage publications (creation, modification, deletion) as well as to search and display publications.

5.3

When creating publications, Librario supports the Customer by attempting to the best of its ability to extract metadata from the content provided by the Customer and to retrieve metadata from public internet sources. This function can only be offered on a best-effort basis, as it requires the Customer’s cooperation and depends on external internet sources:

• It is the Customer’s responsibility to prepare the provided content in machine-readable form, for example by maintaining metadata or preparing the content with text recognition (OCR).
• The internet sources used may discontinue or modify their offered service at any time, may be technically unavailable, or may be affected by issues regarding data availability and quality.

5.4

It is the Customer’s responsibility to maintain their own data inventory (e.g., to record new publications, to improve data quality). Librario does not actively maintain or manage the Customer’s inventory of publications. Librario may make suggestions for improvement on how the Customer can increase data quality. However, the Customer is responsible for implementing these suggestions themselves.

5.5

The Provider guarantees server availability of 98.00% on an annual average. Excluded from this are periods of unavailability due to technical problems outside the Provider’s sphere of influence (e.g., force majeure, fault of the Customer, fault of a third party, maintenance work by the data center used), as well as due to maintenance work. The Provider will endeavor to perform maintenance work at the following times to ensure the greatest possible availability of Librario: On weekends and/or weekdays from 23:00 to 01:00 CET.

5.6

For serious incidents, the Provider guarantees a response time of 5 hours during regular business hours on business days (Monday to Friday, 8:00 to 18:00). For other incidents, the Provider guarantees a response time of 24 hours. If an incident is reported outside the above business hours, the response time begins at the start of business hours on the next business day.

5.7

The licensing of content provided by the Customer or its users is not included in the scope of services. The Customer is responsible for ensuring that all content uploaded to Librario is free of third-party rights or that the necessary usage rights have been obtained.

5.8

Librario offers an API that can be used both for data backup by the Customer and upon contract termination. Via this API, Customers can create a backup of their data, which contains the content in original format as well as JSON files with the metadata.

6. Supplements and Deviations from the Contractual Terms for the Use of Software via the Internet (Software as a Service) - SaaS Bitkom -

6.1 Supplement to SaaS Bitkom Section 4 (Data Protection)

The Provider performs daily backups of Customer data. Despite these regular backup measures, the Provider points out that partial data loss may occur. In the event of data loss, data can only be restored up to the point of the last successful backup. See also SaaS Bitkom Section 5.3 in this regard.

6.2 Supplement to SaaS Bitkom Section 5.3 (Data Backup by the Customer)

To fulfill its duty of data backup, the Customer may at any time use the API described in Section 5.8.

6.3 Supplement to SaaS Bitkom Section 8.1 (Contact Point)

The Provider’s hotline also accepts incident reports from the Customer.

6.4 Deviation from SaaS Bitkom Section 8.2 (Receipt and Processing of Inquiries)

Inquiries and incident reports may only be submitted via email or through the contact form on the Provider’s website. Contact by telephone or fax is not possible.

6.5 Supplement to SaaS Bitkom Section 9.1 (Contract Commencement)

If no date is specified in the contract, the contract term shall commence at the time of contract conclusion referred to in Section 4.1 of these Supplementary Contractual Terms.

6.6 Supplement to SaaS Bitkom Section 9.1 (Contract Term)

The contract is initially concluded for a minimum term of one month, unless a different term has been agreed.

6.7 Deviation from SaaS Bitkom Section 9.2 (Notice Period and Extension)

The contract may be terminated with 30 days’ notice, at the earliest upon expiration of the minimum term. If not terminated, the contract shall be extended by one further month each time, unless properly terminated with 30 days’ notice prior to the end of the respective extension period.

6.8 Supplement to SaaS Bitkom Section 9.5 (Contract Termination)

Upon termination of the contract, the Customer may use the API described in Section 5.8 to back up its data. The Provider will delete the Customer’s data 30 days after the end of the contract, unless statutory retention obligations preclude this.

7. Supplements and Deviations from the General Contractual Terms - AV Bitkom -

7.1 Modified Liability Provision (regarding Section 6.2 AV Bitkom)

In deviation from Section 6.2 of the AV Bitkom, the Provider’s liability for material and pecuniary damages caused by slight negligence is limited as follows: Liability is limited to the amount of the net annual remuneration paid by the Customer in the 12 months immediately preceding the damaging event. If the contractual relationship existed for a period shorter than 12 months at the time of the damaging event, the remuneration paid up to that point shall be extrapolated to an annual amount. The minimum liability amount pursuant to Section 6.2 AV Bitkom shall not apply. Liability pursuant to Section 6.1 AV Bitkom remains unaffected by this limitation.

8. Data Processing

The provision of SaaS services includes the processing of personal data on behalf of the Customer. The provisions of the Data Processing Agreement (DPA) pursuant to Art. 28 GDPR shall apply. This DPA is a legally binding annex to these contractual terms and an integral part of the contract. In accordance with the order of precedence set forth in Section 3 of these terms, the provisions of the DPA shall take precedence in the event of conflicts.