The service (“Service”) offered by upmesh UG (limited liability) (“upmesh”) is a cloud-based platform for plan-based documentation of processes on construction sites. All data collected with this service will be stored in this service during the term of this agreement and can be shared with all project participants (building owner / client, architect, construction management, execution, subcontractor, etc.).
The service can be used as a web application via the umesh or upmesh website or via corresponding mobile applications for Android and / or iOS. All data is processed and stored in the cloud by upmesh and can thus be accessed by different end devices. The functionalities of the service are described at www.upmesh.de.
The use of the service with a limited range of functions is free of charge. Upmesh has defined various price models for professional use of the service, which are described in more detail in the www.upmesh.de/preise pricing model.
Use beyond certain basic functions is only possible for a fee. The user can choose between different price models, for which different payments are due.
Users of a fee-based pricing model have the option of inviting other users who work with the free basic pricing model to their own project (e.g. as a subcontractor). In these projects, however, these users only have restricted roles in terms of functionality.
2. Scope of application
Use of the service is only permitted in accordance with these general terms and conditions of use (“Agreement”). By starting to use the service, the user accepts the validity of this agreement in its current version. The terms of this agreement apply to all upgrades, updates, changes and updates to the service (“Updates”) as well as to all services and information available through the use of the service, provided that no separate regulations are made for these, which then take precedence. This agreement applies exclusively to the relationship between upmesh and the user. Conditions of the user that contradict or deviate from this agreement or statutory provisions do not apply, even if upmesh has not specifically contradicted them.
upmesh can change this agreement at any time. Upmesh will notify the user of the changed agreement, highlighting the changes, with a reasonable period of objection. If the user does not object to the changes within this period and continues to use the service after this point in time, this is deemed to be recognition of the changed agreement. Upmesh will notify the user of this consequence together with the notification of the changed agreement. In the event of a timely objection by the user to the changed agreement, upmesh can terminate the use of the service for the user.
If the service is used by companies or other legal persons, the respective company or legal person is represented by the user and must be attributed to his actions and knowledge.
This agreement between the user and upmesh comes into being when a corresponding app is installed, when the service is used for the first time or, at the latest, when registration for the service is completed.
There is no entitlement to conclude the agreement or to use the service. upmesh can reject any registration request or any attempt at use at any time without giving reasons. The contractual performance obligations of upmesh in the case of agreed fee-based usage remain unaffected.
3. Registration, password
The service can only be used after prior registration. The user must provide certain information (contact details, company name, etc.) (“registration data”) and define a password. This creates a user account for the user.
The user is obliged to provide correct, current and complete registration data and to keep the registration data up-to-date and complete.
The user is obliged to keep his password secret at all times and to keep it safe and to take all other appropriate measures in his area of responsibility to prevent unauthorized access to his user account.
Using the user's registration data, upmesh regards instructions given as instructions from the user when using the service. The user is responsible for all activities that are carried out using his registration data.
The user must notify upmesh immediately if he becomes aware of unauthorized use of his registration data or if he suspects such use.
4. Commissioning of chargeable services
The use of the basic functionalities of the service is not subject to payment. Use of the service beyond certain basic functions is chargeable. The free basic functions as well as the functions and rights contained in the individual price models are described in www.upmesh.de/preise. If the user wants to use functionalities of the service that go beyond the basic functionalities, he must order the service with the corresponding price model from upmesh. The user can only make full use of the functionalities of his commissioned price model in projects created or managed by the user himself or in projects that are created and managed by users of the same or a higher price model.
As a registered user, the user can order the desired service via the electronic order function provided by upmesh. The ordering process takes place in three steps: In the first step, the price model desired by the user and the minimum term (monthly or yearly) are selected. In the second step, the user's data is confirmed and, if necessary, supplemented and the payment method selected. In the third step, the user can carry out a final check of the order and send it bindingly to upmesh by pressing the order button. With this he is submitting a binding offer. The user then receives an email confirmation of receipt and acceptance of the order. The contract is concluded when this email is received.
After prior agreement with upmesh, an order can also be placed outside of the electronic order function offered by upmesh by submitting an order in writing with the necessary information and sending a corresponding written order confirmation from upmesh to the user.
upmesh grants the user a simple, non-exclusive, non-transferable, free of charge right limited to the term of this agreement to use the service for the purposes for which it is made available by upmesh according to this agreement. The scope of use is limited to the scope described in the upmesh price model.
In particular, the user may not copy, change, adapt or create derivative works from the service and the components used for its provision, publish, disclose, sell, rent, lease, lend, distribute, make available online, sublicense, or to a third party Make available without upmesh having given its prior written consent. He may not remove or change any copyright notices or other references to intellectual property. Access to source codes is not included in the license. The user may not decompile, disassemble or reverse engineer components of the service (reverse engineering), unless otherwise stipulated by mandatory statutory law or this agreement.
Use with basic functionality (“Basic” price model) is free of charge. Upmesh reserves the right to display advertising banners to users of this pricing model within the WebApp and app.
The use of the service in all other price models is chargeable. The price model offered by upmesh at the time of the order confirmation applies, www.upmesh.de/preise, and the remuneration set for the respective price model. The remuneration applies plus the applicable statutory value added tax.
upmesh can change the remuneration for the service by unilateral declaration with a notice period of at least one month and will inform the user in this case in writing. If the user has commissioned the service with an annual termination option, a change in the remuneration is only possible with a notice period of 3 months and in the event of a price increase the user can terminate the agreement with effect from the entry into force of the price increase. The user can only exercise the right of termination in writing within one month of receipt of the notification of the price increase. If the user does not exercise his right to cancel, the price change will automatically take effect at the announced time.
Invoices are issued in advance for the agreed term (month / year). Invoices are due immediately upon receipt and payable within 10 days. After the payment period has expired, the user is automatically in default.
7. User Obligations
The user has the option of saving user data (e.g. plans, photos, drawings, technical descriptions, emails, documents, comments, voice messages, videos, etc.) via the service. The user grants upmesh an irrevocable, worldwide, free, transferable, time-unlimited, sub-licensable right to use, duplication, distribution, translation and publication of this user data, but exclusively for the purpose of providing the service in accordance with the contract (e.g. sharing the data with other project participants ).
Insofar as the user makes user data available to upmesh when using the service (e.g. uploads it to the memory provided by upmesh), the user guarantees in particular that 1. The user has the rights required for the provision of the service by upmesh and any necessary rights Has obtained consent;
The use of the user data required for the provision of the service by upmesh does not violate any copyrights, trademark rights, patent rights, trade secrets or other rights of third parties (e.g. data protection law or other personal rights);
The transmission of user data and their contractual use by upmesh to provide the service do not violate any laws or rights;
The user data does not contain any viruses, Trojans or other malware. In particular, the data will not contain any pornographic, violence-glorifying or inciting content. The user will inform upmesh immediately as soon as there are indications of a violation of the warranties described above.
The user is responsible for the user data and other data processed with the service. upmesh is not obliged to check user data for legal violations. However, upmesh is entitled to refuse to process user data by the service or to delete transmitted user data if, at upmesh's discretion, there are indications that their use could violate this agreement or lead to legal violations.
upmesh may block access to the service for the user at any time if the user violates his obligations under this agreement (in particular the guarantees in section 7.2).
8. Links to other websites or services (hyperlinks)
Elements of the service or the upmesh website may contain hyperlinks to third party websites. upmesh assumes no responsibility for the content of these websites, nor does upmesh adopt these websites and their content as its own.
9. Liability for legal and material defects
upmesh assumes no warranty or guarantee that the service 1. is compatible with the user's hardware or software;
Is available without restriction at any time or at certain times;
Meets the requirements of the user or other special performance or functional requirements that are not agreed in this agreement;
No data loss caused;
Is free of viruses, malware, malfunctions or other security-endangering components.
For their own protection as well as to protect the service, the user will use appropriate and up-to-date security devices (firewall, virus scanner, etc.).
If the user discovers a defect in the service, he will inform upmesh immediately and describe the defect and the circumstances surrounding it in as much detail as possible. upmesh will endeavor to remedy the defect within a reasonable time. Only after two failed subsequent improvements can the user (in the case of paid use) demand an appropriate reduction in the remuneration for the respective calculation period or terminate the contract if its continuation is no longer reasonable. Further claims by the user in the event of defects are excluded.
Nothing in this agreement excludes upmesh's liability to the user for personal injury, willful intent or fraudulent misrepresentation or other cases of mandatory liability that cannot be excluded by law.
In the event of a slightly negligent breach of essential contractual obligations, upmesh is only liable up to the amount of the contract-typical and foreseeable damage. A material breach of contract occurs when the breach of duty relates to an obligation that the user trusted and was entitled to trust to be fulfilled.
Upmesh's liability for negligent breaches of contractual obligations towards the user is also limited to an amount of EUR 1,000 per calendar year. Section 9.4 remains unaffected.
If the service is used free of charge, upmesh's liability to the user is completely excluded, except in the cases mentioned in Section 9.4.
The user indemnifies upmesh, its executives, employees and subcontractors from all claims and claims of third parties as well as from all losses, damages, costs and expenses, including reasonable legal defense costs, resulting from a use of the service not in accordance with this agreement or from a violation of laws or rights Third parties through user data, the user or a person to whom the user authorizes the use of the service, and which the user is responsible for.
11. Support and Updates
upmesh offers the user support in accordance with the selected price model. Upmesh's obligations to remedy defects in accordance with Section 9 remain unaffected.
12. Term and Termination
This agreement comes into force at the point in time described in Section 2.4 and applies to the respective contracted term in the case of paid use. In the case of non-chargeable use, the agreement is valid for an unlimited period.
If the service is used for a fee, termination is only possible at the end of the respective contracted term. If there is no termination, the term is automatically extended by the period originally assigned (ie one or twelve months). With a monthly term, the notice period is 14 days to the end of the month, with an annual term, 30 days to the end of the contract year. If the user uses the service free of charge, the agreement can be terminated by both parties at any time with effect from the end of the current month.
The right to terminate this agreement for good cause remains unaffected in any case.
After termination of this agreement, the user must permanently delete the user data recorded in the service, provided they are not used by other users with an ongoing agreement. Projects that are managed by the user must be transferred to other users or deleted. If the user does not undertake the deletion or transfer himself, upmesh reserves the right to delete the projects managed by the user (and the related user data) after the agreement has ended. The user can use the reporting functions offered in the service before the agreement is terminated to download a copy of his user data and save it on his system or print it out.
upmesh reserves the right to modify the service in whole or in part at any time without notification. Upmesh will ensure that users with a paid price model can continue to use the promised functions.
13. Confidentiality and Data Protection
The user undertakes to keep secret for an unlimited period of time all information that becomes known to him in connection with this agreement and the services provided under it, which are designated as confidential or are recognizable as confidential or business secrets due to other circumstances and only for the purposes of this Agreement to use.
upmesh stores and processes personal data transmitted by the user exclusively to provide the service and in compliance with the applicable data protection law. The user must ensure that any transfer of personal data to upmesh (especially as part of the user data) takes place in accordance with the applicable data protection law. If required, upmesh is generally ready to conclude an order data processing agreement with the user in accordance with Section 11 BDSG. A contract template can be downloaded from www.upmesh.de/datenschutz.
upmesh expressly points out that user data is saved using cloud services provided by upmesh's subcontractors. A storage of user data at locations outside the EU and the EEA does not take place.
Insofar as upmesh collects and processes personal data within the scope of the use of the service by the user, this is done in accordance with the data protection declaration, which is available at www.upmesh.de/datenschutz.
Should any provision of this agreement prove to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this agreement will not be affected. In place of the invalid provision, the effective and feasible provision that comes as close as possible to what the parties legally and economically intended shall apply retrospectively.
Additional agreements must be made in writing.
Insofar as the written form is required for declarations in this agreement, a declaration in text form is sufficient. This does not apply to terminations according to Section 11, for which the statutory written form according to Section 126 (1) BGB applies.
German law applies to the exclusion of conflict of laws and the UN sales law. If the user is a merchant within the meaning of the Commercial Code, the place of jurisdiction is Ibbenbüren.