- Scope of application
- These General Terms and Conditions (hereinafter “GTC“) apply to the provision and use of the Cosuno platform as a software-as-a-service (SaaS) (hereinafter and specified in Section 2.2 the “platform“) by Cosuno Ventures GmbH, Brunnenstraße 24, 10119 Berlin (hereinafter “Cosuno“). The services offered by Cosuno are exclusively directed to business persons within the meaning of § 14 BGB (hereinafter “Customer“, together with Cosuno the “Parties“).
- Deviations from these GTC shall only be deemed agreed if they have been expressly confirmed in writing by Cosuno. In particular, the mere failure of Cosuno to object to general terms and conditions of the customer shall not result in these being deemed agreed. This shall also apply if Cosuno performs services without reservation in the knowledge that the customer’s terms and conditions contradict or deviate from these General Terms and Conditions.
- Cosuno may notify the customer of an amendment to these GTC for good cause, in particular in the event of changes in the legal situation, supreme court rulings, the platform or market conditions, indicating the material changes. The amended GTC shall be deemed to be agreed if the customer has not objected to the amendment within one month after receiving the notification and Cosuno has specifically pointed out this consequence to the customer when notifying him of the amendments. Changes to the service content agreed with the customer require the express consent of the customer, irrespective of the above provisions.
- Conclusion of contract, purpose of contract
- Cosuno offers a free 7-day trial version (the “Trial Version“) as well as a paid full subscription to the platform.
- A contract for the free use of the trial version is concluded as follows: Within the scope of the registration to the platform, the customer confirms the validity of these GTC for the contractual relationship with Cosuno. Online registration for the platform without inclusion of these GTC is not possible. By clicking on the registration button, the customer makes an offer to Cosuno to conclude a free usage contract (if the customer only subscribes to the trial version, the “contract“) based on these GTC. The contract shall only be concluded when Cosuno has accepted the customer’s offer by sending an acceptance email.
- A contract for the paid full subscription to the platform (if the customer subscribes to the paid full subscription to the platform, the “contract“) shall be concluded between the parties by mutual signature of the separate offer of Cosuno.
- Through the platform, contractors can intelligently manage the engagement of subcontractors in construction projects (the “contract“). The platform includes in the paid full subscription in particular the following functions usable by the customer:.
- Planning the use of subcontractors on construction projects of the customer
- Submitting bids to subcontractors to work on customer’s construction projects
- Communicating with subcontractors on advertised bids
- The scope of services of the trial version is determined by Cosuno at its sole discretion. The customer has no right to the retention of certain functions or the certain design of the platform by Cosuno.
- Use of the platform by the customer.
- The customer may use the access to the platform exclusively himself for the purpose of the contract. The customer undertakes to take appropriate security precautions to ensure that access to the platform is not used by unauthorized persons. Such security precautions include, in particular, the use of a secure password.
- The customer may only post data, texts, images and other content on the platform which he is entitled to use accordingly and which does not violate applicable law or the rights of third parties. Cosuno is entitled to block content posted by the customer if there is a reasonable suspicion that this content is illegal, violates these GTC or infringes the rights of third parties.
- The customer shall indemnify Cosuno against all claims of third parties, in particular claims due to copyright, competition, trademark and data protection law violations, which should be raised against Cosuno in connection with the use of the platform by the customer. This indemnification shall also include the reimbursement of reasonable costs incurred or incurred by Cosuno as a result of a legal prosecution or defense.
- For optimal use of the platform, Cosuno advises the use of the browser types Google Chrome, Mozilla Firefox or Internet Explorer in their respective current version as well as the admission of cookies in the settings of the browser used. If these technical requirements are not met by the customer, restrictions on the usability of the platform may occur under certain circumstances. Cosuno is not responsible for such restrictions.
- Contracts concluded via the platform.
- Customer is free in the paid full subscription (and – if the trial version contains this feature at the given time – in the trial version) of the platform to conclude contracts with subcontractors for cooperation in construction projects via the platform (“Subcontract Agreement”). The test version contains Parties to the Subcontractor Agreement are exclusively the Customer and the respective subcontractor; Cosuno is not a party to the subcontractor Agreement. The content of the subcontractor Agreement shall be governed exclusively by the agreements between the Customer and the respective subcontractor. It is thereby the sole responsibility of the customer and the respective subcontractor to comply with legal provisions in the award and pricing of subcontractor contracts.
- The performance of the contractual obligations under the subcontract agreement is the sole responsibility of the parties to the subcontract agreement. Cosuno shall not owe the performance of any party’s obligations under the subcontract agreement, nor shall Cosuno assume any warranty, guarantee or liability with respect to the subcontract agreement.
- Special Services of Cosuno.
- If agreed between the Parties, Cosuno shall provide individual special services to the Customer in addition to the provision of the platform, e.g. in the area of setup assistance or software customization (the “Special Services“).
- Cosuno shall provide the Special Services in accordance with the agreed terms and conditions and shall receive the remuneration specified in the offer or other individual agreement between the parties.
- Cosuno does not owe the establishment and maintenance of the data connection between the customer’s IT systems and the handover point. “Transfer point” is the router output of the data center of Cosuno or its subcontractor through whose server the platform is operated. Cosuno is not responsible for malfunctions beyond the handover point. The customer is responsible for the procurement and maintenance of the hardware and connections to public telecommunication networks required by him. The customer shall bear the costs of setting up the online connection and maintaining it on the customer’s side. Cosuno shall not be liable for the security, confidentiality or integrity of data communication conducted via third party communication networks. Cosuno shall also not be liable for disruptions in data transmission that have their cause in technical errors or configuration problems on the part of the customer.
- The availability of the platform owed by Cosuno is in the paid full subscription of the platform at least 99% in the contract year average.
- The customer has no claim to an uninterrupted, complete or trouble-free usability of the platform at any time. Cosuno shall only owe the suitability of the platform for the purpose of the contract within the scope of the availability pursuant to Section 5.2. The parties therefore understand “availability” to mean the essential technical usability and accessibility of the functions of the platform. Times during which availability of the platform is not given due to a fault or for other reasons shall be deemed “downtimes“. “Customary business hours” are Monday to Friday (public holidays in Berlin excluded) between 09:00 and 18:00.
- When calculating availability, downtimes are not taken into account.
- in which the platform cannot be accessed due to technical or other problems for which Cosuno is not responsible (force majeure, fault of third parties, errors in the IT systems of the customer or third-party service providers acting on his behalf, etc.);
- which are due to a breach of the customer’s obligations to cooperate, in particular a delayed or incomplete transmission of an error message;
- which are incurred for maintenance work during Usual Business Hours of up to five hours per month; or
- which are incurred for maintenance work outside Usual Business Hours of up to twenty hours per month
- In the trial version, Cosuno does not owe the customer any specific availability of the platform. Cosuno is free to prevent the customer’s access to the platform at any time or to take the platform off the market.
- Operation and modifications of the Platform.
- Cosuno endeavors to ensure that the platform is always state of the art. Cosuno shall be entitled to periodically perform and/or introduce updates, new versions or upgrades of the platform (hereinafter uniformly referred to as “Updates“) in order to adapt the platform to new technical or business needs, implement new features or make changes to existing functionalities of the platform.
- If and to the extent that an Update substantially restricts the Customer’s use of the platform for the purpose of the agreement (such Update hereinafter referred to as a “Substantial Change”), Cosuno shall inform the Customer in the paid full subscription to the platform in writing about the introduction of the Substantial Change no later than four (4) weeks before it takes effect (a “Change Notice“). If the Customer does not object to the Material Change within a period of two (2) weeks from receipt of the written notice of change (the “Notice of Objection“), the Material Change shall become part of the contract concluded with the Customer. Cosuno shall inform the Customer with each Amendment Notice of its rights under Section 6.2, in particular (i) the right to object, (ii) the period of time provided for this purpose and (iii) the legal consequences of an objection to the Material Amendment not declared in due time.
- If the customer objects to the Material Modification, Cosuno shall continue to make the platform available to the customer for use without the Material Modification, unless this is impossible for technical or business organization reasons or unreasonable for Cosuno. In such a case, the customer shall have the right to terminate the contract extraordinarily for good cause within a period of four weeks (the “Exercise Period“). If the customer does not exercise its right of termination, the Material Modification shall become part of the contract. The Exercise Period shall commence as soon as Cosuno has informed the customer in writing of (i) the non-suitability of the contract to continue without the Material Modification, (ii) the special right of termination and (iii) the legal consequences of the expiry of the Exercise Period.
- Compensation and payment terms.
- The use of the trial version is free of charge.
- The remuneration for the use of the platform in the paid full subscription by the Customer and the respective payment terms shall be governed by the offer signed by the Parties, incorporating any amendments permitted under these GTC (the “Offer“).
- All fees and prices shown by Cosuno are net prices plus statutory value added tax. The remuneration shall be paid annually in advance, unless otherwise agreed (in particular in the offer)
- Cosuno shall be entitled to adjust the agreed remuneration annually in an appropriate amount for future payment periods to compensate for increases in personnel and other costs. Cosuno shall notify the customer of these price adjustments and the effective date of the price adjustment in text form no later than four (4) weeks before they take effect. If the price increase amounts to more than 7% of the previous price, the customer may object to this price increase within a period of two (2) weeks from receipt of the notification. If the customer objects to a change within the meaning of this clause 11 in due form and time, the contractual relationship shall be continued under the previous conditions. Cosuno reserves the right in this case to terminate the contractual relationship extraordinarily with a notice period of one month to the end of the month.
- If agreed between the parties, Cosuno shall provide services in addition to the provision of the platform, e.g. for the adaptation of the platform to the individual needs and wishes of the customer (the “Services“). An agreement on this is reached by selecting the relevant service contents in the context of signing the offer. Cosuno shall provide the Services in accordance with the provisions of the Offer and shall receive the remuneration provided for in the Offer in return. If the offer does not contain any provisions regarding the period for the provision of the services, the parties shall reach a separate agreement on this.
- The customer is obligated to provide all acts of cooperation required for the services (e.g. communication of technical information on the customer’s IT systems)
- Warranty for defects in quality and title.
- Cosuno warrants that the platform is not afflicted with any defects in quality or title (hereinafter “defects“) that more than insignificantly impair the suitability of the platform for the purpose of the contract. Insignificant impairments shall not be deemed to be a defect.
- The customer is obliged to notify Cosuno immediately of any defects that occur. Cosuno will eliminate defects in the platform that have occurred and have been properly reported within a reasonable period of time.
- The strict liability according to § 536 a para. 1 BGB for defects of the platform already existing at the time of the conclusion of the contract is excluded, unless the defect concerns a characteristic of the platform that is essential for the purpose of the contract.
- Cosuno shall be liable for damages in the event of (i) intentional or grossly negligent fault on the part of Cosuno or its legal representatives or vicarious agents, (ii) negligent breach of an essential contractual obligation (cardinal obligations) on the part of Cosuno or its legal representatives or vicarious agents, but limited to typical damages, foreseeable at the time of the conclusion of the contract, or (iii) negligence of Cosuno or its legal representatives or vicarious agents causing injury to life, body or health, (iv) or mandatory legal liability of Cosuno or its legal representatives or vicarious agents.
- A possible contributory negligence of the customer shall be credited. Cosuno shall be liable in particular for the recovery of data only to the extent that the customer has taken all necessary and reasonable data backup precautions and has ensured that the data can be reconstructed with reasonable effort from data material that is kept ready in machine-readable form.
- This liability provision is final (item 4 remains unaffected). It shall apply with regard to all claims for damages, irrespective of their legal basis, in particular also with regard to pre-contractual or ancillary contractual claims. It shall also apply in favor of Cosuno’s legal representatives and vicarious agents if claims are asserted directly against them.
- The customer is obligated to immediately notify Cosuno in writing of any damages within the meaning of the above liability provisions or to have Cosuno record such damages so that Cosuno is informed as early as possible and may still be able to mitigate damages in cooperation with the customer.
- Use in breach of contract, damages.
- For each case in which a contractual service is used without authorization in the customer’s area of responsibility (e.g. if the customer registers for a further test version after expiration of the first test period in violation of the contract), the customer shall in each case pay damages in the amount of the remuneration that would have been incurred for the contractual use within the framework of the minimum contract period applicable to this service. The customer reserves the right to prove that the customer is not responsible for the unauthorized use or that there is no damage or significantly less damage.
- Cosuno remains entitled to claim further damages.
- Claims of the customer based on the breach of an obligation not consisting in a defect shall become statute-barred within one year beginning with the accrual of the claim, unless there is intent or gross negligence. This does not apply if the customer’s damage in question is personal injury. Claims for personal injury shall become time-barred within the statutory limitation period.
- Rescission or reduction are ineffective if the claim for the performance or the customer’s claim for subsequent performance is time-barred.
- Rights of use.
- The platform is protected by copyright. The sole owner of all intellectual and industrial property rights is Cosuno. Cosuno warrants that the general operation of the platform is legally permissible, does not violate any laws, regulations or guidelines and, in particular, does not infringe any third-party rights. Cosuno undertakes to indemnify the customer against justified claims of third parties due to the operation of the platform and to compensate the customer for any damage incurred in this context (including reasonable costs of legal defense) in accordance with clause 9.
- The customer is granted the non-transferable, non-exclusive right, limited in time to the duration of the contract, to use the platform via the Internet for the agreed contractual purpose. The customer shall not be granted any rights beyond this. In particular, the customer is not entitled to have the platform or data of Cosuno used by third parties, to make them accessible to third parties or to use them in any other way outside the purpose of the contract.
- Set-off, retention, reduction.
- The customer has a right of set-off, reduction and/ or a right of retention against Cosuno only if his respective counterclaim has been legally established, is undisputed or has been acknowledged by Cosuno.
- In addition, the customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship.
- The customer’s right to reclaim remuneration actually not owed remains unaffected by the restriction of item 13.1.
- Term, Termination
- The term of the contract and the terminability in the paid full subscription to the platform are governed by the provisions of the offer. If the offer does not contain any information on the term or terminability, the term of the contract shall be one (1) year and shall be automatically extended by one (1) additional year if the contract is not terminated in writing by one of the parties in compliance with a notice period of at least three (3) months prior to the expiration of the term.
- The right of both parties to extraordinary termination of this contract for good cause remains unaffected. An important reason exists for the respective other contracting party in particular if:.
- one of the parties seriously breaches its contractual obligations and therefore the other party can no longer reasonably be expected to adhere to the contract;
- the customer is in arrears with the payment of due fees or other remunerations by more than two (2) months even after the expiry of a reasonable period set by Cosuno to remedy the situation;
- insolvency proceedings are applied for, opened or rejected in respect of all or part of the assets of a party;
- in the case of one of the parties a ground for insolvency within the meaning of §§ 17 – 19 InsO is present;
- the financial circumstances of one of the parties deteriorate to such an extent that proper performance of the contract can no longer be expected, even if there is no reason for insolvency within the meaning of §§ 17 – 19 InsO.
- Any termination requires the written form.
- The contract for the use of the trial version of the Platform has a term of 7 days (the “Fixed Term“). The contract may be terminated by either party at any time without notice. After the end of the fixed term, the contract ends automatically. A transfer to the paid full subscription of the platform occurs only upon conclusion of a corresponding paid contract. The customer is not entitled to register again for the use of the trial version after the end of the fixed term.
- Cosuno points out to the customer that he himself is responsible for the timely backup of his data files before termination of the contract. Cosuno will undertake reasonable cooperative actions in this context within the scope of the paid full subscription to the platform. For technical reasons, Cosuno cannot generally guarantee access by the customer to his data files after termination of the contract. During the term of the contract, Cosuno will not delete any data fed into the platform by the customer, unless Cosuno is legally obligated to do so (e.g. due to infringements of rights by the data fed in by the customer)
- The parties undertake to keep secret for an unlimited period of time all confidential information of which they become aware within the framework of the contractual relationship and which has already come to their knowledge and not to disclose it – unless this is necessary to achieve the purpose of the contract – or to use it in any other way. Confidential information is all information and documents of the respective other party, which are marked as confidential or are to be regarded as confidential from the circumstances, in particular information about operational processes, business relationships, further company and business secrets, know-how, all work results as well as the business model of Cosuno.
- Excepted from the obligation are such confidential information,.
- which was demonstrably already known to the respective other party during the initiation of the contract or subsequently becomes known from a third party, without thereby violating a confidentiality agreement, statutory provisions or official orders;
- which were publicly known, insofar as this is not based on a breach of this Agreement;
- that must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the party obliged to disclose shall inform the other party in advance in such case and give him the opportunity to oppose the disclosure.
- Any disclosure of confidential information to third parties requires the express written consent of the respective other party, unless other arrangements are expressly made.
- The parties shall ensure by suitable contractual agreements that the employees and contractors working for them shall also refrain from any own utilization or disclosure of confidential information for an unlimited period of time. The parties shall disclose confidential information to employees and contractors only to the extent that they need to know the information for the performance of this contract.
- The customer agrees that Cosuno may publish the cooperation of the parties for advertising purposes, e.g. in the form of a press release, a mention on the homepage or on social media profiles. The Customer also permits Cosuno to use the Customer’s company logo in this context. The customer may revoke its consent pursuant to this Clause 15.5 by written notice to Cosuno at any time with effect for the future.
- Data protection, data use.
- Cosuno treats personal data of the customer according to data protection standards and specifications. Cosuno is a processor in the sense of Art. 28 DSGVO only in relation to such customers who feed personal data of their customers into the platform. The customer is obliged to notify Cosuno in advance of the intention to feed personal data of its own customers into the platform; in this case, the parties are obliged to conclude a separate order processing agreement.
- Cosuno is entitled to make data fed into the platform by the customer to its subcontractors accessible to other customers within the framework of the platform, provided that this is not personal data and no business secrets of the customer are affected.
- Cosuno is entitled to use data fed into the platform by the customer regarding its contractual relationships with subcontractors in anonymized or aggregated form. Cosuno will do so in particular to improve existing functions of the platform or to provide new functions of the platform.
- Closing Provisions.
- Should individual provisions of these GTC be or become invalid or unenforceable in whole or in part, or should they not contain a provision that is necessary in itself, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision or to fill the regulatory gap, the legally permissible provision shall be deemed to be agreed retroactively, which corresponds as far as possible to what the parties would have wanted or would have been agreed by the parties according to the sense and purpose, if they had considered the invalidity or impracticability of the relevant provision or the regulatory gap.
- If these GTC refer to a written form or communication, the sending of an e-mail shall also suffice in each case.
- The contract and the other contractual documents are subject to the laws of the Federal Republic of Germany, excluding the German conflict of laws and the UN Convention on Contracts for the International Sale of Goods.
- For all disputes arising from or in connection with the contract or the GTC, including their validity, the Potsdam Regional Court shall have exclusive jurisdiction, to the extent permitted by law.
16 June 2021