1. Scope of Application
1.1. Propstack provides, with its Propstack CRM, an efficient administration and marketing software tool for real estate agents, available and accessible via the Internet. The software solution serves to support the execution of business processes from property to office management, as well as prospect and customer management. The provision of Propstack CRM and its use by the CUSTOMER, as well as the provision of further services provided by Propstack in this context, is based on these General Terms and Conditions (hereinafter referred to as “GTC”) unless otherwise specified and/or agreed upon in individual contractual agreements.
1.2. Conflicting or deviating terms and conditions of the CUSTOMER are not part of the contract and will not be recognized as such unless Propstack has agreed to their validity. This rule also applies if Propstack performs its services without reservation in the knowledge of conflicting or deviating terms and conditions of the CUSTOMER.
1.3. The CUSTOMER may only transfer rights and obligations from contracts concluded with Propstack to third parties with the consent of Propstack. This is without prejudice to the provision of § 354a HGB.
2. Scope of Services and Performance
2.1. Propstack offers are subject to change. The offers expire after ten calendar days from the execution date unless otherwise agreed upon and/or specified.
2.2. Propstack provides the Propstack CRM tool to its CUSTOMERS as a “Software as a Service” (SaaS), i.e., it operates the software in a data center and provides the CUSTOMER with the storage space required for the use of the said application. This also includes the necessary data storage. The use of the application by the CUSTOMER requires that the CUSTOMER accesses the application via an internet connection. The Internet connection is to be ensured by the CUSTOMER and is not part of the services provided by Propstack.
2.3. The type, content, and scope of the services to be provided by Propstack results from the offer made, the contract, and the services and/or product description of Propstack, underlying the respective offer and/or contract.
2.4. Propstack is entitled to change and adapt the content of its services, in particular the software provided, within the framework of technological, user-interface-related, or content-related further developments, provided that the agreed functionalities are not restricted or impaired as a result.
2.5. Propstack is entitled to use vicarious agents to fulfill its contractual obligations and to transfer the rights and obligations under the contracts in whole or in part to third parties.
3. Availability of Propstack CRM
3.1. Propstack guarantees the availability of Propstack CRM of 99.5% on a monthly average unless the parties have agreed otherwise. It is to be noted, that a corresponding guarantee is not associated with this.
3.2. Propstack CRM is considered available when the servers on which the application is operated are connected to the internet and the agreed functionalities of Propstack CRM are without significant defects at the time of as well as during the agreed upon maintenance window (3.3.).
3.3. In order to maintain the quality and security of Propstack’s services, maintenance windows (shutdown periods) of a total of no more than three hours per month are agreed upon, during which Propstack CRM is scheduled to be unavailable. During these maintenance hours, Propstack CRM will be considered available despite the shutdown. In scheduling such maintenance windows, Propstack will consider the legitimate concerns of all customers. Propstack will endeavor to schedule maintenance windows so that they are outside of normal business hours (Weekdays – Monday through Friday excluding Public Holidays in Berlin, Germany – from 9:00 a.m. to 6:00 p.m. CET/CEST). The scheduled maintenance windows shall also be announced at least two weeks prior to the scheduled shutdown via the e-mail address provided by the CUSTOMER.
3.4. The measurement period for availability is the calendar month.
The time availability is calculated according to the following formula:
Availability [%] = Minist / (MinMess – MinWart) * 100.
The following applies in relation to the measurement period,
i.e., the respective calendar month:
Minist = the number of minutes of actual availability of the application.
MinMess = the number of minutes of the measurement period
MinWart = the number of minutes of the shutdown times during the agreed maintenance windows.
3.6. Propstack is not liable for disruptions in availability due to events of force majeure. Theft, general disruptions to the internet and/or other circumstances equivalent to force majeure, are insofar, as they are unforeseeable and/or serious in nature, not the fault of Propstack. Propstack will inform the CUSTOMER immediately of the occurrence of such events, to the most possible and reasonable extent under given circumstances.
3.7. In no event shall Propstack be liable for disruptions in availability caused by the CUSTOMER, its telecommunications service provider, its access provider, the customer’s mobile communications provider, or any other third party attributable to the customer.
4. User Accounts & Permitted Number of Users
4.1. The permissible use of Propstack CRM by the CUSTOMER is limited to the agreed number of user accounts with an e-mail address assigned to that account. The number of user accounts is a significant factor in the calculation of fees.
4.2. Propstack shall provide the CUSTOMER with the access data required for the use of Propstack CRM for identification and authentication purposes. The CUSTOMER is not permitted to provide this access data to third parties who are not employees of the CUSTOMER or who have a legitimate interest in access in individual cases, e.g., notaries and/or property developers. The CUSTOMER shall notify Propstack of new additional user accounts prior to their use so that an adjustment to the fee calculation can be immediately made.
4.3. The CUSTOMER is obliged to name Propstack all users, who intend to use the software. The CUSTOMER is also obliged to notify Propstack of any changes in the assignment of users or user accounts caused by organizational, staff changes and/or similar changes.4.4. The CUSTOMER is obligated to keep the access data transmitted to them, enabling the use of Propstack CRM, confidential and to ensure that misuse by third parties is at all times prevented. The CUSTOMER is also obliged to inform Propstack immediately if there are indications that access data assigned to him/her has reached 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
Propstack is entitled to all rights of use, know-how, and other property rights to Propstack CRM. Propstack grants the CUSTOMER and the users designated by the CUSTOMER a non-exclusive, non-transferable right of use thereto, limited to the term of the contract, to the extent necessary for the agreed use of the services.
6. Duties and Responsibilities of the CUSTOMER
6.1. The CUSTOMER is obliged to cooperate appropriately in the provision of the contractual service. The special circumstances of software and IT services as well as projects must be taken into account, as their regularly high level of complexity and customer focus, require close and trusting cooperation between the contracting parties. The cooperation of the CUSTOMER is therefore an essential contractual obligation. The CUSTOMER shall create all the prerequisites required for the provision of services by Propstack that have been agreed upon or are within their area.
6.2. The CUSTOMER shall inform Propstack, without being requested to do so, and in a timely manner, of all circumstances and events that are of significance for the performance of the agreed services.
6.3. The CUSTOMER has to take care of an adequate data-backup of the data (also) in his access. This applies to data that is merely duplicated in Propstack CRM or uploaded by the CUSTOMER, such as e-mails, contact information, exposés, or similar. CUSTOMER shall back up the data transmitted to Propstack on a regular and proactive basis and shall create their own backup copies to ensure reconstruction of the data and information in the event of loss. Propstack shall also provide the CUSTOMER with appropriate means for automatic backup suitable for reconstruction by Propstack.
6.4 The CUSTOMER is further obligated to:
– check materials that are provided or uploaded by them via the Propstack CRM in advance for viruses or similar;
– not misuse Propstack CRM or allow it to be misused by others; in particular not to violate applicable law (laws, ordinances, and/or official provisions) or common decency, as well as not to conduct any use that is unreasonable for Propstack;
– not to upload any documents or other content to Propstack CRM that infringes third party rights (e.g., third-party copyrights or industrial property rights);
– not to misuse the possible exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming).
6.5. The provisions of this Section 6 are not conclusive and do not affect other obligations of the CUSTOMER, in particular those arising from these GTC, individual agreements between the parties, or the law.6.6. In the event that claims are made against Propstack by third parties, and this is based on a culpable breach of duty by the CUSTOMER, the CUSTOMER is obliged to indemnify Propstack from such claims and to indemnify Propstack against all damages arising in this connection, including statutory or – insofar as these are not statutorily regulated – standard market legal fees.
7. Special obligations of the CUSTOMER when using E-mail functions and portal interfaces in Propstack CRM
7.1. As part of the agreed scope of services of Propstack CRM, a functionality may be included that enables the CUSTOMER to connect Propstack CRM to the customer’s e-mail server. This enables the CUSTOMER to initiate the sending of e-mails from Propstack CRM and to display sent and received e-mails from certain CUSTOMER e-mail accounts in Propstack CRM. The actual sending and receiving of the e-mails take place solely via the CUSTOMER’s e-mail program or e-mail server. Since problems can arise, particularly when sending e-mails, due to technical faults over which Propstack has no influence, e.g. faults in the Internet connection between the data center in which Propstack CRM is operated and the CUSTOMER’s e-mail server, the CUSTOMER is obliged to check, especially in the case of e-mails that are important to him, after initiating the sending of an e-mail from Propstack CRM, whether the e-mail was actually sent via the e-mail program or the e-mail server of the CUSTOMER.7.2. When using the portal interfaces (e.g. to ImmobilienScout24, Immonet, Immowelt, etc.) within Propstack CRM, the CUSTOMER is obliged to independently check whether the transmission of content, e.g. exposés, to the respective portals was successful, as problems can also occur here due to technical faults over which Propstack has no influence, e.g. faults in the Internet connection between the data center in which Propstack CRM is operated and the respective portal server.
8. Terms of Payment
8.1. The prices specified in the offer to the CUSTOMER apply to the services provided by Propstack. All prices are net prices and do not include any sales tax, customs duties, and other levies that may be payable.
8.2. Invoicing takes place exclusively in electronic form by e-mail to the e-mail address stored by the customer at Propstack. A parallel dispatch of the invoice in paper form only takes place at the express request of the customer and against reimbursement of the costs incurred by Propstack.
8.3. Payments can be made by bank transfer or SEPA direct debit.
8.4. The monthly provision or license fees are due on the first of each month in advance. The remuneration for other services is due upon the provision of the respective service.
8.5. Counterclaims that the CUSTOMER bases on material or legal defects in the services provided by Propstack may only be offset by the CUSTOMER against claims by Propstack insofar as the amount set off for offsetting does not exceed the reduced value of the service concerned due to the defect or the expected costs of subsequent performance or rectification of the defect. Otherwise, offsetting against Propstack’s claims is only permissible with undisputed or legally established counterclaims.
9. Default Payment (Late Payment)
9.1. If the CUSTOMER is in arrears with his payment obligations, Propstack is entitled to refuse the provision of its services after prior notification by letter or fax to the customer; this also includes blocking the CUSTOMER’s access to Propstack CRM. If the CUSTOMER’s default only relates to partial payment, Propstack cannot refuse its services insofar as the refusal would violate good faith under the circumstances, in particular due to the relatively insignificant nature of the part in arrears. In the event of a justified refusal of performance by Propstack due to late payment, the CUSTOMER remains obliged to pay the agreed monthly provision fee.
9.2. If the CUSTOMERS come …a) for two consecutive months with the payment of the respective monthly bills orb) in a period that extends over more than two months, with the payment of the fee in an amount that reaches the agreed fee for two months in default, Propstack is entitled to terminate the contract without notice.
10. Term and Terminations
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 has expired, the contract is automatically extended by a further twelve months, unless it is terminated at the end of the respective term with a notice period of two months. Partial termination of the contract for only part of the agreed user accounts is not permitted.
10.3. The possibility of termination for good cause remains unaffected.
10.4. Cancellations must be made in writing. Fax or electronic transmission is not sufficient.
10.5. If the CUSTOMER books additional users during an ongoing contractual relationship, the term of the original contract applies to the contract for these additional users.
11. Deadlines and Dates
11.1. The dates for the provision of services stated in the offer or in other documents are generally non-binding planned dates. Only deadlines that are expressly designated as binding are deemed to be as such.
11.2. If Propstack is prevented from meeting a delivery or service date due to unforeseen circumstances that are beyond the control of Propstack or its vicarious agents and the occurrence of which Propstack is not responsible, these deadlines shall be extended appropriately, but at least by the duration of such obstacles. Examples of such circumstances are force majeure, industrial action, network failure, or general telecommunications disruptions.
11.3. Propstack is not responsible for delays due to circumstances for which the CUSTOMER is solely or largely responsible (delayed provision of cooperation services, delays caused by third parties attributable to the CUSTOMER, etc.). In these cases, Propstack is entitled – without prejudice to any further claims – to postpone the provision of the services concerned for a period of time appropriate to the duration of the existence of the aforementioned circumstances.
12.1. Propstack guarantees that the services owed correspond to the requirements described in more detail in the contract, and in the service and/or product description. Propstack also guarantees the connection of Propstack CRM to the internet.
12.2. If the services owed by Propstack deviate from the contractual agreements, the CUSTOMER must report these defects immediately, describing the defect and the circumstances under which it occurred as precisely as possible. The CUSTOMER will, if possible, make a screenshot of error messages and/or the appearance of the defect and make it available to Propstack. Propstack will then remedy the defect within a reasonable period.
12.3. The CUSTOMER’s right of termination due to non-granting of use is excluded unless the establishment of the contractual use is to be regarded as having failed. A failure to establish the contractual use can be assumed at the earliest if Propstack does not remedy a major defect within a period of three weeks from receipt of the notification of defects or provides a suitable workaround solution and the CUSTOMER has properly provided the cooperation services incumbent on him in this context. The CUSTOMER is not entitled to terminate the contract due to minor defects.
12.4. Any no-fault liability on the part of Propstack for defects present at the time of the conclusion of the contract is excluded.
12.5. The limitation period for all claims for defects by the CUSTOMER, including claims for damages, is (except in the case of intent) one year from the start of the statutory limitation period.
12.6. If the CUSTOMER has claimed against Propstack because of the warranty and it turns out that there is either no defect or that the claimed defect does not oblige Propstack to provide a warranty, the CUSTOMER must reimburse the expenses incurred if the claim against Propstack was due to gross negligence or willfully responsible for.
13.1. The contracting parties undertake to treat confidentially trade and business secrets that they – including their vicarious agents – have obtained during the initiation of the contract or the fulfillment of the contract. These obligations do not apply to information, knowledge, and experience that:
13.2. The party wishing to invoke the exception bears the burden of proving the existence of the exceptions listed above.
14. Data Protection & Privacy
14.1. Both parties undertake to observe the relevant data protection regulations as part of their cooperation.
14.2. The CUSTOMER is responsible for ensuring that they are authorized to process personal data in Propstack CRM in relation to the data subjects.
14.3. Propstack CRM is hosted in a third-party data center. The processing and use of the data takes place exclusively in the territory of the European Union. Any relocation to a third country requires the prior consent of the CUSTOMER and may only take place if the necessary legal requirements are met.
15.1. The following provisions apply only insofar as nothing else results from a different liability regulation in the contract concluded between the parties.
15.2. Propstack is liable in accordance with the statutory provisions for damage to the CUSTOMER caused by intentional or grossly negligent behavior by Propstack or its vicarious agents. The same applies to personal injury and damage under the Product Liability Act.
15.3. Otherwise, Propstack’s liability for claims for damages is limited in accordance with the following provisions, unless otherwise stated in a guarantee provided by Propstack:a) Propstack is only liable for damages caused by slight negligence if they are based on the violation of essential contractual obligations (cardinal obligations). Cardinal obligations are such contractual obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the CUSTOMER could rely. Insofar as Propstack is liable for simple negligence, Propstack’s liability is limited to the typically foreseeable damage, unless there is a lower liability due to statutory provisions.b) Propstack’s liability for the loss of data and/or programs caused by slight negligence is limited to the typical recovery effort that would have been incurred if the CUSTOMER had backed up data regularly and appropriately under the circumstances.
15.4. The provisions of the above paragraph also apply accordingly to a limitation of the obligation to compensate for futile expenses (§ 284 BGB).15.5. The above limitations of liability also apply to Propstack’s vicarious agents.
16. Changes to the general terms and conditions and prices
Propstack is entitled to make changes to these General Terms and Conditions in accordance with the following provisions:
16.1. Changes to these General Terms and Conditions (GTC) will be communicated to the CUSTOMER in writing and timely manner before the change occurs. The CUSTOMER can object and contradict the change, in accordance with Clause 16.2.
16.2. The CUSTOMER must declare his objection to Propstack in text form and in accordance with Section 16.1 within 4 weeks of receipt of Propstack’s notification of the change to the GTC. The deadline is only met if the objection is received by Propstack within the timeframe of the deadline. If the CUSTOMER does not object in due form and time, the change to the GTC shall be deemed to have been approved; Propstack will expressly refer to this and to the form and deadline for the objection in the notification of the change to the GTC. If the CUSTOMER objects to the change to the GTC in due form and time, the contract will remain unchanged. In this case, however, Propstack has the right to extraordinarily terminate the contract with a notice period of four weeks by written declaration to the CUSTOMER, if it is economically or technically impossible or unreasonable for Propstack to adhere to the unchanged contract.
17. Final Provisions
17.1. This contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
17.2 The exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants, legal entities under public law, or special funds under public law shall be Berlin. The same place of jurisdiction shall apply if the CUSTOMER does not have a general place of jurisdiction in Germany, relocates its (place of) residence or habitual abode outside Germany after the conclusion of the contract, or if its place of residence or habitual abode is unknown at the time the action is brought.
17.3 Should individual provisions be missing, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the ineffective or missing provisions shall be replaced by the provision that comes closest to the intended purpose. Furthermore, the parties are obliged to work towards provisions that achieve a result that comes as close as possible to the invalid or missing provision in economic terms. This clause shall not apply to these General Terms and Conditions themselves.