General conditions for the use of the BIMWORX Internet platform (GTC)
Status: 29.08.2018
"BIMWORX" hereinafter refers to the following service (including all applications) and/or the operator of the service, BIMWORX GmbH.
The BIMWORX service is provided via websites on the Internet (e. g. bimworx.net) and under various sub-domains and aliases of these domains and via mobile applications (so-called “apps";), background applications, web services and integration into third party websites (e. g. via iFrame). All websites, subdomains, aliases, mobile applications, background applications, web services and integration into third party sites on which BIMWORX is available are hereinafter referred collectively as the “BIMWORX websites".
The applications of the BIMWORX service include, in particular, contact and communication forums (hereinafter referred to as “social network";), for which the user can purchase a membership. In the future, the offer will be extended by further applications, such as an event calendar, tender database, job exchange and BIM component library. These General Conditions for the use of the BIMWORX service regulate the contractual relationship between the user and BIMWORX.
Regarding the use of individual applications, additional conditions may apply in addition to these general conditions for the use of the BIMWORX service (e. g. the code of conduct for group moderators or the comment rules for BIMWORX News). In the event of a conflict, the provisions of the additional conditions for use of the relevant application shall prevail over these General Conditions for Use of the BIMWORX Service, unless this precedence is excluded in the additional conditions for use of the relevant application.
The general conditions for the use of the BIMWORX service and any additional conditions for the use of individual applications are hereinafter collectively referred to as “GTC".
The contract is concluded with BIMWORX GmbH, Keffelker Straße 26, D-59929 Brilon. Further contact details, the commercial register data and the name of an authorised representative of BIMWORX GmbH can be found in the imprint.
1 Subject matter of the contract and principles of use of BIMWORX
General
1.1 BIMWORX is a service whose purpose is to improve and simplify the exchange of information between users in the construction industry.
1.2 Regarding the planning method Building Information Modeling, BIMWORX wants to provide an overview of the competencies and standards of the planning method. The development and standardisation of the planning method is to be promoted through the exchange of experience between users on the platform.
1.3 In particular, BIMWORX would like to open new opportunities for the user to present himself or his company to third parties in the best possible way and to demonstrate his expertise in the construction industry. The platform offers the user the possibility to form networks, to post and exchange information. In order to fulfil these purposes, BIMWORX provides the user with certain information, offers, recommendations and services based on collected data and promotes interaction - within and outside the user's network. This is done according to any privacy settings and declarations of consent of the user.
1.4 The social network is the core application of the BIMWORX service. The profile page created by the user within the social network (hereinafter referred to as the “user profile") represents the identity with which the user is represented within the BIMWORX service. In principle, a user profile that is visible in the social network and outside it is required for the use of BIMWORX. Registration for the BIMWORX service is required.
Social network
1.5 The social network offers the user various opportunities to present his or her own user profile and activities on and outside the BIMWORX websites and to interact with other users and third parties in real time. The full effect of the social network can only be achieved if the user profile can also be accessed by non-users and found in search engines, which is why this external access and findability of the user profile is preset.
1.6 A user who registers for the social network acquires a free membership in the social network (hereinafter referred to as “membership")..
2 Conditions of use, conclusion of contract and assurances at conclusion of contract
General
2.1 When registering on BIMWORX, a visible user profile is created for the user and a user account is created. This shall give rise to the agreement to use BIMWORX.
2.2 The user assures that all data provided by him are true and complete. The user is obliged to keep the data regarding all applications used by him/her true and complete during the entire contract period.
2.3 The user assures that he is of age. If the user acts on behalf of a legal entity within the scope of certain applications, the user warrants that he is authorized to act on behalf of the legal entity. The User shall provide BIMWORX with proof of the information guaranteed under this clause on request
2.4 BIMWORX cannot technically determine with certainty whether a user registered on the BIMWORX websites is in fact the person the user claims to be. BIMWORX therefore does not guarantee the actual identity of a user.
Social network
2.5 In order to acquire a BIMWORX membership, registration is required, where the user must choose a password, among other things.
2.6 The user is obliged to keep the password he has chosen secret. BIMWORX will not disclose the password to third parties, will only use it for the registration process and will not ask the user for the password at any time, except during the registration process. For security reasons and to prevent misuse, the user is advised to change his password at regular intervals. The security and storage of the access data for the BIMWORX member account (in particular the password) is the exclusive responsibility of the user.
2.7 Each user may only create one user profile. The user may not allow third parties to use his own user profile.
3 Duties of the user and regulations/authorisations for the use of the social network
3.1 The user is obliged to,
(a) use the name that he/she also uses in daily life;
(b) to use as a profile picture in the user profile, on which the user is clearly identifiable. The user ensures that the public reproduction of the profile photo he/she has submitted on the BIMWORX websites is permitted under the applicable law.
(c) to observe applicable law and all rights of third parties when using BIMWORX and the content on the BIMWORX websites. In particular, the user is prohibited from the following:
• use of insulting or defamatory content, regardless of whether this content affects other users, BIMWORX employees or other persons or companies;
• use of pornographic, violence-glorifying, abusive, immoral or youth protection laws violating content or application, offering and/or distribution of pornographic, violence-glorifying, abusive, immoral or youth protection laws violating goods or services;
• unreasonable harassment of other users, especially through spam (see § 7 Law against Unfair Competition - UWG);
• Use of legal (e. g. content protected by copyright, trademark, patent, design or utility model law) without being entitled to do so, or advertising, offering and/or distributing goods or services protected by law, also without being entitled to do so
• Engaging in or promoting anti-competitive activities, including progressive customer acquisition (such as chain, snowball or pyramid schemes);
(d) refrain from the following harassing acts, even if they do not specifically violate any laws:
• Sending chain letters;
• Implementation, advertising and promotion of structural sales measures (such as multi-level marketing or multi-level network marketing);
• Engaging in offensive or sexually explicit communication (explicit or implicit).
3.2 The content created and shared by the user on BIMWORX belongs to the user. The user can share his content with others as he wishes. In order for BIMWORX to provide its services, the user grants BIMWORX the following legal permission to use such content:
For content that is protected by intellectual property rights (such as photos or videos) and which the User shares, posts or uploads to BIMWORX, the User grants BIMWORX a non-exclusive, transferable, sublicensable and worldwide licence to host, use, distribute, modify, execute, copy, publicly perform or display, translate and create derivative works from the content (according to the privacy settings). This licence serves the sole purpose of providing the user with the services of BIMWORX..
This license can be terminated at any time by deleting the user's content or account. For technical reasons, deleted content may remain in existence for a limited period of time. In addition, content deleted by the user may still appear if it has been shared with others and those people have not deleted the content.
3.3 The following actions are prohibited for the user:
(a) Use of mechanisms, software or scripts in connection with the use of the BIMWORX websites. The direct or indirect promotion or distribution of such mechanisms, software or scripts is also prohibited. The user may use, advertise or distribute interfaces or software authorised by BIMWORX;
(b) Blocking, overwriting, modifying, copying, unless this is necessary for the proper use of BIMWORX;
(c) Distribution and public communication of content from the BIMWORX websites or from other users, unless such distribution and public communication is provided for in the relevant BIMWORX application or the other user has agreed to the distribution and public communication
(d) any action that is likely to impair the functionality of the BIMWORX infrastructure, in particular to place an excessive load on it.
3.4 BIMWORX is not obliged to make data and/or information provided by the user available to other users if such data and/or information is not in accordance with clauses 3. 1 and 3. 3. BIMWORX is entitled to remove data and/or information that is not permitted under clauses 3. 1 and 3. 3 from the BIMWORX websites without prior notice to the user.
4 Changes to the services as well as the General Terms and Conditions
Changes in services
4.1 BIMWORX reserves the right to change the services offered on the BIMWORX websites or to offer different services, unless this is unreasonable for the user.
4.2 BIMWORX also reserves the right to change the services offered on the BIMWORX websites or to offer different services,
(a) insofar as BIMWORX is obliged to ensure that the services offered by BIMWORX comply with the law applicable to the services, in particular if the applicable law changes;
(b) in so far as BIMWORX thereby complies with a court judgment or official decision directed against BIMWORX;
(c) to the extent that the change in question is necessary to close existing security gaps;
(d) if the change is only beneficial to the user;
(e) if the change is of a purely technical or procedural nature and does not have a significant impact on the user.
4.3 Changes with only an insignificant influence on the functions of BIMWORX do not constitute changes in performance within the meaning of this clause. This applies in particular to changes of a purely graphical nature and the mere modification of the arrangement of functions.
Changes to the general terms and conditions
4.4 BIMWORX reserves the right to amend these GTC at any time without stating reasons, unless this is unreasonable for the user. BIMWORX shall inform the user of any changes to the GTC in good time. If the user does not object to the validity of the new GTC within six (6) weeks of notification, the amended GTC shall be deemed to have been accepted by the user. BIMWORX shall inform the user in the notification of his right of objection and the significance of the objection period.
4.5 BIMWORX also reserves the right to amend the General Terms and Conditions;
(a) if the change is merely beneficial to the user;
(b) if the change is purely technical or procedural, unless it has a significant impact on the user;
(c) insofar as BIMWORX is obliged to ensure that the GTCs comply with applicable law, in particular if the applicable legal situation changes;
(d) in so far as BIMWORX thereby complies with a court judgment or official decision directed against BIMWORX;
(e) insofar as BIMWORX introduces additional, completely new services, services or service elements that require a service description in the GTC, unless this results in a disadvantageous change to the previous usage relationship. BIMWORX will provide information about such changes to the terms and conditions, for example on the BIMWORX websites.
4.6 The user's right to terminate the contract in accordance with section 7 remains unaffected by any changes to the services or terms and conditions in accordance with this provision.
5 Duration, termination of the contract, sanctions, repayment of charges paid in advance
5.1 If in individual cases there are no special provisions on the duration and termination of individual applications or BIMWORX memberships, the contractual relationship can be terminated by both parties at any time.
5.2 The user and BIMWORX may terminate the membership at any time without giving reasons. In order to protect the user against unauthorised deletion of his user profile by third parties, BIMWORX may carry out an identity verification at the time of termination, for example by querying the username and an e-mail address registered on the BIMWORX websites.
6 Responsibility for user content, data and/or information, availability.
6.1 BIMWORX accepts no responsibility for the content, data and/or information provided by users of the BIMWORX websites or for content on linked external websites. In particular, BIMWORX does not guarantee that these contents are true, fulfil a specific purpose or can serve such a purpose.
6.2 If the user becomes aware of any use of the BIMWORX websites (including the use of pseudonyms or deceptive identities) that violates the law or the contract, he/she can report this.
6.3 With regard to data or content that is or was publicly available in accordance with the General Terms and Conditions, the BIMWORX data protection regulations or the settings of the user and that is or was stored by a third party, BIMWORX is not obliged to prevent such storage by the third party.
6.4 BIMWORX only offers the user a platform and does not participate in the content of communication between users. This does not apply if BIMWORX itself moderates a group in individual cases. If users enter into agreements with each other via the BIMWORX websites, BIMWORX is not involved in this and therefore does not become a contractual partner. The users are solely responsible for the processing and fulfilment of the contracts concluded among themselves. BIMWORX is not liable for breaches of duty by users arising from contracts concluded between users.
6.5 The user acknowledges that a 100% availability of the BIMWORX websites is technically impossible to achieve. However, BIMWORX makes every effort to keep the BIMWORX websites available as constantly as possible. In particular, maintenance, security or capacity concerns and events that are not within the control of BIMWORX (such as disruptions to public communication networks, power failures, etc.), may lead to disruption or temporary suspension of the service on the BIMWORX websites.
7 Liability of BIMWORX
7.1 BIMWORX has unlimited liability for damages resulting from injury to life, body or health, which are based on a breach of duty by BIMWORX, a legal representative or vicarious agent of BIMWORX, as well as for damages caused by the absence of a quality guaranteed by BIMWORX or in the event of fraudulent behaviour by BIMWORX. Furthermore, BIMWORX has unlimited liability for damage caused intentionally or through gross negligence by BIMWORX or one of its legal representatives or vicarious agents.
7.2 In the event of a breach of material contractual obligations caused by slight negligence, BIMWORX shall be liable, except in the cases of Clause 7. 1 or 7. 3, limited to the amount of the foreseeable damage typical for the contract. Essential contractual obligations are abstractly those obligations whose fulfilment makes the proper execution of a contract possible in the first place and on whose compliance the contracting parties may regularly rely. BIMWORX is otherwise excluded from liability.
7.3 Liability under the Product Liability Act remains unaffected.
8 Data protection
8.1 A collection, processing and/or use of personal data will only take place if the user has consented or if this is permitted by law. Any use of personal data based on a legal authorisation is made in particular in connection with the fulfilment of contractual obligations of BIMWORX towards users. BIMWORX offers the User a variety of functions that are individually adapted to the User (e. g. BIMWORX provides certain information, offers, recommendations and services based on collected data and promotes interaction in the User's network). In order to provide the services, the processing and use of personal data of the user is necessary.
8.2 BIMWORX offers users the opportunity to provide other users with some or all their personal data, or to revoke access to the data. The transmission of this data is at your own risk.
9 Applicable law, court and other
9.1 BIMWORX may use subcontractors. BIMWORX shall remain responsible for the fulfilment of the obligations assumed by BIMWORX even if subcontractors are appointed.
9.2 BIMWORX is entitled to transfer rights and obligations to third parties in whole or in part.
9.3 BIMWORX may send declarations to the user by e-mail, fax or letter, unless otherwise provided for in the GTC.
9.4 We do not take part in dispute resolution proceedings in front of a consumer arbitration board.
9.5 The place of performance is the registered office of BIMWORX.
9.6 The place of jurisdiction for merchants within the meaning of the German Commercial Code (HGB) is the registered office of BIMWORX.
9.7 German law shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods, which has been incorporated into German law.