1.1 These General Terms and Conditions of Capmo (hereinafter "Terms and Conditions") govern the contractual relationship between Capmo GmbH, Sonnenstraße 15, 80331 Munich (hereinafter "Capmo") and you as a customer and contractual partner of Capmo (hereinafter "Customer") with respect to (a) the use of the online platform Capmo via the website at https://capmo.com/de/, via the web application at https://app.capmo.de/ and/or via the mobile application (hereinafter collectively "Platform"); and (b) the services and functionalities offered on the Platform (hereinafter collectively "Capmo Services").
In addition to these GTC, Capmo's current price lists, which are available at https://capmo.com/de/preise, shall apply.
1.2 The Platform and the Capmo Services are exclusively intended for business transactions (B2B), so that the use of the Platform and the Capmo Services is exclusively permitted to entrepreneurs within the meaning of § 14 BGB. By concluding the contract, the Customer confirms that he and the persons authorised by him to use the Platform and the Capmo Services in the form of internal and external employees (hereinafter "Users") use the Platform and the Capmo Services in the exercise of their commercial or independent professional activity.
1.3 The Customer acknowledges and agrees that the use of the Platform and the Capmo Services is subject to the binding provisions of (a) these GTC; and (b) the Platform's privacy policy at https://capmo.com/de/datenschutz. Any deviating or conflicting general terms and conditions of the Customer shall not be recognised by Capmo, unless Capmo has expressly agreed to them.
1.4 With regard to the technological progress, optimisation and further development of the Platform, Capmo reserves the right to amend these GTC, insofar as this is reasonable for the Customer. In this case, the Customer will be notified in advance in writing or text form (e.g. by e-mail) of such changes by Capmo. If the customer does not object to such changes in writing or text form (e.g. by e-mail) within six (6) weeks after receipt of the notification, they shall be deemed accepted by the customer. Capmo will point out this circumstance to the customer in the notification. Any amendments to the platform and the Capmo services remain unaffected by this.
2.1 The use of the Platform and the Capmo Services (including the use by the Users engaged by the Customer), requires that the Customer first sets up and registers an account on the Platform (hereinafter "Customer Account"). This can be done via the following channels:
a) The registration of a customer account can be carried out directly by the customer on the platform by the customer going through the registration process at https://capmo.com/de/ and there (i) providing the required information (company name, contact person, address, e-mail address, billing data and password); (ii) selecting the scope of use of the platform and the Capmo services (i.e. contingent of users and selected modules of the Capmo services); and (iii) subsequently sending the registration request to Capmo and thereby submitting a binding offer (§ 145 BGB). Capmo confirms receipt of the registration request with an automatic e-mail confirmation, which at the same time constitutes acceptance (§ 147 BGB) of the customer's order (offer).
b) The registration of a customer account can also be requested from Capmo by telephone on +49 (0)89 215 40420 or by e-mail to sales@capmo.com/de/. In this case, Capmo shall prepare a corresponding offer (§ 145 BGB) and provide this to the customer in writing or text form (e.g. e-mail). The customer can then accept this offer from Capmo in writing or text form (e.g. e-mail) (§ 147 BGB). After acceptance of the offer by the customer, Capmo shall create the customer account accordingly.
c) The customer has no claim to registration of a customer account. Capmo reserves the right to refuse the customer's registration request at its own discretion.
2.2 In the event that the number of accounts of users of the customer (hereinafter "user account") set up by the customer or at the instigation of the customer by Capmo exceeds the maximum number of possible user accounts in accordance with the user quota selected by the customer, a licence extension of the user quota by the additional user accounts exceeding the user quota shall automatically take place for a fee in accordance with the current price list of Capmo at https://capmo.com/de/preise/. The customer shall be informed of this licence extension in connection with the set-up of these user accounts no longer covered by the original user quota. The customer shall be informed of this licence extension in connection with the set-up of these user accounts no longer covered by the original user quota. The corresponding request of the customer constitutes the offer (§ 145 BGB) and the confirmation by Capmo the acceptance (§ 147 BGB).
2.3 In the event that certain modules and/or functionalities (e.g. add-ons, features, etc.) desired by the Customer are not included in the scope of use of the Platform and the Capmo Services originally selected by the Customer (e.g. exceeding the limitation of the number of blueprints specified in the scope of use), the Customer must expand its scope of use of the Platform and the Capmo Services accordingly at a charge. Clause 2.1 shall apply accordingly.
2.4 Each Customer has the option to set up and use a Customer Account with full access to the Capmo Services as a test access (hereinafter "Test Access") free of charge for a period of two (2) weeks (hereinafter "Test Period") exclusively for testing purposes of the Platform and the Capmo Services. Only one Test Access and Test Period shall be available to each Customer. The Test Period may be extended at the request of the Customer, which shall be at the sole discretion of Capmo. After expiry of the test period, the test access will be automatically blocked. There is no automatic conversion to a contract with costs for the use of the platform and the Capmo services.
2.5 The current version of these GTC can be downloaded from https://capmo.com/de/agb/ in a storable and printable version. In the context of the conclusion of the contract, these GTC will also be sent to the customer in a storable and reproducible form (e.g. as an e-mail or PDF).
3.1 Capmo currently offers on the Platform, depending on the selected scope of use, the Capmo Services available at https://capmo.com/de/preise/ and https://capmo.com/de/produkt/.
3.2 The Platform and the Capmo Services are provided via server systems and hosting services of external service providers who act as so-called order processors (Art. 4 No. 8 DSGVO) for Capmo. Further information on these external service providers can be found in the Platform's privacy policy at https://capmo.com/de/datenschutz/.
3.3 Capmo will use reasonable endeavours to ensure that the Platform and the Capmo Services are available at least ninety-nine (99) per cent of the time on an annual average. This availability does not include any downtime (a) during which the servers of the Platform and the Capmo Services are unavailable due to technical or other problems beyond Capmo's control (e.g. force majeure or fault of third parties); and (b) used for improving the security and integrity of the servers or for necessary maintenance work for the purpose of the correct operation or improvement of the Platform and the Capmo Services.
3.4 Planned maintenance work (e.g. updates) shall - as far as possible - take place outside normal business hours (weekdays Monday to Friday between 09.00 and 18.00). In the event that this is not possible and planned maintenance work may lead to an interruption of the use of the Platform and the Capmo Services of more than thirty (30) minutes within the usual business hours (weekdays Monday to Friday between 09.00 and 18.00), Capmo shall notify the Customer thereof at least twenty-four (24) hours in advance in text form (e.g. by e-mail). At the request of the Customer, these announced scheduled maintenance works can be postponed, insofar as this is reasonable for Capmo.
3.5 Due to the nature of the matter, complete security cannot be guaranteed for data transmission via the Internet. Capmo endeavours to provide adequate protection (e.g. by means of SSL or TLS encryption), but cannot fully guarantee or ensure the security of the content or information transmitted to Capmo by the customer or its users. For this reason, any transmission of content or information to Capmo is at the customer's own risk.
4.1 The Customer is solely responsible for ensuring that he and his Users comply with the technical and system requirements for the use of the Platform and the Capmo Services. This includes in particular
a) the connection to the internet with sufficient bandwidth and latency;
b) for optimal use of the Platform and Capmo Services via the website at https://capmo.com/de/ or via the web application at https://app.p10.tns.company, the use of the Google Chrome web browser in its most recent version; and
c) for the optimal use of Capmo's mobile application, the use of the most current version and the use of an end device with the operating system iOS from version 9 or Android from version 5.
4.2 The user accounts set up by the customer or at the customer's instigation by Capmo must always be permanently assigned to a single named natural person. The user accounts set up are not transferable. A shared use of the user accounts by several persons (so-called account sharing) is not permitted.The customer assures that he obliges all of his users accordingly.
4.3 The customer must carefully protect access to his customer account as well as to his user accounts by the respective owner of the customer or user account keeping his respective password secret. The customer assures that he does not make his password accessible to third parties and does not deposit or store it in a place from which it can be copied or used by other persons. In the event that the customer suspects that another person knows his password, he is obliged to change the password immediately and to inform Capmo accordingly. The customer assures that he obliges all his users accordingly.
4.4 The customer is responsible for all actions that take place via his customer account or the user accounts of his users on the platform or within the scope of the Capmo services, even if the action in question was not authorised or intended by him. The customer is liable for all damage caused by the use of the customer account and the user accounts by himself or by his users.
4.5 The customer assures Capmo that
a) he uses the Platform and the Capmo Services (or parts thereof) exclusively in connection with his own business purposes or allows his users to use them;
b) he will use the Platform and the Capmo Services exclusively in accordance with the provisions of these GTC;
c) it does not take any action that impairs or disrupts the integrity or performance of the Platform or the Capmo Services (or any part thereof, as the case may be) or any Third Party Content;
d) it does not introduce harmful code into the Platform or Capmo Services, such as viruses, Trojans, worms, time bombs, cancelbots or other computer programs that may damage or interfere with, surreptitiously intercept or expropriate any system, program, data or personal information; and
e) it does not violate any applicable law or the rights of third parties.The customer assures that it commits all of its users accordingly.
4.6 The customer is obliged
a) to name a qualified contact person and deputy (name, telephone number and e-mail address in each case) to Capmo, who is authorised to make or immediately bring about all necessary decisions required for the provision of the contractually agreed services and to inform Capmo immediately in text form (e.g. by e-mail) of any changes to this contact person (and deputy); and
b) take reasonable precautions to ensure that the process by which the Customer or its Users access the Platform and use the Capmo Services does not expose it to the risk of viruses, malware or other interference with its computer system.
The Customer agrees that Capmo may name the Customer as a reference customer in its external appearance with the company name, logo as well as with the specific construction or real estate project for which the Platform and the Capmo Services are used (e.g. on the website, trade fair appearances, publications and/or advertising materials etc. of Capmo).
6.1 The Customer shall retain all rights to its Content that it or its Users transmit to Capmo in the context of the use of the Platform and the Capmo Services or that it or its Users post on the Platform (hereinafter collectively "Customer Content"). Notwithstanding the foregoing, it is necessary for the use of the Platform and the Capmo Services that the Customer grants Capmo the limited rights of use to such Customer Content set forth below and ensures vis-à-vis its Users that it can grant such rights accordingly.
6.2 With the transmission of Customer Content to or with the posting of the same on the Platform, the Customer grants Capmo a free, non-exclusive, worldwide right of use to the Customer Content as well as to adaptations of the same exclusively for use in connection with the provision and operation of the Platform and the Capmo Services (or parts thereof) for the duration of the contract. This includes in particular the right to reproduce and publicly reproduce in the online area and in mobile applications as well as the right to edit and use the edited Customer Content to the same extent as the original Customer Content. Capmo's rights of use to this Client Content shall expire as soon as the Client or its Users remove the corresponding Client Content from the Platform.
6.3 With the exception of Customer Content, Capmo is the owner or licensee of all intellectual property in the Platform and the Capmo Services, including the underlying software and systems, as well as the texts, graphics, icons and sound recordings.
6.4 Capmo grants the Customer a simple, non-transferable, non-sublicensable right, limited in time to the term of the contract, to use the Platform and the Capmo Services in accordance with these GTC. Within the scope of the user quota acquired by the Customer, this shall apply accordingly to users of the Customer.
6.5 Except to the extent expressly permitted by applicable law (in particular in accordance with the provisions of Sections 69d or 69e UrhG) or by these GTC, the Customer may not do so without Capmo's prior express written consent,
a) edit, redesign, adapt, translate; reproduce, adapt, publish, decompile, disassemble or reverse engineer the Platform or the Capmo Services (or any part thereof);
(b) to circumvent any technical limitations; or
c) use the Platform or the Capmo Services commercially in a way that competes with Capmo's business model.
The client assures that it commits all of its users accordingly.
7.1 Capmo warrants that the Platform or the Capmo Services are free from material defects. A material defect shall be deemed to be a deviation from the service description, inter alia in the accompanying documentation, to the extent that such deviation nullifies or more than insignificantly impairs the suitability of the Platform or the Capmo Services for the normal use described therein.
7.2 The customer shall support Capmo in the elimination of material defects to the best of its ability. In particular, the customer shall immediately notify Capmo of any material defects in a comprehensible form, stating the information required for the identification of the material defect, in writing or in text form (e.g. by e-mail) and provide Capmo with the necessary documents.
7.3 If Capmo actually detects a material defect after receipt of a notice of material defect from the customer, Capmo shall remedy this within a reasonable period of time. For the period in which the suitability of the platform or the Capmo services is reduced in accordance with section 7.1 sentence 2, the customer shall only pay an appropriately reduced remuneration. If the attempt to remedy the material defect does not succeed within the deadline and if a further attempt to remedy the defect also fails within a further reasonable period of grace to be set by the customer, the customer shall be entitled to terminate the contract.
7.4 The remedy of the material defect may, at Capmo's option, be effected in particular by.
a) Troubleshooting;
b) Recording of a new programme status;
c) pointing out possibilities which influence the use of the Platform or the Capmo Services at most insignificantly and avoid the effects of the material defect; or
d) Provision of a workaround solution which at most has an insignificant impact on the use of the Platform or the Capmo Services.
7.5 Insofar as after a notice of material defect by the customer it turns out that a material defect does not exist and the customer could have recognised this with a reasonable search for the defect, Capmo is entitled to charge the expenses actually incurred by the examination of the notice of material defect.
7.6 The warranty does not apply to any material defects caused by one or more of the following aspects:
a) Failure or malfunction of the telephone or power network or internet;
b) third party software components or services not provided by Capmo;
c) unauthorised adaptations, revisions or reworkings etc. of the Platform or the Capmo Services by the Customer or its Users,
d) unauthorised use of the Platform or the Capmo Services (including access to them) in accordance with these GTC;
e) incorrect operation of the Platform or the Capmo Services; or
f) viruses or the like that have been introduced into the platform by the customer or its user.
This does not apply if the customer proves that the aspects listed in section 7.5 paragraph 1 letters (a) to (f) were not the cause of the material defect.
7.7 Liability for material defects is excluded during free use of the platform or the Capmo services (test access). This does not affect claims for material defects that Capmo has fraudulently concealed.
8.1 Disruptions to the Platform or the Capmo Services must be reported to Capmo by the Customer immediately after they become known, unless the disruption has already been reported elsewhere (e.g. by another Customer).
8.2 Capmo will endeavour to respond to fault reports within Capmo's general business hours (weekdays Monday to Friday from 09.00 to 18.00) within the following time limits (Response Times):
a) In the event of critical disruptions to the availability of the Platform or Capmo Services resulting in a total failure, within four (4) hours.
b) in the event of other disruptions within twenty-four (24) hours.
These response times apply exclusively within the time windows of Capmo's general business hours, are also interrupted by these time windows and continue to run at the beginning of the next time window of Capmo's general business hours (e.g. receipt of a message relating to a critical malfunction on Thursday at 5 p.m. - end of the response time on Friday at 12 noon). If a fault is reported outside Capmo's general business hours, the response time shall start at the beginning of the next time window of Capmo's general business hours (e.g. receipt of a report relating to a critical fault on Sunday at 2 p.m. - end of response time on Monday at 1 p.m.).
8.3 The rectification of the reported malfunction shall remain unaffected by the response times specified in clause 8.2. Capmo will remedy the reported faults within reasonable periods (remedying times).
9.1 The Customer may choose from the following payment methods: (a) bank transfer; (b) SEPA direct debit; (c) credit card; and (d) PayPal. Unless otherwise stated or agreed, payments by invoice must be made within fourteen (14) days of the invoice date. After expiry of this period, the customer shall be in default of payment.
9.2 For the use of the Platform and the Capmo Services, the Customer shall pay usage fees (Original Licence) in advance for the respective minimum term and (if relevant) for the respective extension period in accordance with its specific agreement with Capmo after the conclusion of the contract. Insofar as the customer acquires further licences (licence extension) after the conclusion of the contract for the original licence in the course of the minimum term or (insofar as relevant) the extension period, Capmo shall charge the corresponding usage fee for the licence extension on a pro ratatemporis basis up to the end of the respective minimum term or (insofar as relevant) the extension period of the original licence, which shall also be paid by the customer in advance. Only in the subsequent renewal period of the original licence shall the usage fees for the original licence and the licence extension then be charged for the entire renewal period.
9.3 The prices shown on Capmo's website at https://capmo.com/de/preise/ at the time of the order shall apply. The prices stated there are monthly net prices in euros and are exclusive of the statutory value added tax at the statutory rate applicable from time to time, if applicable.
9.4 No discount shall be granted. Any discounts granted to the customer shall apply exclusively to the original licence for the minimum term; they shall expressly not apply to any renewal periods and/or to any licence extensions.
9.5 The increase of the user quota booked by the Customer and/or other licence extensions shall be subject to Capmo's current price lists. The already existing user quota and the original licence shall remain unaffected. Clause 9.2 sentences 2 and 3 shall apply accordingly.
9.6 The customer receives the invoice from Capmo in electronic form, which is made available to the customer for retrieval in his customer account and/or sent to him by e-mail.
9.7 Capmo is entitled to block the access of the customer and its users to the platform and the Capmo services in the event of default by the customer and if no payment has been made after the expiry of a reasonable deadline set for the customer after the due date. Capmo will inform the customer in advance of such a blocking and set a further reasonable deadline. In this case, the customer shall remain obliged to continue to pay the agreed remuneration plus any default interest. In all other respects, the statutory provisions shall apply in the event of default (in particular §§ 286 and 288 BGB). Capmo shall unblock the access of the Customer and its Users to the Platform and the Capmo Services as soon as the outstanding claims have been settled by the Customer.
9.8 Offsetting by the customer is excluded unless the counterclaim has been legally established, is ready for a decision or is undisputed or includes a claim for compensation for defect rectification costs from the same contractual relationship.
9.9 Rights of retention and/or rights to refuse performance on the part of the customer are excluded - with the exception of undisputed or legally established counterclaims.
10.1 In the case of chargeable services, Capmo's liability towards the customer is limited as follows:
a) Capmo is fully liable for damages in the event of intent or gross negligence.
b) Liability for simple negligence shall only exist in the case of damage resulting from injury to life, limb and health as well as in the case of breach of a material contractual obligation, the fulfilment of which makes the proper performance of the contract possible in the first place or the breach of which jeopardises the achievement of the purpose of the contract and on the observance of which the customer regularly relies or may rely. In the event of a negligent breach of such an essential contractual obligation, liability shall be limited to typical and foreseeable damage.
(c) In the case of Clause 10.1(b), liability shall also be limited to an amount equal to twice the annual usage fees payable under the Contract.
d) Liability remains unaffected insofar as Capmo has fraudulently concealed a defect or has given a guarantee as to quality or insofar as the customer has claims under the Product Liability Act (ProdHaftG).
e) Capmo shall be liable for the recovery of data exclusively to the extent that the Customer or its users have made and secured back-up copies regularly and in accordance with the risk, so that the data can be reconstructed from these back-up copies with reasonable effort. Any further liability for loss of data is excluded.
10.2 Capmo shall only be liable for services provided free of charge in the event of intent or gross negligence.
10.3 Capmo's legal representatives, employees and vicarious agents shall not be liable to a greater extent than Capmo itself pursuant to this Clause 10.
11.1 The customer undertakes to indemnify Capmo against all claims and the lawyer's fees and court costs thereby incurred to a reasonable extent, insofar as this is based on one of the legal or contractual breaches of the customer listed below:
a) The violation of any provision of these GTC by the customer or its user.
b) The complaint by third parties that the customer content transmitted or posted by the customer or its users within the scope of the use of the platform or the Capmo services violates the intellectual property rights of others (e.g. copyrights and ancillary copyrights, patents, trademarks, company logos, work titles or designs etc.), other rights (e.g. personal rights or rights to one's own image etc.) or applicable law.
11.2 In the event of a claim pursuant to Section 11.1, the customer is obliged to provide Capmo, upon request, promptly, truthfully and completely with all information required for the examination of the claims and any legal defence.
11.3 Capmo shall provide the Platform and the Capmo Services free of any third party rights that not only insignificantly restrict or exclude the use of the Platform or the Capmo Services in accordance with these GTC.
11.4 If the use of the Platform or the Capmo Services by the Customer is impaired by third party intellectual property rights in accordance with the provisions of these GTC, Capmo shall have the right to (a) modify, to an extent reasonable for the Customer, either the Platform or the Capmo Services in such a way that they fall outside the scope of protection of the third party; (b) obtain an authorisation that the Platform or the Capmo Services can be used without restriction and without additional costs for the Customer in accordance with the contract; or (c) terminate the contract with the Customer.
11.5 Capmo shall indemnify the customer in the event of an assertion of such claims by third parties within the meaning of Clause 11.4 against legally enforceable costs and amounts of damages, provided that the customer has given Capmo
a) immediately notified the third party in writing of the claim;
(b) relinquishes sole control of the defence and related actions; and
(c) provides the necessary assistance, information and authority to carry out the aforementioned acts.
11.6 This clause 11 shall survive the existence of the Contract.
12.1 The term of the contract shall commence upon conclusion of the contract and shall have a minimum term of one (1) year, which shall be automatically extended by one (1) further year in each case if the contract is not terminated in writing by the Customer or Capmo in compliance with a notice period of at least three (3) months prior to the expiry of the minimum term or the respective term extension.
12.2 The contractual term of any licence extensions pursuant to clause 9.2 shall be based on the contractual term of the original licence.
12.3 The right of the parties to extraordinary termination of the contract for good cause shall remain unaffected. Good cause for a party shall be deemed to exist in particular if
(a) the other party is merged or consolidated, sells all or substantially all of its assets, or makes or suffers a material change in management or control, and that transaction may reasonably be expected to have an adverse effect on the contract;
(b) insolvency proceedings are commenced against the other party;
(c) the other party is liquidated or dissolved; or
d) the other party breaches a material provision of the Contract (including these GTC) and such breach or default is not remedied within thirty (30) days after written notice thereof.
12.4 Notice of termination must be given in writing.
12.5 Upon request, Capmo shall make available to the Customer after termination of the contract the Customer Content posted and held on the Platform at that time in a common format within a reasonable period of time.
13.1 The protection of the Customer's personal data is very important to Capmo. Insofar as Capmo collects or otherwise processes personal data of the Customer or its Users in the course of its activities, this shall be done exclusively in accordance with the provisions of data protection law, in particular the EU General Data Protection Regulation (DSGVO).
13.2 Further information on the handling of personal data can be found by the customer in the platform's data protection declaration at https://capmo.com/de/datenschutz/.
14.1 The parties are obliged to treat confidential information as confidential, not to disclose it to third parties and to take all necessary measures to ensure that confidential information is not disclosed to third parties. Confidential information is all information which (a) has been expressly designated as confidential by the party concerned in writing or in text form; (b) belongs to information protected under Sections 17 and 18 of the German Unfair Competition Act; or (c) where the interest in secrecy results from the nature of the information.
14.2 The confidentiality obligation under Clause 14.1 shall not apply to Confidential Information,
(a) which were already in the public domain at the time of disclosure or become in the public domain thereafter without any failure to comply with the foregoing provisions being a contributory cause thereof;
(b) are expressly disclosed by the data subject on a non-confidential basis;
(c) were already in the lawful possession of the disclosing party prior to disclosure; or
d) subsequently disclosed to the disclosing party by a third party without breach of a confidentiality obligation. The burden of proving the existence of any of the foregoing exceptions under Clause 14.2 shall be on the disclosing party.
15.1 Capmo accepts no liability for the content or privacy practices of websites to which links are provided as part of the Platform or Capmo Services.
15.2 These links should not be construed as an endorsement, approval or recommendation by Capmo of the owners or operators of the linked websites or of any information, graphics, materials, products or services mentioned or contained on the linked websites, unless expressly stated so by Capmo.
16.1 German law shall apply. Insofar as the UN Convention on Contracts for the International Sale of Goods, which has been incorporated into German law, would be applicable to customers abroad, this is excluded.
16.2 The exclusive place of jurisdiction for all disputes arising from or in connection with the business relationship shall be the Munich I Regional Court.
16.3 The contractual language is German.
16.4 Should any provision of this contract be or become invalid, this shall not affect the validity of the remaining provisions. In such a case, the parties are obliged to cooperate in the creation of provisions by which a result that comes as close as possible to the ineffective provision in economic terms is achieved in a legally effective manner. The foregoing shall apply mutatis mutandis to the filling of any gaps in the contract.
Status: October 2020