General Terms and Condition (GTC)

of abstract ltd, Bruderholzstrasse 32, 4053 Basel, Switzerland („abstract“)

Scope

These General Terms and Conditions (hereinafter "GTC") apply to the software as a service provided by abstract to its customers (“Customer”) on its web platform https://www.abstractbim.com (“SaaS”).

The SaaS consist of online building information modelling (“BIM”) for building performance simulation. Customer uploads building information (e.g. building data, content and/or other information) to abstract via the web platform (“Input Data”) and abstract returns computed building related results as SaaS to Customer (“Output Data”).

In addition to the SaaS, abstract may provide storage space on its servers to Customer.

Structure and Precedence

The Parties agree on the following structure of documents constituting the agreement: (1) any supplementing (online) terms between abstract and Customer, e.g. service selection and pricing terms; and (2) these GTC.

In case of a conflict between the terms the order of precedence in section 2.1 shall prevail. Omitted terms in a document are completed by terms of the subordinate document. In case of a conflict between terms of documents of the same order, the terms of the later document shall prevail over those of the earlier document.

Any general terms and conditions of business or purchase terms of Customer are explicitly excluded.

Provision

The SaaS is provided by remote access, i.e. Internet.

The SaaS is delivered from abstract to Customer at the outgoing router interface of abstract’s data centre. Customer’s access to the Internet, network connection as well as provision and maintenance of the necessary hardware and software is not subject of these GTC.

abstract shall provide Customer the necessary login credentials for the remote access to the SaaS.

Partial delivery of the SaaS is permissible.

Ownership and License

Customer, and its licensors respectively, shall retain ownership and own the Input Data and Output Data. The intellectual property rights pertaining to the Input and Output Data shall vest in Customer, or its licensors respectively.

abstract, and its licensors respectively, shall retain ownership and own the SaaS. The intellectual property rights pertaining to the SaaS shall vest in abstract, or its licensors respectively. abstract, and its licensors respectively, shall own all rights in developments, translations, changes and updates/-grades of the SaaS and any copies made thereof as well as the rights of any decompilation of the software and copies thereof.

abstract grants Customer a non-exclusive, non-transferable, temporary, royalty-bearing and revocable right to use the SaaS on the servers of abstract according to these GTC to generate the Output Data.

The right granted to Customer in section 4.3 is limited to the use of the SaaS within Customer’s organisation and for internal purposes only. The SaaS shall not include the right to sub-license, sell, lease, transfer or otherwise grant third parties a right to use or otherwise access to the SaaS, in parts or in whole.

Customer shall only use components and functional blocks of the SaaS stipulated in these GTC, even if Customer can technically access other (protected or non-protected) SaaS.

The SaaS shall not include any right to use trademarks, company names, or other designations of abstract for advertising purposes or for other publications. Customer shall not, in part or in whole, remove, alter, conceal or hide any intellectual property endorsements, such as, for instance, notices of trademarks, copyrights, patent rights, design rights and other proprietary notices of the SaaS, nor allow any such removal, alteration, concealing or hiding.

Customer shall not, in part or in whole, copy, translate, disassemble, derive the source code from the object code, for example, by decompiling or reverse engineering the SaaS.

Any change of use of the SaaS requires the prior written consent of abstract.

Term and Termination

The agreement between abstract and Customer comes into force on the day of the online acceptance of the SaaS and these GTC by Customer.

The term of the SaaS is dependent of the service model procured and Service Fee paid. The term is extended if and to the extent Customer pays the Service Fee for the next service period.

abstract may terminate the agreement (incl. these GTC) any time with a two (2) month notice period and revoke the online access to the SaaS, if Customer materially breaches the agreement, incl. these GTC. A breach of the terms in sections 4 and 7 or a payment default of more than sixty (60) days is deemed to be a material breach.

Upon termination of the agreement, Customer’s remote access right to the servers of abstract and Customer’s right the use of the SaaS shall ceases immediately. Customer shall entirely and irrevocably delete all login credentials for the remote access. Customer shall inform abstract unsolicited about such deletion. If Customer does not comply with this deletion obligation or if Customer accesses the servers of abstract and/or uses the SaaS after termination of the agreement (incl. these GTC), then abstract shall be entitled to continue invoicing any recurring fees.

Remuneration

Customer shall pay a fee for the SaaS (“Service Fee”). The Service Fee is stipulated in the separate pricing schedule of abstract at https://www.abstractbim.com/#pricing. The Service Fee is due in advance, the latest on the day the SaaS is provided.

The Service Fee is also due by Customer even if the remote access to the servers of abstract (or its service provider) is down and/or the SaaS occurs by unauthorised third parties with the remote access credentials of Customer.

Consulting or maintenance services and remuneration theirefor compensation are stipulated in separate agreements.

abstract uses third-party payment service providers for settlement of the Service Fee. Their general terms and conditions apply to their services.

Unless stipulated otherwise in the agreement, all amounts exclude any applicable VAT. VAT shall be added to the invoice by abstract and is due by Customer.

Customer shall be liable for any interest on overdue payments under these GTC commencing on the date such payment becomes due. The annual interest rate shall be five per cent (5%) per year. abstract may invoice reminder charges.

Customer’s Obligations

Customer shall be responsible and accountable for the selection, provision, installation, implementation, system requirements, use and maintenance of the necessary hardware, software and network services for (i) the remote access up to the router interface of abstract’s data centre, and (ii) the use of the SaaS.

Customer shall be responsible for the security of any Input Data that is transmitted to, or stored on, the servers of abstract by Customer. Customer shall remain responsible at all times for securing and backing up its systems and its Input Data and Output Data (e.g. business recovery).

Customer shall protect its, and its own users’ respectively, login, identification and authentication credentials for the remote access to the servers of abstract from access by unauthorized third parties and shall not disclose any such credentials to any unauthorised third parties. Customer shall inform abstract immediately if there are indications that an unauthorised third party has obtained access to the login, identification or authentication credentials, or if such credentials could be misused.

Customer shall not, nor allow others to, misuse the SaaS. In particular, Customer shall not transmit, or allow others to transmit, any Input Data, which are illegal or which infringes copyrights and/or other intellectual property rights of third parties, to the servers of abstract. Customer shall remain responsible for its own, and for its users’ respectively, Input Data.

Customer shall refrain from retrieving information or data by unauthorized access or by access of an unauthorized third party. Customer shall also refrain from accessing the SaaS, or from penetrating data networks, without authorisation of abstract.

Prior to any remote access or transfer of Input Data by Customer, and/or by end users of Customer, Customer represents that all Input Data have been scanned with state-of-the-art anti-virus programs.

If the Input Data transferred by Customer infringe third party rights, then abstract may disable such Input Data in parts or in whole. In such event Customer shall either provide or acquire the necessary rights to access and process such Input Data. If Customer does not comply with this request, abstract shall be entitled to delete the Input Data and/or terminate the agreement for cause without notice. Customer shall defend, indemnify and hold abstract harmless in case of any third party claim regarding the Input Data uploaded to and stored on the platform as well as processed during the SaaS. abstract’s rRight to claim damages remains reserved.

Customer remains responsible for any use of Output Data by it, its customers or other third parties.

Customer agrees that the personal data of its employees/contractors is processed by abstract for fulfilment of the SaaS pursuant to the separate privacy policy, accessible here. Subject to the foregoing, Customer warrants and assures that no personal data within the meaning of the data protection laws, which are generated or processed during the provision of the SaaS, will be transmitted to abstract. In the event of any data protection queries or claims in this regard, Customer shall indemnify and hold harmless abstract in full.

Representation and Warranty

abstract represents that the SaaS are provided with diligently and with due care.

Customer shall have no claim of warranty of goods and services and/or of warranty of title against abstract beyond section 8.1. In particular, abstract represents and warrants neither merchantability, nor that the SaaS works without interruption, free of errors and/or under all possible operating conditions, nor that abstract will correct (for avoidance of doubt also work-around) all defects of the SaaS, nor that the SaaS and/or Output Data do not infringe third party rights.

abstract explicitly excludes any and all representations and warranties with regard to the Output Data, in particular, but not limited to, results of simulations, structural analysis, and/or energy consumption. Customer shall defend, indemnify and hold abstract harmless against any third party claim with regard to Output Data. abstract’s right to claim damages remains reserved.

Customer shall remain responsible for any back-up and restore of Input Data and Output Data. Customer shall arrange for business recovery, such as, for example, periodic reviews, error diagnostics, work-arounds and data backups. Customer acknowledges and agrees that after termination of these GTC any remote access to the servers of abstract shall cease. abstract does not warrant that the Input Data and/or Output Data may be retrieved after termination of these GTC.

Any warranty under this section 8 shall be voided if Customer misuses the SaaS, modifies the SaaS without authorisation, grants third parties access to the SaaS, removes trademarks and other identifications of abstract, or if the error claim is not substantiated enough or not submitted on time.

Subject to explicit written confirmation by abstract, any technical data, specifications and descriptions provided in any documentation shall not qualify as representations.

Freemium SaaS is provided “as is”, without any representations and warranties of any kind.

License on Input and Output Data

Customer grants abstract a non-exclusive, transferable, unlimited, irrevocable, perpetual, royalty-free and worldwide right to use Input Data and Output Data (i) for the comparison, analysis and optimization of the SaaS as well as (ii) for analysis of products and services within the Output Data and for offering new services and products based on such analysis. This right includes the right to grant sublicenses to abstract’s subcontractors; and the right of such sublicensees to exercise and all of the foregoing rights.

Customer represents and warrants to abstract that the Input Data and Output Data is non-confidential and that abstract may use the Input Data and Output Data for the purpose agreed in section 9.1.

Limitation of Liability

To the extent permissible by applicable law, abstract’s and its subcontractors aggregated liability during the entire (cumulated) service term(s) for any and all direct damage occurring under, or in connection with, the SaaS (incl. GTC) is limited to the Service Fee received by abstract in the past twelve (12) months immediately preceding the damage claim.

Except as expressly required by law without the possibility of contractual waiver, under no circumstances is abstract or its subcontractors liable for any of the following even if informed of their possibility:

- loss of, or damage to, data;
- special, incidental, exemplary, indirect, or consequential damages; or
- lost profits, business, revenue, goodwill, or anticipated savings.

General Provisions

Each party is an independent contractor and shall independently establish prices and terms for its services and/or products. Neither party is, nor will claim to be, a legal representative of the other party. These GTC does not create a joint venture, employment relationship or agency relationship between the Parties.

Customer agrees that contact information may be disclosed to, and processed and used by, abstract and its affiliates and their subcontractors and business partners in the pursuit of the business relationship, including the marketing of products and services, between the Parties.

abstract may reference Customer as its customer for its own marketing and public relations purposes. Customer herewith grants abstract a non-exclusive, royalty-free, and worldwide right to use Customer’s trademark for such purposes. This license shall survive the term of these GTC and is granted until revoked in writing by Customer.

Except as expressly provided in these GTC, neither party grants the other party, whether directly or by implication or otherwise, any patent, copyright, trademark, trade secret, know-how, or other intellectual property right. No party shall remove or alter any symbols or legends indicating any intellectual property right.

Except as explicitly provided in these GTC, Customer may not assign, or otherwise transfer, its rights or delegate its obligations under these GTC without the prior written consent of the abstract.

Neither party shall be liable for any failure or delay in the performance of its obligations under these GTC if such failure or delay is due to a force majeure event, such as without limitation, acts of God, fire, flood, natural catastrophe, power surges, acts of any government or of any civil or military authority, national emergencies, riots, vandalism, terrorism, war, insurrection, strikes, or any occurrence beyond the reasonable control of such party.

Any general terms and conditions of Customer are explicitly excluded, even if provided after the effective date of these GTC, e.g. in any purchase order.

These GTC may only be amended by a writing signed by authorized representatives of the Parties.

If any provision of these GTC is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired as long as the intent of the parties can be preserved. In such cases, both Parties undertake to replace the invalid, illegal or unenforceable provision with another valid, legal and enforceable regulation. The same principle applies to open terms or omissions.

These GTC is governed by Swiss law, without regard to the conflict of laws provisions. The United Nations’ Convention on International Sales of Goods of 11 April 1980 (SR 0.221.211.1) does not apply.

Place of jurisdiction for any dispute arising from, or in connection with, these GTC shall be exclusively the competent courts of the city of Basel Stadt (BS) Switzerland.

abstract ag, SaaS GTC, 13. April 2020

Privacy Policy

This policy was last updated on 10th of March 2020

Scope

This privacy policy stipulates how abstract ltd, Bruderholzstrasse 32, 4053 Basel, Switzerland (hereinafter "abstract" or "we") processes personal data of its webusers and customers ("you") who provide personal data on its website and/or mobile applications (“website”), whether these personal data are provided by the data subject or by a third party, and whether personal data are transmitted to abstract via the website or via other means.

Contact

You can contact us as follows:
abstract ltd, Bruderholzstrasse 32, 4053 Basel
E-mail: info@abstract.build

You can contact our data privacy officer as follows:
E-mail: privacy@abstract.build

General

abstract‘s business scope is the provision of software as a service platform for building professionals of the worldwide AEC industry for cost, energy and functional simulations. On our website we offer information about our business, our products and services, an online shop as well as feedback, forum and blogging opportunities.

We adhere to data protection law. All personal data collected during registration on, or during use of, our website, which are protected either by the Swiss Federal Act on Data Protection (hereinafter "FADP") or the European General Data Protection Regulation (hereinafter "GDPR"), will be used exclusively for fulfilling our services to you; unless, in particular pursuant to this privacy policy, you have consented to further use of your personal data or the applicable law permits such further use. Our employees are obliged to treat personal data confidentiality.

As we process most personal data electronically, we have taken appropriate IT organisational and technical measures (e.g., IT security) to ensure that your personal data is protected. We also regularly educate our employees in data protection and information security.

What Personal Data is Collected for What Purpose

We may collect your master data (name, address, e-mail, etc.), personal data about the services obtained, payment transaction data, online preferences, and your feedback.

We use your personal data to communicate with you and third parties; for evaluating, concluding and performing our transactions with you; for billing purposes; or for market research and marketing, such as contacting the customer by postal mail or e-mail. We might also add industry information and interests to your master data in our database.

Input fields on the website that are absolutely necessary for the provision of our services are marked accordingly during registration. The disclosure of personal data in non-marked input fields on the website is voluntary. You can inform us at any time that you no longer wish us to process your personal data you provided voluntarily (cf. section 12, Your Rights).

We may collect personal data about your financial standing in order to protect ourselves against payment defaults.

Furthermore, we collect your surfing and usage data when you access our website. This data includes, for example, information about which browser and browser version you are using, when you accessed our website, which operating system you use, from which website (link) you accessed our website, which elements of the website you use, and how you use these elements. These personal data are stored together with the IP address of the device you are using to access our website. They serve to correctly display and optimise our website, to protect it against attacks or other infringements, and to personalise your user experience. We do not draw any conclusions about the data subject from these surfing and usage data. We only evaluate personal data anonymously, unless they are required to clarify infringements.

Retention Period

We only process personal data until the purpose, for which it was collected, is fulfilled, or as required by law.

If you have opened an account with us, we will store the master data you provided for an unlimited period of time. However, you can request the deletion of your account at any time (cf. section 12, Your Rights). We will delete your master data, unless we are required otherwise by applicable law.

If you placed an order without opening an account, your master data will be deleted after the expiry of the services or warranty period (as applicable), unless we are required otherwise by applicable law. This deletion can take place immediately or in the context of periodically executed deletion runs.

To refuse further business contact with a data subject due to misuse, payment default, or other legitimate reasons, we may store personal data for five years, or ten years in case of recurrence.

Processing by Third Parties and Abroad

Within the purpose agreed herein, we may have personal data processed by our group entities or third parties. Such third parties are marketing and market research companies, companies that operate our information technology (outsourcing partners), financial service providers, debt collection companies, or attorneys and government bodies. If we commission group companies or third parties with the processing of personal data, the third party will be carefully selected and must take appropriate security measures to guarantee the confidentiality and security of your personal data.

We or the third parties may process personal data abroad, i.e. in European or non-European countries. We represent that the third parties will only use personal data according to the law and exclusively in the interest of abstract. These necessary contractual guarantees provided by the third parties are based on the standards of the European Commission (also recognised in Switzerland). You have the right to inspect the guarantees in these contracts (or parts thereof).

We have engaged the following third parties as sub-processors:

• Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA;
• YouTube LLC, 901 Cherry Avenue, San Bruno, CA 94066, USA;
• HubSpot, Inc., 25 First Street, 2nd Floor, Cambridge, MA 02141 USA;
• Adobe Systems Incorporated, 345 Park Avenue, San Jose, CA 95110-2704, USA;
• Amazon Web Services (AWS), Amazon Web Services, Inc., 410 Terry Avenue North, Seattle WA 98109, USA;
• DocuSign UK Limited, 9 Appold St, London EC2A 2AP, UK;
• Microsoft Ireland Operations Limited, One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, Irland;
• Squarespace, Inc.225 Varick Street, 12th Floor,New York, NY 10014, USA;
• The Rocket Science Group, LLC 675 Ponce de Leon Ave NE Suite 5000. Atlanta, GA 30308 USA;
• Twilio, Inc. LLC 675 375 Beale St #300, San Francisco, CA 94105 USA;

Analytical services

We use third-party services to analyse surfing behaviour. We also integrate content of third party websites.

We measure and evaluate the use of the website with analytical tools.

Personal data processed by analytical services are transmitted anonymously to servers of the commissioned third parties abroad, including the USA.

Inclusion of Third Party Elements on Our Web Site

Our website includes content from various third party providers, such as, for instance, videos from video platforms, such as, YouTube, or social media button from platforms such as Facebook or Twitter. This content enables our visitors to enjoy content from those platforms on our website or simply to share our content on the relevant social media networks.

When you browse our website, if such content is displayed as part of the website, a connection to the servers of the third party provider is automatically established. Personal data about your visit to our website, in particular your IP address, will be transmitted to this third party provider. Therefore, if you have signed in to that third party’s account at the time you visit of your website (for example, with a Facebook or Google account), that third party may detect that you visited our website. You authorise us to share this information with the third party provider that hosts your account.

Please note that the information regarding the purpose and scope of data processing by such third parties, as well as your rights and setting options, is provided by such third parties.

Cookies and Pixel Tags

We use cookies and tracking pixel on our website.

Cookies are data packets sent from the webserver of our website to your browser. They are stored on your computer and can be retrieved by the webserver at a later visit. Cookies store information about the online preferences of visitors to the website and enable us to improve the visitor experience.

Session cookies are used to uniquely assign to you or your Internet browser information stored on the webserver that are necessary when accessing the website (e.g., the online shop) during a web session (e.g., so that the contents of the shopping basket are not lost). Session cookies are deleted after closing your Internet browser.

Permanent cookies are used to save your preferences (e.g., preferred language) over several independent accesses to our website, i.e. even after closing your Internet browser or to enable automatic login. Permanent cookies are deleted according to the settings of your Internet browser (e.g., one month after your last visit). By using our website and the corresponding functions (e.g., language selection or auto login) you agree to the use of permanent cookies.

You can delete current session or existing cookies in your Internet browser at any time, and deactivate the setting of additional cookies in your browser settings. However, deactivation may affect the functionality you enjoy on our website.

Pixel tags (e.g., tracking pixel, web beacons, clear GIFS, or canvas) are small graphics that are loaded into your Internet browser when you open our website or HTML emails. Our webserver (the webserver of our hoster respectively) logs information (e.g., date and time of your web visit or your opening of the HTML e-mail) about your web access each time your Internet browser or e-mail program loads a tracking pixel. The tracking pixel also enables the transmission of browser data, such as information about the device you are using to access the website (e.g., screen resolution or IP address).

Legal Bases of Processing

The legal justification, upon which we base our processing of personal data, is stipulated in article 13(2)(a) FADP (processing directly related to the conclusion, or the settlement, of a contract; corresponding to article 6(1)(b) GDPR; and article 13(1) FADP (consent of the data subject or obligation to process by law) corresponding to article 6(1)(a) GDPR.

We reserve the right to store the first name and surname, postal address, and e-mail address of a data subject pursuant to article 13(1) FADP (corresponding to article 6(1)(f) GDPR) if, based on misuse, non-payment or similar legitimate reasons, we refuse to conclude any future contracts with data subjects.

Furthermore, group entities may also process personal date pursuant to article 13(1) FADP (corresponding to article 6(1)(f) GDPR).

Your Rights

Upon request, we will inform the data subject about and - if so - which personal data we process about him or her (right of confirmation, right of access).

At your request:

• We will cease processing personal data, in part or in full (right to withdraw your consent to the processing of personal data for one or more specific purposes; right to erasure (right “to be forgotten”)). Your request to be forgotten will also be communicated to third parties to whom we have previously forwarded your personal data.
• We will correct the relevant personal data (right to rectification).
• We will restrict the processing of the relevant personal data (right to restriction of processing; in this case we will only store or use your personal data to protect our own legal claims or the third party rights.
• You will receive the relevant personal data in a structured, commonly used and machine-readable format (right to data portability).

To request any of the rights described in this section, for example if you no longer wish to receive our e-mail newsletters or if you wish to delete your account, please use the appropriate function on our website, or contact our data protection officer or an employee as described in section 2 (Contact).

If we do not comply with your request, we will inform you of the reasons for our non-compliance. For example, we may legally refuse to delete your personal data if we still need it to fulfil the purpose, for which it was originally provided (for example if we continue providing our services to you), if the processing is based on mandatory law (for example mandatory accounting regulations), or if we have a predominant interest of our own (for example in the case of a lawsuit against the data subject).

If we assert a predominant interest in the processing of personal data, you have nevertheless the right to object to the processing; provided, however, that your individual situation compares differently to that of other data subjects (right to object). This could be the case, for example, if you are a person of public interest, or if processing increases the risk of you being harmed by third parties.

If you disagree with our response to your request, you have the right to file a complaint with a competent supervisory authority, for example, in your country of residence or at the registered seat of abstract (right to appeal).

Severability and Changes

If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired as long as the intent of the Parties can be preserved.

Due to the further development of our website and offers or due to changed legal or official requirements, it may become necessary to change this data protection declaration. You will be informed about the changes.

Applicable Law and Place of Jurisdiction

This privacy policy and any agreements concluded based on, or in connection with, this privacy policy, as the case may be, are governed by Swiss law, unless the applicable law of another country is applies mandatorily. The place of jurisdiction is the registered seat of abstract, unless a different place of jurisdiction applies mandatorily.