Upbore
Terms of Use

1. Subject of the contract

1. Upbore GmbH, Am Postbahnhof 21, 10243 Berlin ("Provider") operates the "Upbore" Platform ("Platform") via the Internet. The use of the Platform is exclusively subject to these Terms of Use. General terms and conditions of the Users do not apply.
2. These Terms of Use are directed exclusively at commercial Users and regulate the contractual relationship between the Provider and the person or partnership with legal capacity specified at the registration, who, upon conclusion of these Terms of Use, is acting in the exercise of their commercial or independent professional activity ("User"). By concluding these Terms of Use, the User affirms that he is an entrepreneur within the meaning of section 14 BGB (German Civil Code) and is acting in the exercise of his entrepreneurial capacity.

2. Functional scope of the Platform and changes

1. On the Platform, principals and contractors of commercial contracts or tenders can network and exchange Project information on planned construction Projects. For this purpose, Users are given the opportunity to create their own User profiles, upload Content and/or call up Content and information from other Users.
2. The current range of functions of the Platform can be found in the functional description available at www.upbore.com.
3. The Provider reserves the right to continuously develop the Platform and to extend its range of functions or to adapt or restrict it to an appropriate extent.
4. The Provider can make changes to these Terms of Use reasonable for the User. Changes to these Terms of Use become part of the contract if the changes have been notified to the User by e-mail or on the Platform, the User does not object within four weeks of receipt of the notification and the Provider has expressly pointed out this consequence to the User in the notification of change. If the User objects to the changes in due time, the changes will not become effective for the User. In this case, the Provider has the right to terminate the contract without notice if continuation of the contract without the changes is impossible or unreasonable for the Provider. Other possibilities for changes are not limited by this clause.

3. Registration, User categories

1. The Platform can be visited to a limited extent without registration. Registration is required to take advantage of the functions of the Platform. When registering, the User must provide truthful information completely, correctly, on time and free of charge and undertakes to inform the Provider immediately of any changes to the registration data.
2. Registration is free and after registration the User has an Upbore Basic package for which there is no monthly fee and has limited access to the functions of the Platform. The User who wants to have full access to all the functions of the Platform can provide payment information in the Platform settings and change their package into a UPBORE Pro package that is paid on a monthly basis in accordance with the offer contained in the Users settings.
3. The User has no claim to admission to the Platform.
4. The Provider reserves the right not to enter into agreements on the use of the Platform with individual persons or companies, in particular competitors of Provider, and to refuse these interested parties the use of the Service and of those parts of the Platform requiring a registration.
5. Upbore shall have the right to offer the Service to any person, including such persons who are potential competitors to the Users. Any protection against competitors is excluded.
6. The User is responsible for a confidential handling of the access information and will in particular not pass on the password for the User account to unauthorized third parties. In the event of fraudulent, abusive or otherwise illegal use of the access information, the Provider may immediately block the access authorization.
7. When registering, the User must select a User category. The following User categories are available:
1. Developer

Developers can publish Projects on the Platform for architects, general contractors and subcontractors.

2. Designer

Architects, engineers and designers can register as Designers. Designers can publish Projects for their clients and place orders with third parties.

3. Contractor

Contractors can view and apply for Projects from developers and architects. At the same time, contractors can publish Projects for subcontracting.

4. Subcontractor

Subcontractors are service providers in the construction industry and can apply for Projects. At the same time, subcontractors can in turn publish Projects for award to other subcontractors.

8. After registration and verification of the user account, the User needs to create a profile for the company in order to have access to all the functions of the Platform that belong to their type of user package, Upbore Basic or Upbore Pro package.

4. Projects

1. Depending on the User category, the User can share information on construction Projects ("Projects") on the Platform or apply to the Users tendering for Projects for the performance of certain activities. Contact with the Users who have posted a Project is established outside the Platform via the contact information provided by the Users.
2. The Provider only provides the Users with a Platform for establishing contact and does not become a contractual partner of the respective contractual relationships.
3. The Users themselves are responsible for the information published in Projects. In particular, the Provider does not verify or otherwise check the information.

5. Software Store

1. The Provider offers a software store on the Platform, where software vendors have the possibility to promote their products and send advertisement notices via the Platform to Users.
2. In addition, Provider issues links to the sites of affiliated companies and certain other businesses. Provider is not responsible for examining or evaluating, and do not warrant the offerings of, any of these businesses or individuals or the content of their websites. Provider does not assume any responsibility or liability for the actions, product, and content of all of these or any other third parties.
3. The Provider assumes no responsibility for the completeness, correctness and legality of the advertising and promotion material provided by the software vendors. (software companies)

6. Suppliers Market

1. The Provider offers the possibility for vendors to promote their products and send advertise notices via the Platform to Users (“Suppliers Market”).
2. The Provider assumes no responsibility for the completeness, correctness and legality of the advertising and promotion material provided by the vendors.

6. Community

1. The Provider offers a service titled “Community” on the Platform, where Users and registered sole users of the Community (companies, freelancers, students, universities, suppliers, real estate agencies and others from the construction industry) can connect and post, share, and exchange information on topics related to the construction industry.
2. Users have access to the Community with their Upbore account and they do not need special registration to the Community.
3. Users and sole users of the Community have profiles on the Community, can create posts, comment on other’s posts and have private online chats with other users.
4. Any interaction between Users or between Users and sole users of the Community on the Community happens at the Users’ own risk and responsibility. Provider is not obliged to monitor the interaction of Users and sole users of the Community. Provider shall not assume any liability for breaches of rights or duties by Users and by sole users of the Community that may be the result of an interaction between the Users. Nonetheless, all Users undertake to comply with applicable law within the platform.
5. The User and sole users of the Community may publish various information on the Community, in particular when creating the public User profile and when publishing Posts and Comments. This Content of the Community is public and visible to every visitor of the Platform, including to third parties. The social network is the core application of the Community service. The profile page created by the user within the social network (hereinafter referred to as "User Profile") represents the identity with which the user appears and is represented within the Community Service, on the Upbore Websites. In principle, a user profile visible in the social network and outside is required for the use of Community.
6. The User is aware that Content published on the Community can be viewed by every visitor, registered user or non registered visitor. The User is responsible for ensuring that no confidential information is shared by publishing Content on the Community. Provider is not obliged to prohibit third parties from saving data or content that is or was publicly available pursuant to the these Terms of Use, Privacy Policy or user settings.

6. Rights of use

1. The Provider grants the User the worldwide, non-exclusive and non-transferable right to use the current version of the Platform during the term of the contract in accordance with the terms and conditions of the contract.
2. The User is not entitled to make the Platform available to third parties, whether for payment or free of charge.
3. Otherwise the following uses are not permitted:

• Reproductions of the Platform that are not required for the intended use;
• processing or other interventions in the Platform;
• decompiling or other measures to obtain the source code of the Platform's software.

4. Notwithstanding the rights of use granted under this clause, the Provider retains all rights to the Platform. This includes in particular all versions of the Platform and other documents and electronic documents that Provider provides to User during the term of the agreement, including updates and upgrades of the Platform.

7. Availability

1. The Provider will generally monitor the functionality of the Platform on weekdays from Monday to Friday from 9:00 a.m. to 6:00 p.m. If maintenance work on the Platform becomes necessary during this time, the Provider will inform the User in good time.
2. The availability of the Platform during the monitoring periods is 98.5% on an annual average, whereby scheduled maintenance work is not considered a limitation of availability.

8. User-generated Content

1. The User may publish various information on the Platform, in particular when creating the public User profile and when publishing Projects ("Content"). These Contents can only be viewed by registered Users.
2. Insofar as Content stored by the User on the Platform is protected by copyright or in any other way by law, the User grants the Provider the right to use such Content for the provision of the Platform in accordance with the contract or the provisions of the contract, in particular to make it accessible via the Internet, to reproduce and distribute it.
3. The User is aware that Content published on the Platform can be viewed by registered Users. The User is responsible for ensuring that no confidential information is shared by publishing Content on the Platform.
4. The User has two options to grant access to project documents: (a) granting access to every registered User or (b) access only on approved request. Under option (b) the User will receive separate requests by other Users to download of project documents. The User can then decide whether to grant access to the requested documents or not.
5. The Platform offers the opportunity to view the history of downloads of project documents. Users can view which of their project documents where downloaded by which other User.
6. The Provider is not obliged to check the Contents. At the same time, the Provider reserves the right to delete or block Content if such Content violates applicable law or these terms of use or if the Provider is obliged to do so by court or official order. In such cases, the Provider will inform the User in good time.

9. Duties of the User

1. The User will only use the Platform for the intended purposes.
2. The User will not store or distribute any Content on the Platform that

• violates applicable laws, official orders or the rights of third parties (e.g. copyrights, industrial property rights, personal rights),
• has insulting, defamatory, slanderous or other illegal Content,
• is pornographic or contain depictions of violence,
• is untrue or misleading (in particular feedback contributions in the User profile),
• is spam, harassment or unfair advertising,
• contains malicious software (e.g. viruses, worms, Trojans), spyware or other harmful programs or
• contains programs that automatically collect or process information (e.g. bots, crawlers, data mining tools).

3. The User undertakes to retain the protective notices contained in the Platform, such as copyright notices and other legal reservations, unchanged.
4. The User will use project information received on the Platform only for the purposes of preparing an offer or for other purposes as defined by these Terms of Use.

10. Compensation

1. The Provider issues users with a Upbore Basic user package and Upbore Pro user package.
2. In an Upbore Basic user package, the User does not pay a monthly fee for using the Platform. The functionalities that belong to the Upbore Basic user account are visible in the list of functionalities online and in their user settings. The user has the option to pay individually for the use of certain functionalities in accordance with the List of functionalities and the offer that can be found in the user settings. As part of the Upbore Basic user package, a user can have up to 2 linked user accounts for their employees.
3. After registering on the Platform, all users have the Upbore Basic package for which no monthly fee is paid and have a range of functions on the Platform that belong to an Upbore Basic user package in accordance with the List of functionalities available online and in user settings.
4. In the Upbore Pro user package, the User has access to all functions on the Platform by paying a monthly membership fee according to the list of functionalities that can be found online on the Platform and in user settings. As part of the Upbore Pro user package, the User can have up to 10 linked user accounts for their employees.
5. The monthly fee for the Upbore Pro package depends on the size of the company and in which country the company is based. The User can see the offer for the Upbore Pro package in the user settings.
6. The remuneration is invoiced monthly by the Provider with a payment term of 14 days.

11. Warranty

1. The Provider hereby points out to the User that, according to the current state of the art, it is not possible to provide complex online services completely free of errors with a reasonable amount of effort. However, the Provider shall keep the Platform free from such defects that impair its suitability for use in accordance with the contract or the intended purpose more than just insignificantly. In such cases, the Provider shall, at his discretion, either remedy the defect or provide a workaround solution.
2. The User is obliged to inform the Provider immediately about the type and occurrence of defects. The contact form on the website shall be used to report faults.
3. The rectification of defects is excluded for such defects which are based on the use of the Platform not in accordance with the contract or the intended use.

12. Responsibility of the Provider

The Provider is especially not responsible for

• the completeness, accuracy, availability or confidentiality of User-generated Content,
• infringing or illegal User-generated Content,
• contracts concluded between the Users or
• damages that arise from use of the Platform contrary to contract or regulation.

13. Liability

1. If the Provider has to pay for damage caused by slight negligence according to the legal regulations, the Provider's liability is limited: In this case, liability shall only exist in the event of a breach of material contractual obligations (these are obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the User regularly relies and may rely). Furthermore, this liability is limited to the typical damage foreseeable at the time the contract was concluded.
2. Excluded is the personal liability of the legal representatives, vicarious agents and employees of the Provider for damages caused by them through slight negligence. With the exception of legal representatives and executive employees, the limitation of liability for the Provider defined in this clause shall apply accordingly to damages caused by gross negligence.
3. Irrespective of any fault on the part of the Provider, any liability in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk and in accordance with the Product Liability Act remains unaffected.
4. The limitations of liability in this clause do not apply in the event of injury to life, body or health.

14. Liability for links on third party website

On the Platform there might be links to third-party websites. Such third-party websites are beyond Provider’s control and Provider has no influence on content, terms and conditions of use and data protection and privacy policies of these websites. Therefore, Provider shall not assume any responsibility for the content of these websites and no liability for any damages or losses, incurred by calling up/use of these websites. If the User calls up these websites, he shall do so at his own risk.

14. Data protection

1. The Provider will only process personal data to the extent permitted by the relevant data protection regulations. The User will find more detailed information on data processing in the Privacy Policy.
2. The User shall ensure that personal data of his employees are lawfully transmitted to the Provider and published on the Platform. Insofar as the User gains access to personal data of third parties in the course of using the Platform, he will only process such data to the extent that this is necessary for using the Platform.

15. Confidentiality

The User undertakes to keep confidential the information obtained in the course of using the Platform (in particular Project information). Users can add own Non-Disclosure-Agreements to their projects and can make access to project information dependent on the conclusion of this separate NDA. The Provider is not part of these separate NDA’s and assumes no responsibility in this respect.

16. Open Source Software

1. Insofar as the Platform contains open source software and this is required according to the respective terms of use and licence conditions of the open source software, the Provider will make the source code and the respective licence conditions available to the User.
2. The rights of use granted within the scope of these Terms of Use do not apply to open source components of the Platform, insofar as this is not permitted under the respective terms of use and licence conditions of the open source software.
3. The Provider will inform the User in the license notes about the open source components used in the current version of the Platform.

17. Disclosure of the contractual relationship for marketing purposes

Provider is allowed to advertise with the customer relationship to User, i.e. in particular to name User publicly as a customer, to use User's logo on the website as well as in social media and to create a case study that shows the advantages of User's cooperation with Provider. The case study is public and accessible to third parties. Before publication, the Content is released by the User.

16. Referral

1. If a User refers the Platform to a new user and the new user registers on the Platform within 6 months and signs up for the Upbore Pro package, the Referrer shall receive 1 (one) month of free use of the Upbore Pro user package. This shall only apply if the candidate referee had not already registered to Upbore within the last 12 (twelve) months before the recommendation.
2. In order for the user who recommended the Platform to a new user to receive 1 (one) month of free use of Upbore Pro user package, it is necessary that the User notifies the Provider within 15 days of the referral by email:contact@upbore.com.

14. User feedback

Users are welcome to forward ideas, suggestions or recommendations to improve the Platform and/or the Service (collectively “Feedback”) in whatever form (e.g. e-mail, verbally) to Provider. Should Users provide Feedback, they agree that Provider will make use of this Feedback and implement it on its Website and/or in its Service at its own discretion, without compensation to User.

18. Contract period, termination

1. The agreement for an Upbore Basic package is entered into for an indefinite period of time. Provider and the User may terminate their membership for the Upbore Basic package at any time without cause. In order to protect the user from unauthorised deletion of their user profile by third parties, Provider may perform an identity check upon termination, e.g. by requesting the username and an e-mail address registered on the Platform.
2. The agreement for an Upbore Pro package shall run for the initial term selected by the user during the upgrade process. After this term, the Upbore Pro membership will be renewed by a term of the same length as the initial term, unless terminated in due time by the User or Provider. The User and Provider may each terminate the agreement for an Upbore Pro package without cause to the end of the initial term selected by the user during registration process, or to the end of any renewal period after said minimum term expires, by serving notice of two (2) months via email.
3. If the Agreement for the Upbore Pro package has been terminated, the User is entitled to retain Upbore Basic package until this membership is terminated, meaning that the additional and advanced the Upbore Pro package functions will no longer be available.
4. Extraordinary termination for good cause remains unaffected.
5. The termination can be declared in text form (e-mail is sufficient).

19. Final provisions

1. The Terms of Use are available in English and German. The German language version takes precedence in the event of contradictions or deviations.
2. Should individual provisions of the contract be invalid, the validity of the remaining provisions of the contract shall not be affected. The parties undertake to replace the ineffective provisions by provisions which come as close as possible to the purpose of the ineffective provision in economic terms, taking into account the interests of both parties.
3. German law applies. Place of jurisdiction for all legal disputes arising from this contract is Berlin.

Status: January 2021