Terms of Use GOAT

1. Validity of the GTC | Subject matter of the Contract

1.1. Plan4Better GmbH (the "Provider") operates the interactive web portal Geo Open Accessibility Tool ("GOAT") for urban and transportation planning. GOAT enables companies and public bodies, such as cities and municipalities, to create analyses, in particular accessibility analyses, as part of planning measures.

1.2. The subject of these General Terms and Conditions of Use (the "GTC") is the provision of GOAT in the form of a web browser application, which is made available to the Customer via a remote data connection as Software as a Service (hereinafter "SOFTWARE") for the use of its functionalities; the technical facilitation of the use of the SOFTWARE; the granting of rights of use to the SOFTWARE as well as the provision of storage space for the data generated by the Customer through the use of the SOFTWARE and/or for the use of the data entered into the SOFTWARE by the Provider (hereinafter "Application Data") by the Provider vis-à-vis the Customer (hereinafter also referred to collectively as "Contractual Services") against payment of the agreed fee.

1.3. All agreements made between the Provider and the Customer are set out exclusively in these GTC together with the SLA and, if existing, the Offer. These are an integral part of the Contract.

1.4. These GTC apply exclusively. Any terms and conditions of the Customer that conflict with or deviate from these GTC shall not become part of the Contract, even if the Provider is aware of them, unless the Provider has expressly agreed to their validity in writing.

1.5. The Provider is entitled to amend and adapt these GTC during the term of the Contract with effect for the future if this becomes necessary for a compelling reason, such as compelling operational reasons, changes to laws or case law, or if exclusively new services of the Provider (such as the expansion of the offer through the provision of additional services) are introduced. The Provider shall send the Customer the amended terms and conditions in text form prior to the planned entry into force and draw particular attention to the new regulations and the date of entry into force. At the same time, the Provider shall grant the Customer a reasonable period of at least four (4) weeks to declare whether it objects to the amended GTC. If no objection is made within this period, which shall commence upon receipt of the notification in text form, the amended terms and conditions shall be deemed to have been agreed. The Provider shall inform the Customer separately of this legal consequence, i.e. the right of objection, the objection period and the significance of silence, at the beginning of the period.

1.6. The use of the services does not include the provision of software for local installation on the Customer's IT systems. However, the Provider reserves the right to also provide services for local installation. All rights to the technology used by the Provider (in particular hardware, source code, etc.) shall remain solely with the Provider. The Contractual Services may contain components that are subject to open source software licenses. Separate provisions may apply here.

1.7. The Provider points out that the analyses and recommendations of the SOFTWARE may be incorrect because they were only made on the basis of probabilities and their quality depends in particular on the quality of the data points fed in. The Contractual Services therefore explicitly do not include the accuracy of the analyses and recommendations. The Provider therefore advises the Customer not to make investment decisions solely on the basis of the analyses and recommendations of the SOFTWARE, but to consult other decision-making bases for the investment decision.

2. Key definitions

2.1. "Force majeure" is an event that is not foreseeable by either party. Force majeure in this sense includes in particular (i) fire, explosions or other accidents; (ii) storms, earthquakes, tornadoes, floods, volcanic eruptions or other natural disasters; (iii) war, threat of war, terrorism, insurrection or other unrest; (iv) epidemics, pandemics, quarantine restrictions or other restrictions imposed by public health measures; (v) strikes or other industrial action by the parties or their suppliers or their employees; or (vi) sanctions or embargoes.

2.2. "Customer" is the legal or natural person or public corporation specified in the Offer.

3. Conclusion of Contract

3.1. All Offers made by the Provider are non-binding and subject to change.

3.2. For the conclusion of the Contract, the Provider shall send the Customer an Offer (hereinafter "Offer") in text form. The Customer can accept the Offer in text form (e.g. e-mail) vis-à-vis the Provider. Upon receipt of the acceptance by the Provider, a Contract is concluded in accordance with these GTC and the Offer (hereinafter referred to as the "Contract").  

3.3. Provider shall provide the Contractual Services exclusively in accordance with the Contract under the terms of the Offer. The Offer describes the Contractual Services and the respective scope of services in detail. The specification according to the Offer is conclusively authoritative for the quality of the SOFTWARE.

4. Provision of the Contractual Services

4.1. The Provider shall provide the Customer with the use of the SOFTWARE to the extent described in the Offer and at the availabilities agreed therein. The measuring point of availability is the service transfer point in the form of the exit point of the Provider's Internet connection to the servers operated by the Provider. The Customer acknowledges that a completely uninterrupted availability of the platform and services is not technically possible, in particular as this may depend on factors that are beyond the control of the Provider.

4.2. As part of the provision of the SOFTWARE, the Provider shall receive documentation of the SOFTWARE in the form of an electronic user manual (hereinafter "Documentation").

4.3. The Provider reserves the right, while safeguarding the legitimate interests of the Customer and subject to a notice period of three (3) weeks, to change, extend or discontinue individual services, in particular if this is necessary to prevent misuse or if the Provider is obliged to do so by law. If the contractual use of the Contractual Services by the Customer is not only insignificantly impaired as a result, the Customer is entitled to demand a price adjustment [Minderung] or to terminate the Contract. The Provider may make improvements, extensions or adaptations of the Contractual Services to the state of the art at any time without observing a notice period, provided that the identity of the service is preserved.

5. Granting of rights of use and data processing

5.1. Subject to full and unconditional payment of the remuneration due, the Customer receives the simple, non-transferable, worldwide, non-sublicensable right, limited in time to the term of the Contract, to use the SOFTWARE via the Internet to the extent granted in the Contract for the Customer's own business purposes and those permitted under this Contract. The Provider expressly does not grant the Customer any further rights, in particular rights to the software.

5.2. If the Provider provides the Customer with additions (e.g. patches, additions to the documentation) or a new version of the SOFTWARE (e.g. update, upgrade) during the term of the Contract, these are subject to the provisions of the Contract.

5.3. The Customer is not authorized to use the SOFTWARE beyond the terms of the Contract or to make it accessible to third parties. In particular, the Customer is not entitled to reproduce and/or sell the software or parts thereof for a fee or free of charge or to pass it on to a third party in any other form, to enable a third party to use or gain knowledge of it or to use the software for a third party, in particular not to rent or lend it. The right of use shall expire upon termination of the Contract for whatever reason.

5.4. In the event of an unauthorized transfer of use, the Customer shall, upon request, immediately provide the Provider with all information required to assert claims against the unauthorized third party, in particular the name and address of the unauthorized third party.

5.5. If and insofar as additional software protection rights in accordance with Section 69a et. al. of the German Copyright Act (UrhG) or rights of use to the SOFTWARE or to any further developments arise during the term of the Contract as a result of data points fed in by the Customer, the Provider shall be exclusively entitled to these together with all property rights, without the Provider being obliged to pay any remuneration to the Customer. They are hereby assigned or transferred to the Provider in advance, without restriction in terms of content, time and territory, as well as sublicensable and transferable. Provider hereby accepts the assignment and transfer.

6. Customer usage requirements and quality of the data points

6.1. The use of the SOFTWARE requires that the system requirements specified in the Offer are met and that the Customer has Internet access with a bandwidth of at least 8 Mbit/s.  

6.2. The provision of these requirements as well as Internet access including transmission services from the service transfer point to the devices used by the Customer are not the subject of this Contract, but are the responsibility of the Customer.

6.3. The Customer acknowledges that the quality of the analyses and results of the SOFTWARE essentially depend on the quality of the data fed in by the Customer. The Customer is therefore responsible for feeding data points into the SOFTWARE exclusively in accordance with the Provider's specifications.

6.4. The Customer shall regularly check the data points to be fed in to ensure that they are free of errors and that they comply with the specifications made by the Provider.

6.5. The Customer shall inform the Provider immediately of any defects in data points of which it becomes aware and shall immediately take appropriate measures to ensure that the data points made available to the Provider comply with the Provider's specifications.  

6.6. If the data points provided by the Customer to the Provider, for which the Customer is the controller within the meaning of the GDPR, constitute, consist of or contain personal data [“personenbezogene Daten”] in whole or in part, it is the sole responsibility of the Customer and the Customer shall use its best efforts to ensure that all such personal data is anonymized and aggregated prior to injection.  

7. Obligations of the Customer to cooperate

The parties agree that the provision of the Contractual Services depends to a large extent on the efficient and successful cooperation of the parties. Against this background, the Customer shall, among other things, fulfill the following obligations to cooperate at no cost to the Provider. In particular, it shall,  

7.1. keep the access data assigned to it and any other agreed identification and authentication safeguards secret, protect them from access by third parties and not pass them on to unauthorized third parties. This data must be protected by suitable and customary measures. The Customer shall inform the Provider immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons;

7.2. the information in Section 6 conditions of use described in Section 6;

7.3. the restrictions and obligations with regard to the rights of use pursuant to Section 5 must be complied with;

7.4. ensure that all industrial property rights and copyrights of third parties are observed when using the SOFTWARE;

7.5. not use the SOFTWARE improperly or allow it to be used improperly, in particular not transmit any information offers with illegal or immoral content or refer to such information that serves to incite hatred, incite criminal offenses or glorify or trivialize violence, are sexually offensive or pornographic, are likely to seriously endanger the morals of children or adolescents or impair their well-being or damage the reputation of the Provider or third parties.

7.6. refrain from attempting to retrieve information or other data without authorization, or to interfere with the SOFTWARE or have it interfered with by unauthorized third parties, or to penetrate the data networks of Providers without authorization;

7.7. indemnify the Provider and its vicarious agents against all claims of third parties upon first request (including the costs of necessary legal defense) that are based on an unlawful use of the SOFTWARE by the Customer or are made with the Customer's approval or that arise in particular from data protection, copyright or other legal disputes associated with the use of the SOFTWARE. If the Customer recognizes or must recognize that such a violation is imminent, he is obliged to inform the Provider immediately.

7.8. The Customer shall designate a system admin and (legal) representative as well as their contact details (e-mail address and telephone number) to the Provider for communication in connection with the fulfillment of the Contract. The Customer's system admin can activate the Customer's user accounts with different rights and authorizations for a fee.

7.9. In the event of inaccuracies or changes in the contact details and in the event of a change of a contact person appointed by the Customer in accordance with Section 7.8 to inform the Provider immediately in text form, providing updated information.  

7.10. The Provider is entitled to block the Customer's access to the SOFTWARE for the duration of the breach of duty in the event of breaches of the Customer's obligations under this Contract that have not been omitted despite a reminder and in the event of justified suspicion of a corresponding breach of duty, without this invalidating the Provider's claim to remuneration.

8. Remuneration, invoicing and payment modalities

8.1. The services are provided for a fee. Unless expressly stated otherwise in the Offer, the remuneration to be paid is calculated according to a monthly SaaS fee, which is dependent on the activated user accounts. Details can be found in the Offer or, in the absence of information in the Offer, in the Provider's current price list.

8.2. All prices are subject to the applicable statutory value added tax.  

8.3. Unless otherwise agreed, the Provider shall issue an electronic invoice (in PDF format) for the respective calendar month at the end of each calendar month. Invoices shall only be sent electronically to the e-mail address most recently provided by the Customer to the Provider in text form. In the event of changes to the e-mail address, the Customer must immediately inform the Provider of the current e-mail address in text form.

8.4. Charges are due for payment within the payment period applicable to the selected means of payment.  

8.5. Only claims that are undisputed, legally established or in a synallagmatic relationship to the respective claim of the Provider shall entitle the Customer to offset or withhold payment.

9. Claims for defects

9.1. The Provider warrants that the Contractual Services are free from defects which cancel or reduce the value or suitability for the usual use or the use assumed in the respective applicable version of the service description. An insignificant reduction in value or suitability shall not be taken into account.

9.2. The Customer shall provide the Provider with all necessary information, documents or data for the analysis and rectification of defects and, in exceptional cases, enable and permit access to the Customer's servers if necessary.  

9.3. If a not insignificant defect occurs in the Contractual Services provided by the Provider, the Provider shall, within a reasonable period of time and at the Provider's discretion, either remedy the defect or provide the defective service again free of defects (collectively referred to as "Subsequent Performance") [Nacherfüllung]. Subsequent Performance may also be effected by installing a new program version or a workaround. If the defect does not impair the functionality or only insignificantly, the Provider shall be entitled to remedy the defect by delivering a new version or an update within the scope of the version, update and upgrade planning, to the exclusion of further claims for defects.  

9.4. If the Subsequent Performance fails, in particular because the defect is not remedied despite an attempt to remedy it, the Subsequent Performance is unreasonably delayed or is unjustifiably refused, the Customer may, subject to the statutory requirements, terminate the Contract, reduce the purchase price and demand compensation for damages or expenses.

9.5. The Customer has no claims for defects due to faults caused by damage, incorrect connection or incorrect operation.

9.6. The Customer's claims for defects shall lapse twelve months after they arise, unless the Provider has fraudulently concealed the defect of title; the statutory limitation period for the Customer's claims for damages shall remain unaffected.  

9.7. The Provider does not assume any warranty for test and/or beta versions of the software that can be used by the Customer free of charge.

10. Liability of the Provider

Finally, the Provider is liable as follows:  

10.1. The Provider shall be liable without limitation for damages due to intentional or grossly negligent acts, culpable injury to life, limb and/or health, in the event of a breach of a guarantee expressly designated as a "guarantee", and in the event of mandatory statutory liability under the Product Liability Act.

10.2. In cases other than those specified in Clause 10.1 the liability of the Provider for the slightly negligent breach of a material contractual obligation [wesentliche Vertragspflicht], the fulfillment of which is necessary for the achievement of the purpose of the Contract and on the fulfillment of which the Customer may therefore regularly rely, is limited to the foreseeable and contract-typical damages at the time of the conclusion of the Contract; however, this liability is limited to a maximum of EUR 5,000,000.00.

10.3. In all other cases, the Provider is not liable for slight negligence.

10.4. The Provider's strict liability for damages (Section 536 a German Civil Code (BGB)) for defects existing at the time of conclusion of the Contract is excluded. Sections 10.1 to 10.3 remain unaffected.

10.5. The Customer is responsible for regularly backing up his data at appropriate intervals. In the event that the Provider is liable on the merits for a loss of data, this liability shall be limited to the amount that would be required to restore the data if such reasonable regular backups had been made.

10.6. The Provider shall not be liable for data loss caused by technical failures, interrupted data transmissions or other problems arising in this context that are beyond the Provider's control (e.g. faults on the transmission paths of telecommunications service Providers or the Internet).

10.7. The above liability provisions of Sections 10.1 to 10.6 also apply in favor of the Provider's executive bodies, employees, representatives and/or vicarious agents.

10.8. A change in the burden of proof to the detriment of the Customer is not associated with the above provisions.

11. Secrecy

11.1. The parties undertake to keep secret from third parties any documents, knowledge, experience and information on products, services, know-how and technology which become known or are provided to the other party in the context of the performance of this Contract (hereinafter referred to as "Confidential Information"). The parties are aware that this Confidential Information was not previously known or readily accessible either in its entirety or in its details, is therefore of commercial value, is protected by appropriate confidentiality measures on the part of the owner and in which there is a legitimate interest in its confidentiality. Insofar as Confidential Information pursuant to this Section 11 does not meet the requirements of a trade secret within the meaning of the German Trade Secrets Act (GeschGehG), this information shall nevertheless be subject to the confidentiality obligations under this Section 11.

11.2. The confidentiality obligation pursuant to the above Section 11.1 shall not apply to information if and to the extent that (i) it was already lawfully in its possession prior to disclosure and without an obligation of confidentiality, (ii) it was published without any action on its part or otherwise became generally known through no fault of its own, (iii) it was lawfully transmitted to it after conclusion of the Contract by one or more third parties without an obligation of confidentiality, i.e. without breach of this Contract by the receiving party; (iv) these are released in writing by the disclosing party, (v) these have been made accessible to a third party by the disclosing party without corresponding obligations and restrictions, or (vi) these must be disclosed in accordance with statutory or administrative regulations if the disclosing party is notified of this requirement without delay and the scope of the disclosure is restricted as far as possible, or must be disclosed due to a court decision if the disclosing party is notified of this decision without delay and if there is no possibility of appealing the decision.

11.3. The parties shall use Confidential Information exclusively for the purpose of fulfilling the obligations arising from an existing contract. The parties are obliged to obligate their employees and other persons involved in this Contract and its execution to observe this confidentiality in an appropriate manner.

11.4. The confidentiality provisions under this Section 11 shall continue to apply for a period of two (2) years after termination of the Contract.

11.5. In the event of contradictions between a confidentiality agreement ("NDA") concluded by the parties and the provisions of this Section 11 the provisions of the NDA shall take precedence.

12. Reference and press releases

12.1. Provider is entitled to publicize or advertise the conclusion of the Contract or the contractual cooperation between the parties in any form (e.g. in reference lists). Customer hereby expressly agrees to the use of his company, trademarks and other protected signs by Provider for the aforementioned purpose.

12.2. Each party is entitled to issue a press release reporting in general terms on the conclusion of the agreement and the cooperation between the parties. The draft for a planned press release must be agreed between the parties in advance.

13. Involvement of subcontractors

The Provider is entitled to have individual or all of its performance obligations performed with the help of third parties (e.g. by subcontractors).

14. Contract term and termination

14.1. Unless expressly agreed otherwise, the contract term shall commence on the date stated in the Provider's order confirmation as the start of the Contract with the contract term applicable to the booked package ("Term"). After expiry of the Term, the Contract shall be extended by the term applicable to the booked package, unless it is terminated by either party with the notice period applicable to the booked package before expiry of the respective Term.

14.2. The right to extraordinary termination for good cause remains unaffected. The statutory provisions shall apply in this respect. The sale of individual business areas of the Provider or a change of shareholder shall not constitute a special right of termination for the Customer. Good cause exists for the Provider in particular (i) if the Customer is in arrears with the payment of invoices for two consecutive months or a not insignificant part of the remuneration or (ii) in a period extending over more than two months, is in arrears with the payment of the remuneration in an amount that reaches the remuneration for two (2) months and/or (iii) if the Customer violates its obligations under Section 7.1 even after a warning has been issued.  

14.3. Any termination must be in writing to be effective.

15. Force majeure

If the performance of the contractual obligations is hindered by a force majeure event, the affected party shall be released from the obligation to fulfill the affected obligations for the duration of the force majeure event. The affected party shall immediately inform the other party in writing of the circumstances that led to the occurrence of force majeure. As long as the Provider is prevented from providing the Contractual Services due to a force majeure event, the Customer shall be released from its payment obligation.

16. Choice of law, place of jurisdiction and final provisions

16.1. The place of performance is the registered office of the Provider.

16.2. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the provisions of international private law.  

16.3. With regard to merchants, legal entities under public law and special funds under public law, the registered office of the Provider is agreed as the exclusive place of jurisdiction. The Provider reserves the right to sue the Customer at his general place of jurisdiction.

16.4. There are no ancillary provisions outside of this Contract and its annexes. Any amendments, additions or the rescission of these GTC and/or the Contract must be made in writing; this also applies to the amendment, addition or rescission of this Section 16.4.

16.5. Should individual provisions of these GTC be or become invalid in whole or in part, or should there be a loophole in the terms and conditions, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any loopholes in the agreements.

16.6. In the event that these GTC are available in different languages, only the German language version shall be legally binding.

Munich, 19.11.2023