Status: April 2020
§1 General
1) NOVA Building IT GmbH operates a software application (hereinafter referred to as “Service”) on the Internet under the domain “avanova.de”, which can be used via the Internet to support entrepreneurs and organizations in the creation and management of information and documents in connection with the planning, procurement and execution of services in accordance with VOB, VOL and VOF. The provider of the service is NOVA Building IT GmbH, In der Mordach 1a, 64367 Mühltal (hereinafter: NOVA).
2. these terms and conditions in their currently valid version apply to all business relationships between the user and NOVA. The provisions herein shall also apply retroactively to existing and future business relationships between the user and NOVA. Deviating, conflicting or supplementary general terms and conditions of the user (including, for example, terms and conditions of purchase) shall not become part of the contract unless their validity is expressly agreed in writing upon conclusion of the contract. Any formal reference to the user’s terms and conditions is expressly rejected.
§2 Subject matter of the contract
1. the object of the contract of use is the provision of the service for the use of the functionalities to the user.
2. the respective scope of services depends on the service package selected by the user and basically includes the possibility of creating and managing various information and documents in connection with the planning, procurement and execution of services in accordance with VOB, VOL and VOF.
3. the user also has the option of downloading documents created via the service in the file formats offered for further processing and for backup purposes.
§3 Conclusion of contract
1. the use of the service is only possible within the framework of a contract of use. Only entrepreneurs, legal entities under public law or special funds under public law may conclude a contract for the use of the service.
2. the user is obliged to provide only truthful information about himself and the company when concluding a user contract and to keep his data up to date at all times.
(3) NOVA initially offers the conclusion of free, term-limited user contracts that are partially limited in scope and intended for test purposes only. In this case, the provision of the registration form by NOVA is already an offer to conclude such a contract. The user accepts this offer by completing the form and submitting it using the corresponding button.
4 In addition, NOVA also offers the conclusion of fee-based usage contracts. For this purpose, the user can view and select the available service packages in his account in the “My account” area via the “Order package” command. This selection option is already a binding offer to conclude a fee-based contract. The user accepts this offer by confirming it in the last step of the order process by clicking on the corresponding button “Order package for a fee”.
5. the user has the option of canceling the order process at any time before submitting his contractual declaration, checking his details and, if necessary, correcting them by changing the relevant fields. He can also check the services he has selected and change them by activating the corresponding selection boxes.
6 NOVA will immediately confirm receipt of the contractual declaration to the user by sending an e-mail. The German language is available for the conclusion of the contract.
§4 Provision of the service
1. the service is provided to the user upon registration in the case of free user contracts and upon acceptance of the selected offer in the case of fee-based user contracts.
2. the transfer point for the provision of the service is the router output of the NOVA data center. NOVA owes an availability of the service at the transfer point of 98% on an annual average.
§5 Further services provided by NOVA
1. in addition to the basic functions of the service, NOVA also provides users with other additional services for a fee.
2 The exact scope of services is defined in the respective service descriptions and can be utilized using the options provided there.
§6 Authorization of use, rights
1. nova grants the user the non-exclusive, non-sublicensable and non-transferable right to use the service for its own business purposes during the term of the contract.
2. if and to the extent that a database, databases or a database work or database works are created on the NOVA server during the term of the license agreement, the user shall be entitled to all rights thereto. The user shall remain the owner of the databases or database works even after the end of the contract.
§7 Granting of rights of use by the user
1. the subject of the following granting of rights of use are all service items for tenders created by the user within the scope of the service (hereinafter: Tender items). The user has created the service items himself if the service items have not been taken unchanged from third-party tender text systems and if they cannot be clearly assigned to a third-party tender text system (e.g. via ID/key).
2. the user undertakes vis-à-vis NOVA not to create and upload any LV items that violate applicable law. In particular, the user undertakes to comply with applicable law when creating LV items and not to violate any third-party rights (e.g. rights to a name, copyright and data protection rights).
3. the user grants NOVA a spatially, temporally and content-wise unlimited, irrevocable, transferable to third parties, sublicensable, non-exclusive, royalty-free right of use to the LV items created by the user himself. NOVA is entitled to use, edit and exploit the LV items at any time – after automated and GDPR-compliant anonymization of the origin and content. This includes in particular the right of reproduction, the right of distribution and the right of communication to the public, in particular the right of making available to the public.
4. the user waives the right to be named as the author.
§8 Remuneration, payment
1. if the use of the service is subject to a charge, the costs are based on the information in the respective price list.
2. all prices are subject to the statutory value added tax. All payments must be made in advance and can be made using the payment methods offered.
3. if the parties agree on the payment method “direct debit”, the user shall grant NOVA a SEPA basic mandate / SEPA company mandate for the collection of the respective claim due, also for recurring payments and liabilities in varying amounts. The period for pre-notification shall be shortened to 1 day where permissible. The user guarantees to ensure that the account is covered.
4. costs incurred due to non-payment or chargeback of a payment order shall be borne by the user as long as the non-payment or chargeback was not caused by NOVA.
§9 Duties and obligations of the user, backup copies
1. the user selects access data for the purpose of using the service. The user is obliged to keep this access data secret and to inform NOVA immediately of the loss or unauthorized use of the access data by third parties.
2. the user may only use the service for his own business purposes. The use of the service to send advertising of any kind, in particular via the e-mail functions provided, is not permitted.
3. in order to use the service, the user must have an internet connection, an internet-capable end device and an up-to-date internet browser, the costs of which are to be borne by the user.
4. the user is obliged to regularly, but at least daily, back up the data stored in the service, namely the documents created or managed, by downloading them.
5. insofar as the service provides interfaces to third-party systems, the obligation to check the incoming or outgoing data for consistency, completeness, accuracy and timeliness lies exclusively with the user.
§10 Data protection
1. the parties shall comply with the respective applicable, in particular observe the data protection regulations applicable in Germany.
2. if the user collects, processes or uses personal data of third parties, he is responsible for ensuring that he does so in accordance with the applicable, in particular data protection regulations. data protection regulations and indemnifies NOVA against third-party claims in the event of a breach.
3 NOVA provides a sample contract for commissioned data processing, which can be requested and concluded by the customer at any time.
4. please also refer to the current data protection provisions at https://avanova.de/datenschutz
§11 Liability
1. the parties shall be liable to each other without limitation in the event of intent or gross negligence for all damage caused by it and its legal representatives or vicarious agents.
2. in the event of slight negligence, the parties shall be liable without limitation in the event of injury to life, limb or health.
3. otherwise, a party shall only be liable if it has breached a material contractual obligation. Material contractual obligations are those obligations which are of particular importance for the achievement of the contractual objective, as well as those obligations which, in the event of a culpable breach, could lead to the achievement of the contractual purpose being jeopardized. In these cases, liability is limited to compensation for foreseeable, typically occurring damage. NOVA’s strict liability for damages in accordance with §536a BGB for defects existing at the time of conclusion of the contract is excluded, the above paragraphs remain unaffected.
4 Liability under the Product Liability Act remains unaffected.
§12 Term, termination
1. the contract for free use begins with the conclusion of the contract, runs for the specified period and can be terminated by either party without observing a notice period and expires automatically 14 days after registration.
2. the term of the contract for the fee-based use of the service begins with the acceptance of the selected offer and runs for the agreed period. The contract can be terminated by the user at the end of the term by using the functions provided online without observing a period of notice. Otherwise, the termination must at least be in text form; a notice period of 1 working day to the end of the respective term also applies.
3. the term of a contract for a fee-based use of the service is automatically extended by the selected term if it is not terminated in due time.
4. if the user unilaterally ceases to use the service before the end of the notice period, the user will not be reimbursed for any unused remaining term of the contract.
5 NOVA may terminate the contract without notice if the user is in default of payment of the prices or a not insignificant part of the prices for two consecutive months or in a period extending over more than two months with the payment of a fee in an amount equal to the fee for two months. In this case, NOVA may additionally demand liquidated damages due immediately in one lump sum in the amount of one quarter of the monthly basic flat rate remaining until the end of the regular contract term. The user reserves the right to provide evidence of lesser damage.
§13 Amendments to these GTC
1. nova has the right to change the provisions regarding the service to be provided at its reasonable discretion, taking into account the technical requirements and market conditions, insofar as this is reasonable for the user.
2. changes to these General Terms and Conditions will be published in the Service. Changes to the GTC that are not covered by para. 1, the user will be informed in text form. The changes shall become effective unless the user objects to the respective changes no later than 14 days after receipt of the notification of change. The user will be informed of the significance of his silence together with the notification of change.
§14 Final provisions
1. the law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
2. if the user 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 our registered office. The same applies if the user does not have a general place of jurisdiction in Germany or if his place of residence or habitual abode is unknown at the time the action is brought.