1. Scope of Application
1.1. PropDesigner Pro provides software via the Internet, with which marketing materials for real estate marketing can be created efficiently and in a uniform design and saved in a logical document storage. The provision of the software and its use by the customer as well as the provision of further services by PropDesigner Pro in this context is based on these Terms and Conditions, unless otherwise agreed in individual contractual agreements.
1.2. Opposing or deviating terms and conditions of the customer are not part of the contract and will not be recognized unless PropDesigner Pro has agreed to their validity. This also applies if PropDesigner Pro unconditionally performs its services despite knowledge of opposing or deviating terms and conditions of the customer.
1.3. The transfer of rights and obligations from contracts concluded with PropDesigner Pro by the customer to third parties is only permitted with the consent of PropDesigner Pro. The provision of § 354a HGB remains unaffected.
2. Scope and Provision of Services
2.1. Offers from PropDesigner Pro are non-binding. They expire after twenty calendar days from submission, unless otherwise agreed.
2.2. PropDesigner Pro provides the software for the customer as “Software as a Service” (SaaS), i.e., it operates the software in a data center and provides the customer with the necessary storage space for using the application including necessary data storage. The use of the application by the customer presupposes that the customer can access the application via an internet connection. The internet connection must be ensured by the customer and is not part of the services of PropDesigner Pro.
2.3. The type, content, and scope of the services to be provided by PropDesigner Pro otherwise arise from the offer, the contract, and the service and/or product description underlying the respective offer or contract.
2.4. PropDesigner Pro is entitled to change and adapt the content of its services, especially of provided software within the framework of technological, user interface-related, or content-related developments, as long as the agreed functionalities are not restricted or impaired. If such development leads to an expansion of services, PropDesigner Pro is entitled to adjust the agreed prices accordingly to the created added value. If the extent of such an adjustment exceeds a volume of more than five percent of the previously agreed price per calendar year, the customer has a right of objection as follows: PropDesigner Pro will notify the customer about the development, give the customer the opportunity to object to the resulting adjustments in writing within a reasonable period from notification, and separately point out that the adjustments become effective if no objection is raised. In case of a valid objection, the price adjustment will not be carried out.
2.5. PropDesigner Pro is entitled to use vicarious agents for fulfilling its contractual obligations and to transfer rights and obligations from contracts wholly or partially to third parties.
3. Availability of the Software
3.1. PropDesigner Pro guarantees availability of the software of 99.5% on average per month, unless the parties have agreed on a different availability. However, no corresponding guarantee is associated with this.
3.2. The software is considered available if the servers on which the application is operated are connected to the internet and the agreed functionalities of the software are without essential defects, as well as during the agreed maintenance windows (3.3).
3.3. To maintain the quality and security of PropDesigner Pro’s services, maintenance windows (downtimes) of a total maximum of ten hours per month are agreed, during which the software is planned not to be available. During these maintenance windows, the software is considered available despite the downtime. When planning such maintenance windows, PropDesigner Pro will consider the legitimate interests of all customers. PropDesigner Pro will endeavor to plan maintenance windows outside usual business hours (weekdays – Monday to Friday except statutory holidays in Berlin – from 9:00 to 18:00 CET/CEST).
3.4. The measurement period for availability is the calendar month. The availability percentage is calculated according to the following formula: Availability [%] = Minist / (MinMess – MinWart) * 100. With respect to the measurement period, i.e. the respective calendar month: Minist = number of minutes of actual availability of the application MinMess = number of minutes of the measurement period MinWart = number of minutes of downtime during the agreed maintenance windows.
3.5. PropDesigner Pro is not liable for disturbances of availability caused by force majeure. Force majeure includes theft, general internet disturbances, or other circumstances insofar as they are unforeseeable, severe, and not culpably caused by PropDesigner Pro. PropDesigner Pro will inform the customer immediately about the occurrence of such an event as far as possible and reasonable.
3.6. PropDesigner Pro is in no case liable for disturbances of availability caused by the customer, the telecommunications service provider, the access provider, or the mobile service provider of the customer, or otherwise caused by third parties attributable to the customer's sphere.
4. User Accounts and Permitted Number of Users
4.1. The permissible use of the software by the customer is limited to the agreed number of additional licenses with an email address assigned to the account. The number of additional licenses is an essential factor for the fee calculation.
4.2. PropDesigner Pro transmits to the customer the access data required for identification and authentication for the use of the software. The customer is not permitted to pass these access data to third parties who are not employees of the customer or who in individual cases have a legitimate interest in the access, e.g. notaries or developers. New additional licenses must be reported by the customer to PropDesigner Pro before their use, so that an adjustment of the fee calculation can be made.
4.3. The customer is obliged to name all users intended for the use of the software to PropDesigner Pro. The customer is furthermore obliged to inform PropDesigner Pro of any changes in the allocation of users or additional licenses caused by organizational changes, employee turnover, or similar.
4.4. The customer is obliged to keep the access data provided to him secret and to ensure that misuse by third parties is prevented. The customer is obliged to inform PropDesigner Pro immediately if there are indications that assigned access data has come into the possession of unauthorized third parties.
4.5. The customer is obliged to ensure that its users also comply with the provisions of this section 4.
5. Grant of Rights
All usage, know-how, and other protective rights to the software belong to PropDesigner Pro. PropDesigner Pro grants the customer and the users named by the customer a limited, non-exclusive, non-transferable right to use it for the term of the contract in the scope necessary for the agreed use of the services.
6. Reference Naming
PropDesigner Pro is entitled, but not obliged, to name the customer as a reference customer in all media and to refer to its internet pages unless the customer can assert a conflicting legitimate interest. The customer grants PropDesigner Pro a temporally and spatially unlimited right to use its trademarks and company identifiers for this purpose.
7. Duties and Responsibilities of the Customer
7.1. The customer is obliged to cooperate appropriately in the provision of the contract-related service. Special conditions of software and IT services and projects, which due to their regularly high complexity and customer-specific nature require close and trusting cooperation between the contracting parties, must be taken into account. The customer's cooperation is therefore an essential contractual duty. The customer will create all necessary prerequisites for the provision of services by PropDesigner Pro that are agreed or lie within its domain.
7.2. The customer must inform PropDesigner Pro unsolicited and in good time of all circumstances and events that are relevant to the execution of the agreed services.
7.3. The customer must ensure appropriate data backup of the data accessible to him. This applies in particular to data that is only duplicated or uploaded by the customer in the software, such as emails, contact information, exposés, etc. The customer will regularly and hazard-appropriately back up the data transmitted to PropDesigner Pro and create his own backup copies to ensure reconstruction of the data and information in case of loss. PropDesigner Pro provides the customer with suitable means for an automatic backup suitable for reconstruction by PropDesigner Pro.
7.4. The customer is furthermore obliged:
– to check materials provided or uploaded by him via the software for viruses or similar in advance;
– not to misuse the software or allow misuse, especially not against applicable law (laws, regulations, or official provisions) or violate good morals, and not to make any use that is unreasonable for PropDesigner Pro;
– not to upload documents or other content on PropDesigner Pro CRM that infringe third-party rights (e.g. foreign copyrights or industrial property rights);
7.5. The provisions of this section 6 are not exhaustive and do not affect further duties of the customer, especially those arising from these Terms and Conditions, individual agreements of the parties, or the law.
7.6. In case PropDesigner Pro is claimed by third parties due to culpable breach of duty by the customer, the customer is obliged to indemnify PropDesigner Pro from such claims and to reimburse all damages incurred in this context, including legal or – insofar as not legally regulated – market-standard attorney fees.
8. Prices and Payment Terms
8.1. The prices applicable for services of PropDesigner Pro are those fixed in the offer to the customer. All price indications denote net prices plus any applicable VAT, customs duties, and other charges.
8.2. PropDesigner Pro can adjust agreed prices within reasonable limits, but not exceeding ten percent once per calendar year, with future effect according to the development of the total costs underlying the price calculation at PropDesigner Pro. Total costs consist in particular of costs for provision, maintenance, operation, and use of the software and related services (e.g. IT infrastructure, preliminary products, technical service), costs for customer administration (e.g. support services, billing systems), personnel and service costs, energy costs, overheads (e.g. administration, marketing, rents, interest), as well as officially imposed charges (e.g. taxes, fees, contributions). PropDesigner Pro is entitled to the price increase to cover additional costs and will offset price decreases with price increases. PropDesigner Pro will inform the customer in good time in text form about such price increases due to cost increases. If the price increase exceeds ten percent per calendar year, the customer has a right to object as follows: PropDesigner Pro will notify the customer of the adjustment, give the customer the opportunity to object in writing within a reasonable period after notification, and separately point out that the adjustments become effective if no objection is raised. In case of valid objection, the price increase will not be carried out.
8.3. PropDesigner Pro will provide the customer with an individual price overview (including list price, possible discounts, and total price) at least ten days before the start of a new contract period. In case of automatic contract extension, the future remuneration is determined by the communicated (list) price. Only in exceptional cases where the total price for the contract extension increases by more than fifteen percent, the customer has a right to object in writing until the start of the contract extension. In case of valid objection, the price increase will not be carried out.
8.4. Invoicing is done exclusively electronically by email to the email address stored by the customer at PropDesigner Pro. Parallel dispatch in paper form only upon explicit request.
8.5. Payments can be made by bank transfer or SEPA direct debit procedure.
8.6. Monthly provision or license fees are due in advance upon invoicing. Remuneration for other services is due upon provision of the respective service.
8.7. The customer may only offset against claims from PropDesigner Pro with counterclaims based on material or legal defects if the offset amount does not exceed the defect-related reduction in value of the affected service or the expected costs of subsequent performance or defect removal. Otherwise, offsetting is only permitted with undisputed or legally established counterclaims.
9. Default in Payment
9.1. If the customer is in default with payment obligations, PropDesigner Pro is entitled to refuse services wholly or partially; this also includes blocking the customer's access to the software. The customer remains obliged to pay the agreed monthly provision fee in case of justified refusal due to default.
9.2. If the customer is a) in default for two consecutive months with paying monthly invoices or b) in default within a period exceeding two months with payment of an amount reaching the agreed fee for two months, PropDesigner Pro is entitled to terminate the contract without notice.
10. Term and Termination
10.1. The contract begins at the time specified in the offer and is concluded for an indefinite period. The contract has the contractually agreed minimum term.
10.2. After the minimum term, the contract is automatically extended by twelve months each time unless terminated with three months’ notice to the end of the respective term
10.3. The right to terminate for good cause remains unaffected.
10.4. Terminations must be in writing (sending a scan via email is sufficient).
10.5. If the customer books additional users during an ongoing contract, the contract for these users follows the term of the original contract.
11. Deadlines and Dates
11.1. Dates named in the offer or other documents for the provision of services are generally non-binding planned dates. Only explicitly designated binding dates are binding.
11.2. If PropDesigner Pro is prevented from meeting delivery or performance dates due to unforeseen circumstances beyond its control and not attributable to PropDesigner Pro or its agents, these deadlines are extended appropriately, but at least by the duration of such impediments. Such circumstances include, for example: force majeure, labor disputes, network failures, or general telecommunication disturbances.
11.3. Delays due to circumstances for which the customer is solely or predominantly responsible (delayed provision of cooperation, delays caused by third parties attributable to the customer, etc.) are not the responsibility of PropDesigner Pro. In such cases, PropDesigner Pro is entitled – without prejudice to further claims – to postpone the provision of affected services by a period appropriate to the duration of these circumstances.
12. Warranty
12.1. PropDesigner Pro guarantees that the owed services comply with the contract and service and/or product description requirements. PropDesigner Pro further guarantees the connection of the software to the internet.
12.2. If the services owed by PropDesigner Pro deviate from contractual agreements, these defects must be immediately reported by the customer with as exact a description of the defect and circumstances as possible. The customer will, if possible, create screenshots of error messages and/or the appearance of the defect and provide them to PropDesigner Pro. PropDesigner Pro will remedy the defect within a reasonable period.
12.3. The customer’s right to terminate due to non-provision of use is excluded unless the establishment of contractually compliant use is considered failed. Failure is assumed earliest if PropDesigner Pro does not remedy a material defect within three weeks after receipt of the defect notice or does not provide a corresponding workaround and the customer has properly fulfilled its cooperation duties. The customer is not entitled to terminate for insignificant defects.
12.4. Any fault-independent liability of PropDesigner Pro for defects existing at contract conclusion is excluded.
12.5. The statute of limitations for all defect claims of the customer including damages claims is one year from the statutory start of limitation (except for intent).
12.6. If the customer has asserted warranty claims and it turns out that either no defect exists or the claimed defect does not obligate PropDesigner Pro to warranty, the customer must reimburse the expenses incurred if the claim was grossly negligent or intentional.
13. Confidentiality
13.1. The contracting parties commit to treat business and trade secrets, which they or their agents obtained during contract negotiations or performance, confidentially. These obligations do not apply to information that
a) is demonstrably generally known without violation of confidentiality;
b) was demonstrably known to the parties before receipt;
c) was received from a third party without obligation to confidentiality; or
d) was demonstrably independently developed.
13.2. The burden of proof for the existence of these exceptions lies with the party claiming the exception.
14. Data Protection
14.1. Both parties commit to observe the applicable data protection regulations in their cooperation.
14.2. The customer is responsible for ensuring that he is authorized to process personal data in the software in relation to the data subjects.
14.3. The software is hosted in a third-party data center. Processing and use of data takes place exclusively within the European Union. Any transfer to a third country requires prior consent of the customer and may only occur if the necessary legal requirements are met.
15. Liability
15.1. The following provisions apply only insofar as no deviating liability rules in the contract between the parties exist.
15.2. PropDesigner Pro is liable according to statutory provisions for damages caused by intentional or grossly negligent behavior of PropDesigner Pro or its agents. The same applies for personal injury and damages under product liability law.
15.3. Otherwise, liability for damages claims is limited as follows unless PropDesigner Pro has given a guarantee to the contrary:
a) For slightly negligent caused damages – except damages from injury to life, body, or health – PropDesigner Pro is liable only insofar as they arise from breach of cardinal duties (essential contractual obligations). Cardinal duties are contractual obligations whose fulfillment enables proper performance of the contract in the first place and on whose observance the customer may rely. Liability for simple negligence is limited to typically foreseeable damage unless statutory provisions provide for lesser liability.
b) Liability for loss of data and/or programs caused by slight negligence is limited to the typical restoration effort that would have occurred with regular and appropriate data backup by the customer.
15.4. The provisions of the previous paragraph apply correspondingly to limitation of compensation for futile expenses (§ 284 BGB).
15.5. The liability limitations also apply in favor of PropDesigner Pro’s vicarious agents.
16. Non-Solicitation
The customer commits not to directly or indirectly solicit PropDesigner Pro employees during the contract and for one year after contract termination. For each culpable violation, the customer commits to pay a contractual penalty to be reasonably determined by PropDesigner Pro and reviewed by the competent court in case of dispute.
17. Changes to the Terms and Conditions and Prices
PropDesigner Pro is entitled to make changes to these Terms and Conditions under the following provisions:
17.1. Changes to these Terms and Conditions will be communicated to the customer in text form in good time before the change.
17.2. The customer must declare his objection to PropDesigner Pro in text form within 4 weeks after receipt of the notification about the change of the Terms and Conditions. The deadline is met only if the objection reaches PropDesigner Pro within the period. If the customer does not object properly and timely, the change is deemed approved; PropDesigner Pro will expressly point this out in the notification about the change of the Terms and Conditions. If the customer objects properly and timely, the contract continues unchanged. In this case, PropDesigner Pro has the right to terminate the contract extraordinarily with four weeks' notice by written declaration if adherence to the unchanged contract is economically or technically impossible or unreasonable for PropDesigner Pro.
18. Final Provisions
18.1. This contract is subject to the law of the Federal Republic of Germany excluding the UN Sales Convention (CISG).
18.2. For all present and future claims arising from the business relationship with merchants, legal entities under public law, or special funds under public law, the exclusive place of jurisdiction is Berlin. The same place of jurisdiction applies if the customer has no general place of jurisdiction in Germany, moves residence or habitual abode abroad after contract conclusion, or the residence or habitual abode is unknown at the time of filing the lawsuit.
18.3. Should individual provisions be missing, invalid, or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Instead, the invalid or missing provisions shall be replaced by those coming closest to the intended purpose. The parties are furthermore obliged to work toward provisions achieving an economically closest possible result to the invalid or missing provision. This clause does not apply to these Terms and Conditions themselves.
