docu tools GmbH is a professional software manufacturer whose "docu tools" software is used in particular for the electronic documentation, management and organization of construction processes, of property and building conditions and of construction projects.
Contractual partners (hereinafter referred to as "Client") are companies within the meaning of Section 1 para. 2 KSchG (German Consumer Protection Law), with whom docu tools GmbH concludes a contract for services in the above-mentioned or related areas of activity.
Scope of Application
These General Terms and Conditions of Business (hereinafter referred to as "GTC") shall apply to all business transactions between docu tools GmbH and the Client, i.e. even to the provision of services free of charge in the course of test phases or a free user role, in addition to the provisions of a direct contractual agreement or order.
Provisions in the Terms and Conditions of the Client that contradict these GTC shall only be effective if they are expressly acknowledged by docu tools GmbH in writing.
Services Provided by docu tools GmbH
docu tools GmbH shall provide the Client with software consisting of multiple applications that will be subject to continuous updates and advanced developments. If necessary or desired, additional services, such as training, software adaptation, interface consulting, etc. will be provided.
docu tools GmbH software is offered as a cloud solution. The cloud service is hosted by Amazon Web Services EMEA SARL. All data and automatic backups are stored within the EU in the Amazon data center in the Frankfurt region (Germany).
docu tools GmbH expressly reserves the right to change or discontinue the software as well as all specifications of the software product, regardless of whether this is done for technical or operational reasons. The Client must be informed of this in writing, e.g. by email, at least two months prior to such changes take effect.
Obligations of the Client
In order to be able to use the products offered by docu tools GmbH, the Client must register in advance at https://app.docu-tools.com, provide the required data (title, contact, etc.) and specify an organization owner (master user) and their access data. Registration may not be made using incorrect data. The organization owner (master user) may register employees of their own company or third parties contractors as additional users upon its own responsibility, whereby no separate contractual relationship shall arise between such additional users and docu tools GmbH.
The Client undertakes not to use any technical equipment, software or other data that could result in an impairment of the docu tools GmbH system. In particular, the Client is not permitted to make any unauthorized changes to the docu tools software.
The Client shall ensure that their employees and any third parties attributable to them handle the docu tools software with care and protect it from access by third parties. The Client shall be liable to docu tools GmbH for any damage caused intentionally or negligently by the Client or their vicarious agents.
The Client may not misuse the software, may not transfer or sell it to third parties, may not license it to third parties or grant a sub-license for it, may not lend it or transfer it directly or indirectly to third parties by leasing or in any other form, or trade in it in any other way.
If the docu tools software license is not used by a named organization owner (master user) but by various anonymous users who are attributable to the Client, docu tools GmbH shall not provide any services, nor assume liability or warranty for errors, malfunctions or damage that occur in conjunction with the use of the docu tools software (user sharing).
If it becomes necessary to block access to the docu tools software due to events for which the Client is responsible, the Client shall owe the agreed fee and shall also be liable for any ensuing damage.
The Client agrees to be named by docu tools GmbH as a reference Client, whereby docu tools GmbH shall coordinate the use of Client logos, project data, etc.with the Client prior to their publication.
The Client undertakes not to use the docu tools software, services provided or storage space for storing or distributing illegal content.
The Client shall bear sole responsibility for compliance with legal provisions in conjunction with the use of docu tools software.
The Client undertakes not to use the docu tools software in any way that may cause damage to third parties or that may endanger the safety or operation of docu tools GmbH. The Client shall fully indemnify and hold docu tools GmbH harmless from and against any claims of third parties based on any violation of these obligations.
The Client shall inform docu tools GmbH without delay of any changes to its registered office or address or other essential data. Otherwise, any notices from docu tools GmbH to the contact data last disclosed by the Client shall be deemed to have been delivered. Any costs incurred from incorrect information (e.g. in the case of incorrect bookings due to incorrect account details) shall be borne by the Client.
The Client accepts that docu tools GmbH may also send them legally significant notices by email or other electronic media, if necessary by adding an electronic signature (this shall also apply to invoices).
Notices shall be deemed to have been received as soon as the Client can retrieve and acknowledge them under normal circumstances.
Amounts and Payment Terms
All amounts are exclusive of statutory sales tax and any other taxes (unless otherwise stated).
docu tools GmbH offers the following payment options: Bank transfer, Credit card payment or PayPal.
The license to use the docu tools software will be activated for the specified organization owner (master user) within one working day of receipt of the signed and completed order.
In the event of late payment, the Client shall be charged interest on arrears in the amount of 8.5% per annum of the outstanding amount; in addition, the Client shall be charged dunning fees as well as the necessary and appropriate costs for the intervention of lawyers and/or collection agencies.
docu tools GmbH reserves the right to render or deliver its own services only upon full payment or performance by the Client.
Invoices issued by docu tools GmbH shall be deemed accepted if no objection is raised in writing within three months after invoicing and the Client does not take legal measures within an additional two months.
docu tools GmbH shall be entitled to unilaterally and appropriately raise the prices for its products, whereby the inflation rate development in Austria shall apply as a benchmark. docu tools GmbH shall inform the Client of this at least two months in advance.
Client payments that are not earmarked for a specific purpose shall always be credited against the oldest liability.
Any offsetting by the Client against docu tools GmbH receivables shall be excluded. The right of retention on the part of the Client is also excluded.
Duration and Termination
When the docu tools software is used on a monthly basis, the Client may terminate the usage relationship with docu tools GmbH in writing by giving one calendar week's notice to the next contract date (an email to sales@docu-tools.com shall suffice).
Contracts with a minimum term of more than one month can initially be terminated in writing at the end of the respective agreed minimum term, subject to a notice period of two calendar weeks (an email to sales@docu-tools.com shall suffice). Termination on a due date within the agreed term is not permissible and the Client shall be obliged to pay the license price for the entire agreed term. If the contract is not terminated in writing within two calendar weeks of the last day of the minimum term, it shall be extended by another year.
Extraordinary termination of the contract by docu tools GmbH with immediate effect – in which case the Client is not entitled to any claims against docu tools GmbH – shall be possible in particular, under the following conditions:
the Client provides incomplete or incorrect information and/or does not provide the required evidence
the Client is in default of payment to the extent of fourteen days. A grace period is not required
where insolvency proceedings have been initiated against the assets of the Client
where there is reasonable suspicion that services are being misused (including by third parties)
In the event of termination of the contractual relationship, docu tools GmbH shall be entitled and obligated to irretrievably delete all data created within the scope of the contractual relationship after 30 calendar days from the effective date of termination.
Access Blocking
docu tools GmbH may, at its own discretion, temporarily or permanently block access to https://app.docu-tools.com in whole or in part if there are concrete indications that a violation of the proper use of the software (e.g. DDoS attacks, uploading of illegal content) and/or of infringement of applicable laws has occurred, or if other justified interest in blocking access should exist. When deciding whether to block access, the legitimate interests of the Client shall be taken into account appropriately.
In the case of a temporary block, access authorization shall be reactivated after the blocking period has expired or the reason for the access block has ceased to exist.
Permanently blocked access authorization cannot be restored. Persons who are permanently blocked are also permanently excluded from participating in https://app.docu-tools.com and may not log in to https://app.docu-tools.com as an organization owner (master user). This applies to logging in as a master user as well as to logging in as an additional user.
Warranty and Liability
The Client is obliged to undertake all necessary measures to ensure that the services provided by docu tools GmbH are not impaired.
If the Client a defect or should have detected a defect (or potential malfunction), such defect shall be reported within a reasonable period of time, but in any case within 14 days, in accordance with Section 377 UGB (Austrian Commercial Code). Otherwise, the Client shall no longer be entitled to assert warranty claims, claims for damages due to the defect itself or claims based on an error as to the defect-free nature of the item.
The Client shall assist docu tools GmbH free of charge in the rectification of defects within the scope of their own capabilities.
docu tools GmbH shall not assume any warranty for defects, malfunctions or damage due to improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers insofar as such are prescribed, abnormal operating conditions (especially deviations from the installation and storage conditions) or damage incurred during transport.
No warranty or liability shall be assumed by docu tools GmbH for restrictions due to required maintenance work.
docu tools GmbH shall only be responsible for its own services, but not, however, for defects existing in the sphere of the Client (e.g. of the hardware, operating system, network, etc.).
Should the Client call in a third party – for whatever reason – to remedy defects, the Client shall only have claims against docu tools GmbH if docu tools GmbH is unwilling or unable to remedy the defects, even after expiry of a reasonable grace period.
If the Client’s programmers or third parties commissioned by the Client subsequently change or intervene in the docu tools software (changes to the software or required system settings), or if application errors occur on the part of the Client, any warranty, compensation for damages and/or liability on the part of docu tools GmbH shall lapse.
The Client’s end devices and Internet connection are not the subject of services of docu tools GmbH. docu tools GmbH shall not be liable for damage or defects that are not within the sphere of docu tools GmbH (in particular connection errors, disruptions of public communication networks, insufficient system requirements, etc.). docu tools GmbH cannot exclude the possibility that data loss or other impairments may occur during synchronization processes, in particular due to impairments of the Client's Internet connections. docu tools GmbH shall not be liable in such cases, irrespective of any fault on the part of docu tools GmbH or one of its subcontractors.
The Client shall be responsible for any use and/or other activity on https://app.docu-tools.com performed using the Client’s access data. Accordingly, the Client shall keep the access data safe.
docu tools GmbH shall not be liable as a contract data processor for the contents of the Client’s data stored at docu tools GmbH; the Client shall be the owner of their own data and shall be fully and exclusively responsible for its contents.
Insofar as and as long as obligations cannot be fulfilled on time or properly as a result of force majeure, such as war, pandemics, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of the power supply, failure of means of transport, failure of telecommunications networks / data lines or changes in the law, which only affect the docu tools software after conclusion of the contract, this shall not constitute a breach of contract.
In all cases, docu tools GmbH shall be liable only in the event of intent and gross negligence, and only in the event of personal injury also for slight negligence.
docu tools GmbH shall not be liable for third party damages or indirect damages such as loss of earnings or loss of profit. Liability on the part of docu tools GmbH is also excluded for any loss of savings, lost data, consequential damages and damage from claims by third parties.
If liability cannot be excluded on the basis of statutory provisions, liability shall be limited to the amount of 1x the project fee or one year's fee, but in any case to the amount covered by the business liability insurance of docu tools GmbH. If there are several injured parties and the total damage is higher, the claims for compensation of the individual injured parties shall be reduced proportionately.
For the assertion of warranty or liability claims on the part of the Client for whatever legal reason, a period of six months shall apply from the date of knowledge of the defect or damage. All warranty or liability claims on the part of the Client shall be asserted – irrespective of whether the Client is aware of them – at the latest within two years of first activation of the docu tools software license.
Rights of Use to Software Products and Documents
Insofar as the docu tools software is provided to the Client or its use is made possible in any other way, the Client shall be entitled to the non-exclusive, non-transferable, non-sub-licensable limited right, which can be withdrawn unilaterally by docu tools GmbH at any time, to use the docu tools software in unmodified form.
Unless otherwise agreed, the Client shall not be granted any further rights to the docu tools software. In particular, the Client shall not acquire any rights whatsoever to the software, and in particular no trademark, patent or other intangible property rights.
For third party software products provided to the Client by docu tools GmbH, the respective license terms of the manufacturer of each of these software products shall apply with priority.
All documents (in particular software documentation) provided to the Client by docu tools GmbH may neither be duplicated nor distributed in any way, whether for a fee or free of charge.
Copyright
All property rights, copyrights and industrial property rights to the docu tools software (including but not limited to images, photographs, animations, video, audio, music, text and "applets" contained in the software), printed accompanying materials, and all copies of the docu tools software shall be owned by docu tools GmbH or subcontractors of docu tools GmbH. The software is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties. The docu tools software is licensed, not sold.
For the avoidance of doubt it is established that the rights to media stored by the Client in the docu tools software (such as plans, photos, videos, etc.), comments and notes shall remain solely with the Client.
The Client may only use the docu tools applications installed on the end user devices in accordance with the specifications for these services and only in conjunction with the services that are the subject of this agreement.
The Client shall not be entitled to reverse engineer, decompile or disassemble the docu tools software, unless (and only to the extent) applicable law expressly permits this notwithstanding this restriction.
Confidentiality
The Client warrants to docu tools GmbH that they shall treat all trade secrets of which the Client becomes aware in conjunction with this contract and its execution as confidential, and shall not make such secrets available to third parties unless they are generally known, were already known to the assignee without any obligation to maintain secrecy, are disclosed or provided to the assignee by a third party without any obligation to maintain secrecy, have demonstrably been developed independently by the assignee or are to be disclosed on the basis of a legally binding official or judicial decision.
Subcontractors engaged by docu tools GmbH shall not be considered third parties if they are subject to a confidentiality obligation corresponding to the content of this clause.
Any violation of the confidentiality obligation shall result in the Client being liable to docu tools GmbH for all damages incurred as a result thereof.
Other Provisions
Any disposition by the Client of the rights and obligations existing on the basis of the contract shall require the prior written consent of docu tools GmbH. docu tools GmbH shall, however, be entitled to transfer contracts to a third party even without the consent of the Client, in which case these GTC shall continue to apply to said contractual relationship, unless otherwise unilaterally stipulated by docu tools GmbH.
docu tools GmbH shall be entitled to use third parties in whole or in part to fulfill its obligations.
The assertion of a claim for reduction by more than half pursuant to Section 934 ABGB (Austrian Civil Code) against docu tools GmbH shall be excluded.
Should individual provisions of these GTC be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes closest to the invalid provision in meaning and purpose.
The contractual relationship shall be governed exclusively by Austrian law to the exclusion of the conflict of law rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Place of performance and payment for all services and liabilities shall be Vienna. The court having jurisdiction over the subject matter for Inner City Vienna is agreed as the place of jurisdiction.
