Terms and Conditions
Last updated: April, 2023
TERMS AND CONDITIONS
of blue auditor GmbH for using the “blue auditor” software, Diesterweggasse 1 / 1A, 1140 Vienna, Austria is hereinafter referred to as the licensor. The users of the “blue auditor” software are hereinafter referred to as licensees.
Preamble
Licensor develops and sells an online software application “blue auditor” worldwide, which
was developed in-house. This program is copyrighted. Licensee acquires rights of use for
the aforementioned software from licensor in order to use it in the broader sense for the
assessment of real estate projects with regard to various aspects of sustainability.
§1. General
(1) All orders and agreements are legally binding as soon as the licensee orders and confirms them as part of the purchasing process. Orders and agreements are only binding to the extent specified in the order confirmation. Orders placed via the official online registration of the licensor are considered to be accepted immediately by the licensee. The licensee’s purchasing conditions are hereby excluded for the legal transaction in question and the entire business relationship.
§2. Subject matter of the contract
(1) The licensor grants the licensee the non-transferable, personal, non-exclusive, locally restricted, temporally (for the duration of this contract) limited license to use the license programs selected by the licensee as follows a. The software environment is made available online by the licensor within which the contract software is to be used. Firmware is expressly not software in the sense of this license agreement.
(2) The licensor allows the licensee to access and use third-party servers via an Internet connection through the use of an Internet browser. The hosting of the contract software on the domain is included in the license price under §5. The software can be accessed via the website www.blueauditor.com.
(3) The online access ensures that the licensor always offers the licensee the software in the current version. If updates are carried out for the update, the licensor informs the licensee about the implementation. Unless there are important reasons, the update is carried out n maintenance windows that are outside of the standard working hours.
(4) While the software is being updated, the licensor is released from the contractual obligations described in this contract.
(5) Additional licenses: If the licensee wants to use rights of use for additional programs or modules at a later date, this will be recorded in additional orders. These programs (modules) are also licensed programs within the meaning of this contract and are subject to its provisions.
§3 Beginning and duration of the usage relationship
(1) When ordering licensed programs, unless otherwise agreed in the service contract, the
contract begins with the date of the first performance and ends with the next main due date
minus one day.
(2) The contracts are concluded on an annual basis and can be properly terminated by both contracting parties on the next main due date.
(3) Any fees already paid will not be reimbursed.
(4) This contract is valid from the date of signature for a period of 1 year.
(5) If the contract is not terminated in writing no later than 30 days before the expiry of the
term, the term is extended by a further main due date.
(6) An effective termination must always be in writing or via the online application.
(7) Example annual license: The client receives a license on an annual basis on June 12,
2021 (date of the performance). License is valid until June 11th, 2022. The next main due
date is June 12th, 2022. At this point in time at the latest, if no written notice has been given,
the license will be extended by one main due date.
§4 Granting of Rights, Access Authorizations
(1) The licensee receives a non-exclusive right limited to 1 year to use the contract software.
(2) The contract software may be used simultaneously by any number of natural persons who act as employees or representatives of the licensee.
(3) The licensee may not rent out the acquired contract software or sub-license it in any other way. This term does not include in particular – but not exclusively – freelance workers for the licensee (e.g. freelancers), affiliated companies, vicarious agents, customers or other agents of the licensee.
§5. License fee
(1) The licensee pays the licensor a fee for the software made available.
(2) The agreed one-year usage price is based on the prices and conditions currently listed on the website or the licensee will be informed of the usage price online during the payment process prior to ordering.
(3) The usage price is based on the number of buildings. For portfolios, ie. for a plurality of buildings, the usage price depends on the total number of buildings.
(4) All prices are net prices, ie. excluding any applicable VAT.
(5) All payments by the licensee are due when this software license agreement is signed to the licensor and, depending on the payment method selected, are due immediately (e.g. credit card payments) or are to be paid to the licensor’s account within 10 days of the invoice being issued.
§6. Availability
(1) The licensee acknowledges that the licensor does not guarantee 100% availability of the software if restrictions or impairments arise that are beyond the control of the licensor. The
licensor can also be exempted from the obligation to perform for a certain period in the case of Section 2 (5).
(2) The licensee is obliged to inform the licensor immediately and in writing of any unavailability.
§7. Warranty
(1) General: The licensee confirms that, prior to the conclusion of the contract, he is responsible for ensuring that the licensed programs meet his requirements and that he is familiar with the essential functional features of the licensed programs. The licensee expressly acknowledges thatn due to the contractual system environment (e.g. browser and browser version), the operating personnel and the licensed programs, trouble-free use of the licensed programs cannot be guaranteed by the licensor alone, as well as that it is not possible according to the state of the art, To create computer software in such a way that it works flawlessly in all applications and combinations.
(2) The licensor guarantees the agreed quality of the contractual software and that the licensee can use the contractual software without infringing the rights of third parties. The appropriate warranty does not apply to defects that are based on the fact that the contractual software supplied by the licensor is used in a hardware and / or software environment over which the licensor has no influence.
(3) Claims from claims for damages and reimbursement of expenses due to defects are excluded.
(4) A material defect exists if the software does not have the contractually agreed quality or is not suitable for the contractually stipulated use.
(5) The licensee entrepreneur is obliged to check the contractual software for obvious defects immediately upon receipt and to notify the licensor of any defects immediately. Otherwise a guarantee for the aforementioned defects is expressly excluded.
(6) In the event of a legal deficiency, the licensor will provide the licensee with a legally flawless option to use the contractual software or modify the contractual software so that the rights of third parties are no longer infringed.
(7) The licensor satisfies the obligation to rectify if it provides updates or updates in the hosted online environment and offers telephone support in the event that technical problems arise when initiating the software application as part of the warranty.
(8) If the licensee suspects a defect in a license program that is to be qualified as a defect under the warranty, he must inform the licensor immediately in writing (e-mail) stating the license program as well as the defect and the data available for error diagnosis and elimination and to provide him with all the documents and data required to describe and diagnose the errors (in compressed form in an e-mail) and to give him all information about the type and origin of the errors. The licensor can demand that the licensee proves errors based on his version of the licensed programs. The licensor carries out the necessary corrections to the licensed programs or takes other measures that it deems appropriate to avoid and / or prevent such errors in the licensed programs at its discretion – and sends the licensee the corrected licensed program and / or a list of the licensed programs taking action.
(9) The licensor does not guarantee for license program versions expressly designated as “previous version” or “beta version” or for errors, malfunctions or damage caused by improper operation, use of unsuitable organizational means, defective contractual system environment or abnormal operating conditions. The licensor is not liable for errors or damage that can be traced back to errors in the operating system or in development tools.
§8. Liability
(1) The licensor assumes no liability for the functions of third-party providers integrated into the licensor’s software products (example: climate risk analysis). However, the licensor will make every effort to always work with the best third-party providers in each area.
(2) In the event of a breach of an obligation that is essential for achieving the purpose of the contract, the licensor’s liability is limited to the damage that is foreseeable and typical for the
type of business in question, but in any case not higher than 1 year license.
(3) There is no further liability of the licensor.
§9. Deletion of data
(1) After termination of the contractual relationship, the licensor must return all data,
documents and data that the licensee has made available to the licensor in connection with
this contract by handing them over or making them available for download.
(2) The licensor must completely delete all customer data stored on the server within 30
days of the termination of the contractual relationship.
§10. Confidentiality
(1) The parties undertake to maintain secrecy / confidentiality.
(2) The licensee must keep secret all information relating to the licensed programs – not readily available to the general public – as well as all agreements regarding the fees to be paid and may only use them in accordance with this contract and mandatory statutory provisions.
(3) Confidential information is all information and documents of the other contractual partner that are marked as confidential or must be viewed as confidential due to the respective circumstances. This applies in particular to information on the operational processes, business relationships, know-how, etc. of the other contracting party. This obligation does not apply to information that is demonstrably already known to the recipient when the present contract is concluded or that becomes known from a third party after the contract has been concluded, without this violating a confidentiality agreement, statutory provisions or, if applicable, official orders. Furthermore, confidential information that has to be disclosed due to legal obligations or by order of a court or an authority is excluded. If it is permissible and possible, the recipient obliged to disclose will inform the other contracting party prior to disclosure and give it the opportunity to counteract this disclosure. The parties undertake to grant access to the confidential information only to those consultants who are either subject to professional secrecy or who have previously been subject to the confidentiality obligation of this contract. The contracting parties will only disclose confidential information to those of their employees who need them for the performance of their contractual obligations and only to the extent that the aforementioned employees need to know for the performance of the present contract. You will oblige your employees to maintain secrecy for the period after they leave your company, insofar as this is permissible under labor law.
(4) The parties agree to keep all confidential information confidential.
(5) A contractual penalty of EUR 5,000 is due for each culpable violation of the aforementioned regulations. This does not affect further claims of the respective injured contracting party.
§11. Rights to the software, intellectual property
(1) The licensee acknowledges that he has no rights of use other than those agreed in this contract and all other rights, in particular copyright and all rights of exploitation and disposal
over the licensed programs and the Ownership of the licensed programs is exclusively held by the licensor or its licensor.
(2) The licensee is not granted the right to change (even for the purpose of correcting errors), adapt or translate the software, to recompile, reverse engineer or develop works derived therefrom.
(3) Nothing in this contract can be interpreted to the effect that the licensee is entitled to receive the source code of the licensed programs.
(4) For the avoidance of doubt, any data provided by the licensor as part of the licensed software shall be used by the licensee strictly for its own internal business purposes. The licensee is expressly prohibited from using, distributing, sharing, or otherwise providing such data to third parties, external stakeholders, or other non-affiliated partners without the prior written consent of the licensor. This restriction also applies beyond the end of the contractual relationship.
§12. Data protection
(1) The contracting parties undertake to comply with their respective obligations in accordance with the applicable data protection laws. The employees of the licensor are subject to the confidentiality obligation according to §6DSG.
§13 Supplementary
(1) The licensee may only assign claims against the licensor to third parties with the latter’s written consent.
(2) Changes and additions to this contract must be made in writing. This also applies to the amendment or cancellation of the written form clause.
(3) General Terms and Conditions of the licensee do not apply.
(4) Austrian law applies to this contract.
(5) The place of performance and exclusive place of jurisdiction is Vienna.
(6) Should individual provisions of this contract be ineffective, this shall not affect the validity of the remaining provisions. In this case, the contracting parties will endeavor to replace the ineffective provision with an effective one that corresponds to the economic interests of both
parties and comes closest to the economic significance of the ineffective clause.
(7) All annexes to this contract, which are also mentioned in this contract, are a binding part
of the contract.