General Terms and Conditions
§ 1 Subject matter of the contract, scope of application, components and amendment of the contract
(1) These General Terms and Conditions as a framework contractual basis, together with the individual contracts concluded on this basis for the provision of further services against payment (hereinafter “Individual Contracts”), govern the contractual use by the Customer of the remote access-based Software as a Service services and Data as a Service (hereinafter also jointly referred to as the “Service” or the “Services”) of SkenData GmbH (hereinafter also “SkenData”), Mühlendamm 8b, 18055 Rostock.
(2) Deviating or supplementary terms and conditions of the Customer shall not apply. This shall also apply if a Customer expressly draws SkenData’s attention to such deviating or supplementary terms and conditions.
(3) Amendments to this framework agreement or the individual agreements must be made in text form. This also applies to any deviation from the text form requirement.
(4) SkenData is entitled to amend these General Terms and Conditions at its reasonable discretion. SkenData shall notify the Customer of such changes in text form. The Customer is entitled to object to the changes in text form within six weeks. If the Customer does not object, the amendments shall become effective on the first day of the next month after expiry of the objection period, provided that SkenData has informed the Customer of the right of objection, the objection period and the consequences of not exercising the right of objection. This paragraph shall not apply to changes to the main performance obligations and changes that are so fundamental that the change is equivalent to the conclusion of a new contract.
(5) Should individual provisions of this contract be wholly or partially invalid, the remaining provisions of this contract shall remain unaffected.
(6) The services are intended for use by insurers and banks, their employees and exclusive agents, as well as brokers, insurance consultants, experts, energy consultants, planning authorities and certain public bodies and administrations. As a rule, no contracts are concluded with other customers. The Customer is obliged to ensure that SkenData is correctly and currently informed about the relevant capacity pursuant to sentence 1 of this paragraph. SkenData is entitled to extraordinary termination pursuant to Section 9 (5) if the Customer does not or no longer belongs to the group referred to in sentence 1 of this paragraph. The use of the services by consumers is expressly excluded.
§ 2 Conclusion of individual contracts
(1) This Framework Agreement is aimed at the conclusion of individual contracts for a fee for the retrieval of results, for which SkenData shall set up a booking process within the Services. Insofar as this is agreed upon conclusion of the framework agreement, the Customer shall be entitled to a test version of the essential functions of the respective service with test data specified by SkenData even without booking paid services. SkenData shall be entitled to block the test version two weeks after the conclusion of this framework agreement.
(2) The Customer shall have no claim to the conclusion of an individual contract or, in the event of the conclusion of an individual contract, to certain prices, services, terms or other contractual conditions of individual contracts offered by SkenData at the time of the conclusion of this framework agreement.
(3) The paid services described by SkenData are not a legally binding offer, but a non-binding invitation to submit an offer (invitatio ad offerendum), which the Customer submits by completing the booking process specified in the Service.
(4) The prices quoted are exclusive of statutory VAT, unless otherwise stated.
(5) Insofar as a specific maximum number of results within a specific period has been agreed in individual contracts, the non-utilization of this maximum number by the customer within the reference period shall not entitle the customer to carry over the unutilized results to the next reference period.
§ 3 Scope of services
(1) The subject matter of the service is the contractual service for calculating the agreed result on the basis of data transmitted by the Customer and supplemented by SkenData using mathematical-statistical methods. The specific design of the linguistic and visual presentation of the results and the user interface of the service at the time of the conclusion of the contract is not part of the service. Corresponding samples and descriptions, in particular the description of the user interface in the “FAQ” are for guidance purposes only and may be changed by SkenData. The independent collection of data on site by SkenData, for example by commissioning a building surveyor, is not part of the service. The service does not include individual consulting services such as evaluation meetings.
(2) In order to carry out the calculation, the Customer is obliged to enter an address or geo-coordinate in the input field provided for this purpose in the Service. SkenData supplements this with a variety of different data from different data suppliers.
(3) SkenData shall carry out the calculation in accordance with the agreed quality standards and/or agreed statutory regulations. Even when applying these quality standards and/or legal regulations, it is possible that different accuracies and errors (also in official data) may influence the result within the large amount of source data, some of which use different data models and formats. In addition, statistical values and mathematical methods are used for calculation, with the aim of deriving certain building parameters from geodata. Like any mathematical-statistical procedure, these values may deviate from reality. Depending on the intended use, it is the Customer’s responsibility to check the plausibility of the data used and the result obtained and/or to add further data in addition to the address/geo-coordinate in the input fields provided for this purpose in order to improve the realism of the result and to ensure their accuracy and, if necessary, to point out to third parties how the result was obtained and any inaccuracies and errors.
(4) SkenData is obliged to keep the methods and data on which the calculations are based up to date. SkenData is obliged to keep the Service technically up to date.
(5) The result calculated in accordance with the above agreements shall be made available for download as a .pdf file. SkenData is obliged to store each result for one week after calculation. In the event of the Customer’s right to post-processing, SkenData may not delete the result before expiry of the agreed post-processing period.
§ 4 Supplementary agreements regarding the preparation of energy performance certificates
(1) As a result, SkenData creates an energy performance certificate officially registered with the DIBt for downloading as a .pdf file based on the information provided by the customer in accordance with the Building Energy Act (GEG) as amended. Registration is carried out using a registration number, which is shown on the certificate. The energy certificate is not signed by hand and is valid with the scanned signature of the person authorized to issue the certificate in accordance with the GEG. SkenData can commission EEA Energieberatungs GmbH to calculate or register the energy performance certificate.
(2) The energy performance certificate is drawn up in accordance with the statutory requirements, which, with regard to specific occasions (§ 80 GEG), primarily aim to achieve comparability without wanting to exactly reflect the actual energy consumption.
(3) In the case of the creation of an official energy certificate, the Customer is obliged to determine all data requested for the creation of the energy certificate in a factually correct manner and to provide truthful information. If the data is not provided in full, SkenData shall be entitled to prepare any missing information that affects the assessment of the building in the energy performance certificate in a simplified procedure in accordance with Section 50 (4) of the Energy Performance Act. Transmitted data cannot be subsequently changed and missing data cannot be subsequently supplemented. If the customer becomes aware of the inaccuracy of the data provided after the data has been transmitted, he is not entitled to use the energy performance certificate, even if it is still valid in accordance with § 79 Para. 3 GEG.
(4) There is no obligation to issue an energy performance certificate if legal provisions prevent it from being issued, in particular Section 83 (3) sentence 2 GEG. The customer’s obligation to pay shall remain unaffected by this.
§ 5 Rights of use
(1) The rights of use to the software include the retrieval of results within the framework specified by the software and the provision of the technical framework required for retrieval. This is a non-exclusive, non-transferable grant of rights limited to the term of the framework agreement.
(2) The rights of use to a result include its storage and reproduction for the contractually intended purposes. Insofar as this is necessary for the processing of a contractual relationship with a customer of the customer of this contract, the transfer of individual reproductions to the customer is permitted.
(3) The granting of rights of use to a result does not include the modification of a result. It also does not include the right to reproduce, distribute to third parties, publish, make publicly accessible or create own information services or comparable collections of information using risk information and/or to reproduce, distribute, publish or make publicly accessible the result beyond the stated purposes of use.
(4) The granting of rights to the results is not exclusive. The granting of rights to the results is limited in time to six months from the first calculation of the result. However, in the case of the existence of an individual contract with a specific contract term, the time restriction shall not end before the end of the contract term. The customer is obliged to delete all reproductions after expiry of the right of use, subject to statutory retention obligations.
§ 6 Availability
(1) SkenData shall provide the Services for use via the Internet in the cloud. The Customer is responsible for providing the Internet browser required to access the Services, as well as the other hardware and software environment and telecommunications connections. Compatibility with specific software or specific software versions is not owed. SkenData specifies the current compatibility in each case.
(2) During SkenData’s business hours (Monday to Friday 8:00 – 17:00, excluding public holidays in Mecklenburg-Vorpommern), SkenData is obliged to monitor the functionality of the Services on an ongoing basis and to respond immediately to any disruption.
(3) Within SkenData’s business hours, SkenData is obliged to respond to the receipt of a fault report by the Customer within 60 minutes.
(4) If a malfunction occurs within SkenData’s business hours, SkenData is obliged to remedy a malfunction within the period corresponding to the classification from the time it becomes aware of the malfunction (by receipt of a malfunction report or monitoring), depending on the following classification:
| Priorität | Charakterisierung der Störung | Maximale Zeit von Kenntnis der Störung bis zur Behebung der Störung |
|---|---|---|
| 1 | Erzeugung des vereinbarten Ergebnisses nicht möglich (z.B. unvollständige Berechnung, Anmeldung im Benutzerkonto nicht möglich) | 24h |
| 2 | für die Erzeugung des vereinbarten Ergebnisses relevante Funktionalitäten beeinträchtigt (z.B. Anmeldeprozess erschwert) | 36h |
| 3 | Erzeugung des vereinbarten Ergebnisses nicht beeinträchtigt; übrige Funktionalitäten beeinträchtigt; | 48h |
The maximum time for the rectification of a fault may be exceeded if the fault is not attributable to SkenData. This includes, in particular, disruptions caused by force majeure or intentionally by third parties, provided that SkenData has taken appropriate safety measures.
(5) Outside of SkenData’s business hours, availability of the Services is not owed. SkenData is not obliged to monitor the functionality of the services during this time or to react to or rectify faults. SkenData is entitled to discontinue the provision of the Services in whole or in part outside SkenData’s business hours at its reasonable discretion.
§ 7 User accounts
(1) The use of the services is only possible with a user account.
(2) If agreed in individual contracts, a customer may maintain more than one user account. For this purpose, the Customer’s user account shall be upgraded to an administrator account if agreed in the individual contract, for which the function shall be activated to create the number of dependent user accounts agreed in the individual contract using the procedure provided by SkenData for this purpose. The Customer is obliged to provide the data requested for this purpose correctly and to ensure that it is authorized to enter the data, in particular under data protection law.
(3) The customer is obliged to ensure that his user account or, in the case of several user accounts, each of his user accounts is only assigned to one natural person and is used exclusively by this person. The customer is not entitled to demand or accept payment for the use of the user account from the person assigned to the user account or a third party.
(4) The Customer is obliged to ensure that the access data to his user account or, in the case of several user accounts, to each of his user accounts is kept secret. The Customer is obliged to inform SkenData immediately if there are indications that access data for its user account or one of its user accounts has become known to third parties or that third parties have access to its user account or one of its user accounts.
(5) The Customer is responsible for the usage behavior of all its user accounts, in particular also for the use of services by dependent users. This shall not apply if the usage behavior was brought about by third parties who were able to do so by overcoming SkenData’s security measures.
(6) The Customer is obliged to ensure that the data stored by him in his user account or, in the case of several user accounts, in each of his user accounts is complete, truthful and up-to-date. If SkenData determines that this has not been fulfilled, SkenData shall request the Customer to correct the data accordingly within a reasonable period of at least one week. If the correction is not made, SkenData is entitled to block the user account until the data is corrected and to terminate the contract for cause.
§ 8 Terms of payment
(1) Invoices are issued electronically. Unless otherwise agreed, non-usage-dependent fees (subscriptions) are due for payment at the beginning of the billing period and usage-dependent fees are due for payment immediately upon receipt of the invoice.
(2) SkenData is entitled to block the Customer’s access to the Services or to individual functions of the Services as long as the Customer is in default with payment of the fee.
§ 9 Contract duration and termination
(1) This framework agreement runs for an indefinite period.
(2) If a specific term has been agreed for individual contracts (subscription), the term shall be based on calendar months. If a subscription is concluded within a calendar month, the customer may choose between a retroactive commencement of the contract on the first day of the current calendar month and a commencement of the contract on the first day of the next month. The amount of remuneration remains unaffected by a retroactive start of the contract.
(3) The term of a subscription is automatically extended at the end of the agreed term by the agreed term, but by no more than a further 12 months.
(4) Ordinary termination of the framework agreement or individual contracts is possible up to the 25th of a calendar month with effect from the end of the calendar month. In the case of a specific contract term, this only applies if it is the last calendar month of the contract term.
(5) The right of the parties to extraordinary termination remains unaffected. In particular, SkenData shall be entitled to extraordinary termination:
- in the event that the customer does not have the characteristics specified in § 1 (6) sentence 1;
- if public authorities prohibit the use of the data provided by them for reasons of public security with immediate effect;
- the Customer is in arrears with the payment of the remuneration owed, after SkenData has set a payment deadline of at least one week;
- in the event of a breach of the obligation to assign only one natural person to each user account and to allow only this person to use it;
- in the event of a breach by the customer of the obligation to keep access data confidential.
(6) Notice of termination must be given in text form. SkenData is entitled to offer the Customer a function within the Service for declaring its termination. Such a function also fulfills the formal requirement of this paragraph.
(7) Termination of the framework agreement is only possible if no individual agreement has a contractual term that extends beyond the intended effective date of termination.
(8) In case of doubt, termination shall only apply to individual contracts, but not to the framework agreement.
(9) In the event of extraordinary termination by SkenData, SkenData shall refund any payments already made, provided that the corresponding service has not yet been rendered, unless the Customer has given cause for termination through behavior in breach of contract. In the case of usage-independent fees (subscription), the refund shall be calculated on the basis of the proportion of days of the billing period that have not yet elapsed. This does not apply if the customer has already accessed the agreed maximum number of results; in this case, a refund is excluded.
§ 10 Liability
(1) SkenData shall only be liable for the breach of a material contractual obligation (an obligation that makes the proper performance of the contract possible in the first place and on the observance of which the Customer may regularly rely) and limited to the foreseeable damage typical for the contract. This also applies to the liability of vicarious agents and representatives. Otherwise, SkenData’s liability is excluded.
(2) Paragraph 1 shall not apply to liability:
- due to intent or gross negligence,
- due to injury to life, body and health,
- in the event of fraudulent concealment of a defect by SkenData,
- if SkenData assumes a guarantee or a procurement risk,
- due to default in the event that a specific and binding performance date has been agreed,
- mandatory legal liability.
(3) The Customer shall indemnify SkenData against claims by third parties insofar as these assert claims based on incorrect or incomplete or unauthorized provision of data by the Customer. This shall apply accordingly to fines and claims by third parties due to unlawful use of the services by the Customer, in particular in the event of breaches of data protection regulations.
§ 11 Final provisions
(1) German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be Rostock.
