General Terms and Conditions
- These General Terms and Conditions (hereinafter referred to as the “GTC“) contain the terms and conditions for the use and leasing (hereinafter referred to as the “Service“) of the cloud-based myPlan.cloud software service (hereinafter referred to as the “Software“) provided by Bit Different Limited Liability Company as Service Provider (hereinafter referred to as the ” Service Provider“). Detailed information about the Service is available on the Service Provider’s website (https://myplan.cloud/, hereinafter referred to as the “Website”). The use of the Service can be initiated through the electronic interface of the Website.
- The scope of the GTC covers the process of concluding the contract, the conclusion and performance of the contract, and any breach of contract. A User is any enterprise (hereinafter referred to as “User”) within the scope of Act V of 2013 on the Civil Code (hereinafter referred to as “CC”), who uses the Service offered by the Service Provider. The Service Provider and the User are hereinafter collectively referred to as the “Parties”. The Contract is a contract entered into between the Parties for the leasing and use of the Software (hereinafter referred to as the “Contract”). On the Website, the Service is available to the User after registration/ordering and finalising the registration. The Contract is concluded between the Parties upon finalisation of registration. These GTC are not subject to the provisions of Government Decree 45/2014 (II. 26.) on the detailed rules of contracts between consumers and businesses, or other legislation applicable to consumers.
- The Contract is concluded between absent persons in Hungarian or English language, but not recorded in writing. Its contents can be retrieved and accessed subsequently, but it is not filed by the Service Provider, and does not refer to a code of conduct. The Contract constitutes a contract for the use of an information society service within the scope of Act CVIII of 2001 on certain aspects of electronic commerce services and information society services (hereinafter referred to as the “Electronic Services Act”) and a contract concluded in accordance with Chapter XVI, Part Two (Special rules for the conclusion of contracts by electronic means) of the Civil Code. The language of the Contract is Hungarian or English.
- By registering/ordering on the Website, the User accepts the terms and conditions set out in these GTC. The Service Provider expressly draws the User’s attention to the fact that the registration/order is only successful if the User accepts and acknowledges the provisions of these GTC by ticking the checkbox on the Website.
II. Details of the Service Provider
Name: Bit Different Limited Liability Company
Registered office: H-8085 Vértesboglár, Pince köz 3.
Registration authority: Company Court of Székesfehérvár General Court
Company registry number: 07-09-015741
Tax number: 14601659-2-07
Represented by: Zoltán Hamar, general manager
Electronic contact details: firstname.lastname@example.org
III. The scope of the GTC
- Personal scope: These GTC apply to the Parties to the Contract.
- Material scope: These GTC fully and automatically govern the contractual terms and conditions applicable to the use of the Service.
- Temporal scope: These GTC shall enter into force upon its publication and shall remain in force until revoked or amended by the Service Provider. Any disputes between the Parties arising in connection with a Contract concluded under these GTC shall always be governed by the provisions of the GTC in force, subject to the provisions of Clause IV.3.
IV. Availability and amendment of the GTC
- The Service Provider shall ensure that the User can familiarize themselves with and interpret the contents of the GTC before accepting them.
- The Service Provider publishes the currently valid text of the GTC on its Website, which is thus publicly available and accessible to everyone.
- The Service Provider reserves the right to unilaterally modify the provisions of these GTC at any time. The Service Provider shall notify the User in writing of the amendment to the GTC at least 30 (thirty) days before the amendment comes into force. The information may be included in the electronic interface of the Software or in a notification sent to all Users at the e-mail address provided during registration. If the User does not duly terminate the Contract by the date of entry into force of the amendment at the latest, the provisions of the amended GTC shall continue to apply. If the User does not accept the amendment, the User shall have the right to terminate the Contract by giving 30 (thirty) days’ notice prior to the entry into force of the amendment.
V. Description of the Service
- myPlan.cloud is a professional construction management software that helps in the efficient management of projects, including document management, error management and approval interface.
- myPlan.cloud is a plug-n-play SaaS (Software as a Service) application that can be used through a web browser, without the need to install any software. The Software can be used from any web browser.
- A detailed description of the functions of the Software can be found on the Website: https://myplan.cloud/features/
VI. Registration, creation of the Contract, trial period, process of using the Service
- The first step is for the User to register by filling in the form on the Website and order the service at the same time. During registration, the User is required to provide accurate information.
- Following the registration/order, the Service Provider shall send a confirmation email to finalise the User’s registration and send the data required to use the Service. Upon finalisation of the registration/order, the Contract is concluded between the Parties. The date of finalisation of the registration and the date of conclusion of the Contract is the date on which the User is granted access to the Software.
- By registering, the User acknowledges that he/she is over the age of 18 (eighteen) and is a person of legal capacity, who uses the Service in the course of his/her business activities or is a representative of a business entity, and registers on behalf of himself/herself or the business entity he/she represents, providing accurate information and contact details.
- If the Service Provider becomes aware that the range of information provided by the User contains false data, it is entitled to refuse registration or restrict access to the Service Provider’s online services in whole or in part, or exclude the User from using the Service Provider’s online services.
- The Service Provider provides the opportunity for all first-time Users to try the Software free of charge and without obligation for 30 (thirty) days after registration. Access will be terminated at the end of the 30th (thirtieth) day, and the User shall not automatically enter a period of chargeable fees. The obligation to pay fees shall only arise if the User activates the Service.
- The User acknowledges that during the 30 (thirty) day trial period the maximum storage capacity per project is 10 (ten) GB. The documents uploaded during the trial period and other data contained in the database shall be stored by the Service Provider for a further 30 (thirty) days after the expiry of the trial period. In the case of orders placed during this period, the Service Provider shall not delete them and shall continue to provide access.
- Other services, for example advice on the selection of the Software, the installation and implementation of the Software or the full education and training associated with the Software are not covered by this Contract. The Service Provider provides free of charge instructional videos in electronic format.
VII. Software usage fee, payment terms
- The monthly fee for the use of the Software (hereinafter referred to as the “Fee”) is determined on the basis of the maximum amount of storage space used and the maximum number of users in a given month, according to the pricing published on the Service Provider’s website (https://myplan.cloud/pricing/). The Fee is payable per project, i.e. the Fee is payable per User for the number of projects to which the User is assigned.
- If the User wishes to manage more than one construction investment in the Software, the User must create a separate project for each investment. This means that work on different sites cannot be managed collectively under one project. Any breach of this clause shall be considered a serious breach of contract.
- The Service Provider draws attention to the fact that the Fee is value-secured. Indexation is based on 100% of the monthly Harmonised Index of Consumer Prices (MUICP) for the euro area, published by the Statistical Office of the European Union (EUROSTAT). The Fee is adjusted once a year in proportion to the percentage change in the consumer price index compared to the same month of the previous year, if the index is positive. Since the consumer price index will be published after the start of the adjustment, the Service Provider may retroactively apply and invoice the difference as of 1 January of the year in question. If the value of the consumer price index specified herein is not published, the Parties shall use the index applicable as a substitute for it or, if no substitute is provided, the index which comes closest to it.
- In addition to the above, the Service Provider reserves the right to change the price and may unilaterally increase the Service fee, provided that it sends a written notice to the User at least 30 (thirty) days prior to the increase. If the User does not duly terminate the Contract no later than the date on which the increase becomes due, the increased service fees will continue to apply. If the User does not accept the change, they shall be entitled to terminate the Contract by giving 30 (thirty) days’ notice before the entry into force of the fee increase. Detailed information about the fees for the Service is available on the Website.
- Invoicing takes place in the month following the relevant month. The User shall receive the invoice by e-mail. The User accepts the electronic billing system. The User shall pay the monthly Fee for the month in question in arrears, against the invoice sent, with a 15 (fifteen) day payment deadline. The Fee shall be deemed to have been paid on the date on which the amount has been credited in full to the Service Provider’s account.
- In the event of late payment, the Service Provider may charge interest on late payment at a rate of twice the prevailing base rate of the Hungarian Central Bank.
- The Service Provider shall fix the Fee of the Service in euros (EUR). If nevertheless the User decides to pay the Fee in Hungarian forints (HUF), the User/Customer may do so, but acknowledges that in this case they shall bear the exchange rate risk, which cannot be transferred to the Service Provider. The amount in HUF corresponding to the amount in EUR (converted at the current intermediate exchange rate of the Hungarian National Bank) is automatically indicated on each invoice and any User intending wishing to pay in HUF, shall pay the HUF amount indicated.
- If the User is in arrears with the payment of the invoice, the Service Provider will request the User/Customer to pay the invoice via the contact email address specified during registration or via the warning messages displayed in the software. In the event of a delay exceeding 15 (fifteen) days, the Service Provider may suspend access to the Service until the User has fulfilled its payment obligations. If the User fails to comply with the payment obligation after a second notice and the late payment exceeds 30 (thirty) days, the Service Provider may terminate this Contract with immediate effect. From the 31st (thirty-first) day of the late payment, the User is not entitled to use the Software. The Service Provider may delete the data after 45 (forty-five) days of being late.
- During the period of suspension or limitation for reasons beyond the User’s control, the User shall be liable to pay the fees for the Service, and the Service Provider may charge a fee for removing the suspension or limitation.
VIII. Rights and obligations of the Service Provider
- The Service Provider shall provide continuous Service during the term of this Contract with respect to the Software delivered by it for live operation.
- In no event shall the Service Provider be liable for any damages (including loss of business profits, business interruption, loss of business information and data, and other non-contractual damages) arising out of or in connection with the use of the Software provided by the Service Provider. The maximum liability of the Service Provider for any damage, whether covered by the Contract or not, shall not exceed the annual net amount of the Fee paid by the User. The Fees applied by the Service Provider reflect the limitation of liability set out in this clause. The liability of the Service Provider for breach of contract shall be aligned with the limitation of liability provision set out in this clause, unless otherwise provided by a mandatory rule. The Parties shall apply the limitation of liability clause under this clause in accordance with the relevant provisions of the Civil Code. The provisions on exclusion and limitation of liability contained in this clause shall not apply to cases of causing damage where, at the time of damage in which, at the time it was caused, liability for this damage could not be validly limited or excluded under Hungarian law.
- Furthermore, the Service Provider shall not be liable for any malfunctions or damage to data due to any defect of the computers and other devices operated by the User. The Service Provider also excludes its liability: i) if the uploaded material is lost; ii) if the User’s device, software or telecommunication connection is not compatible with the leased Software; iii) if technical problems occur, including defects on the website/web browser or interruption of Service; iv) if the User’s data is damaged or lost, including but not limited to cases when it is not accessible after the User’s access has been terminated or suspended.
- The Service Provider excludes all liability for damages due to the destruction, delayed arrival or any other error of messages transmitted electronically.
- The Service Provider shall not be liable for any conduct (in particular for damage) resulting from the unprofessional, improper or unlawful use of the Software, or for the reduction or loss of the financial benefit, which the User had hoped to obtain by using the Service.
- In the course of providing the Service, the Service Provider shall have no obligation (liability) to detect and correct the User’s incorrect data recording, or to search for and troubleshoot any resulting errors.
- The Website may contain links to other companies’ websites. The Service Provider is not responsible for the privacy practices or other activities of these companies.
- The User shall use the Website exclusively at his/her own risk and accepts that the Service Provider shall not be liable for any material or non-material damage arising from the use of the Website, and shall not assume liability for breach of contract caused intentionally, by gross negligence or by criminal offence, or for damage to life, limb or health.
- The Service Provider provides the Software for use, and the User is responsible for the data stored therein and their legality (e.g., if the User records personal information, he/she must have the consent to do so).
- Service Provider may modify and extend the Software while retaining its functionality.
- The Service Provider may suspend access to the Service if the User breaches the terms of the Contract or the GTC until the User remedies the breach. Nothing in this clause shall be construed as limiting the Service Provider’s rights to terminate the contract. Before taking such action, the Service Provider shall, whenever possible, request the User to remedy the breach of contract within a reasonable period of time.
IX. Rights and obligations of the User
- The User is entitled to use the Services ordered, i.e. use the myPlan.cloud Software. The User is obliged to pay the Service Provider the Fee due for the performance of the Service by the due date. In addition, the User shall cooperate with the Service Provider as necessary for the performance of the Service.
- The User must switch to a contractor’s subscription in the case of a construction project or when shifting from the design phase to the construction phase. The User acknowledges that the rate of the fee also depends on the function used, therefore the Service Provider may check whether the User has completed the switch. In the event that the User fails to switch the Software, the Service Provider may suspend the Service in accordance with clause VIII.11. and may claim the difference in fees retroactively, plus statutory default interest. The User acknowledges that the Service Provider will terminate the suspension after the payment of the claim and the verified switch of the service package.
- The Service Provider is not liable for any damage resulting from incorrect or improper use.
- The User shall continuously inform the Service Provider of any defects occurring during the operation of the Software and of its experience gained during operation.
- The primary right of the User shall be the right to have the Service Provider repair the defect. In the event of a failure to repair the same or a substantial, directly related defect, the User may, at their option, terminate the Contract with immediate effect or request a price reduction. In the event of defects that do not prevent the use of the Software, the User shall not have the right to terminate the contract with immediate effect.
- The User shall cooperate in locating the defects.
- The User shall keep in confidence the identifiers and passwords necessary to use the Service. The User shall be liable for any damage resulting from unauthorised use. Therefore, the Service Provider shall not be liable for any damage resulting from the User’s passwords that are forgotten or accessed by unauthorized persons. The Service Provider may suspend the Service if it detects that the User’s password or other identifier is being used by an unauthorized third party.
- It is the responsibility of the User to provide accurate and truthful information when registering/placing an order. The Service Provider shall not be liable in any way for any incorrect or inaccurate data provided by the User, for any delay in performance attributable thereto, for service not provided in accordance with the User’s original intention, or for any other problem.
- It is the User’s sole responsibility to ensure the suitability of its IT background for the use of the Service before signing the Contract.
- The User shall not disclose to any third party the Contract or any other documentation, specifications, information, solutions, facts, IT and business data, IT and business solutions and any other draft or other documents relating thereto without the written consent of the Service Provider. The termination of the Contract and the legal relationship between the Parties shall not affect the scope of the confidentiality obligation.
- The User is not entitled to resell the Service to third parties without the written consent of the Service Provider.
- The Software and the Website are protected by copyright. The contents of the Software and the Website (e.g. text, data, video, audio, images, etc. – hereinafter referred to as “Materials”), excluding the Materials uploaded by the User to the Software, are the exclusive intellectual property of the Service Provider and may be used, whether online, in print or by any other means, only with the prior consent (permission) of the Service Provider. Parts of the Software and the Website may be saved or printed for individual (personal) use only. This right does not, however, constitute consent (permission) to reproduce, distribute, make available (downloadable), store in a database or in any way adapt the downloaded material for commercial purposes. Images in the Software and on the Website may be used by third parties only with express permission.
- The Service Provider reserves all rights to all elements of its Service, its domain names, any secondary domain names created from them, and its Internet advertising spaces.
- You may not adapt or reverse engineer the content of the Software and the Website or any part thereof.
- In a functional sense, the right of use entitles the User to the full use of the Software. The Fee is based on the maximum number of users and the maximum usage of storage capacity per project for a given billing month.
- The User’s right of use includes the right to install, use, access, display, run and/or otherwise interact with the Service. The right of use is not ownership. The right of use is non-exclusive, is granted to the User for the term of the Contract and is non-transferable. The right of use may be affected or limited by system requirements or other factors. Only the entitlements set out in this clause shall be granted to the User, no other implied or customary entitlements shall be granted. The right of use is available to the User against payment of the fees, as set out in the Contract.
- The User
- may not transfer or provide access to, license or lend the Software to any third party;
- may not modify, adapt or fix the Software or develop derivative works based on the Software;
- may not make a copy of the Software, reverse engineer or decompile the Software or any part thereof, or convert it into a form other than that in which it was provided to him or her;
- may not use the Software for any purpose other than the provision of Services under the Contract;
- declares that he or she holds the necessary rights to all data, programs or services used in connection with the Software and that they do not infringe the intellectual property rights or other rights of third parties;
- is not entitled to implement service patents or other intellectual property with equipment or Software;
- The ownership of the Software is not transferred to the User under any circumstances, however, this restriction does not apply to the User’s ownership of data media, data storage and data processing devices.
- Except for the rights expressly granted in these GTC, the use of the Software and the Website and the provisions of these GTC shall not grant the User any right to use or exploit any trade name or trademark displayed on the Software and the Website.
- The copyright in the Software related to the Service belongs to the Service Provider.
XI. Data processing
- The Service Provider warrants that all data processing activities carried out in the performance of the Contract under these GTC shall comply with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 APRIL 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC (hereinafter referred to as “GDPR”).
- The Service Provider shall protect the data uploaded by the User and shall ensure the backup of the data on a daily basis, with availability for 30 (thirty) days. After the expiry of the 30 (thirty) day period, the data cannot be recovered and will be deleted by the Service Provider. The User is responsible for backing up the data to its own hardware device.
- The Service Provider may not transfer the data to third parties or use them in any way without the written consent of the User. An exception to this is the provision of data required by law.
- The Parties undertake to protect, safeguard and keep confidential as trade secrets all data, confidential data, information, confidential information and documents which come to their knowledge in the course of the performance of the Service and to make all efforts necessary to ensure their proper protection.
- The Parties may use confidential data and information only for the purpose of performing the Service, and may disclose such data and information only with the prior written consent of the other Party, unless such disclosure is required by law.
- The Parties agree that all data and information provided to the other Party under these GTC shall be considered trade secrets and as such shall be treated as confidential and shall not be disclosed to third parties or used for any purpose other than those specified in the GTC.
- The above confidentiality obligation shall remain in force for the duration of the Service and indefinitely after its termination for any reason.
XIII. Termination of the Contract
- All obligations undertaken in these GTC and Contract shall be applicable until the termination of the Contract, with the exception of those specified in Section XII.4.
- The Contract may be terminated by either Party by giving notice of ordinary termination. The notice of termination shall be given in writing with 30 (thirty) days’ notice. During the termination period, regardless of which Party is giving notice, the User shall have an obligation to pay fees and the Service Provider shall have an obligation to provide services.
- The Parties may terminate this Contract in writing with immediate effect in the event of a serious breach of contract by the other Party, if the grace period of at least 15 (fifteen) days specified in the notice communicated by them has expired without result. The Parties agree that a serious and/or repeated failure by either Party to comply with their material obligations assumed under the Contract, repeated defaults in the performance of their obligations or their other commitments, or any conduct that precludes further cooperation shall be considered a serious breach of contract.
- The Service Provider reserves the right to terminate the Contract with immediate effect and without notice, inter alia, if
- the User resells, transfers or otherwise makes available the Software to a third party;
- if the User is subject to bankruptcy or liquidation proceedings, or if the court has issued a final decision ordering the liquidation of the User;
- if the User behaves in a manner that harms the legitimate interests of the Service Provider or individual Users, in particular the reputation of the Service Provider, or if the Service Provider cannot be expected to continue to maintain the Contract as a result of the User’s behaviour;
- it is subsequently found that the data provided by the User during registration do not correspond to the truth or the provisions of the GTC;
- the User otherwise misleads the Service Provider.
- In the event of termination of the Contract for any reason, i) the license granted by the Service Provider to the User shall be immediately revoked; ii) the User shall pay to the Service Provider all fees payable under the Contract without delay, but not later than in 15 (fifteen) days. Upon termination of the Contract, the Service Provider shall terminate the provision of the Device without prior notice and permanently delete the User’s data, by which time the User has the responsibility and liability to back up their data on their own hardware devices.
- The Parties shall fully settle with each other upon termination of the Contract.
XIV. Settling disputes, making complaints
- The User may contact the Service Provider with any complaints at the following e-mail address: email@example.com.
- The Parties shall do their best to settle by direct negotiation any disagreement or dispute between them arising under or in connection with this Contract. After the conclusion of the Contract, the Parties shall inform each other immediately upon becoming aware of any circumstance which prevents the performance of the Contract.
- If the Parties are unable to resolve their dispute arising under or in connection with the Contract within 30 (thirty) days of the commencement of direct negotiations, the Parties shall submit to the exclusive jurisdiction of the Budapest II. and III. District Court and the Székesfehérvár Court of Justice, respectively. The provisions of the Contract shall be governed by the provisions of Hungarian law, and by the provisions of the Civil Code in matters not covered by the Contract.
- The Parties shall communicate with each other generally by electronic mail or through the interface of the Software (hereinafter referred to as “Primary Communication”).
- Communication by electronic means shall be mutually accepted by the Parties as being in writing. The Parties shall ensure that the mailboxes designated for communication are checked. Notices so sent shall be deemed to have been mutually served.
- Contact e-mail addresses: the e-mail addresses provided for contact purposes during registration.
- The Service Provider shall apply a presumption of delivery as to the fact and time of delivery of the items sent by registered mail in respect of the Primary Communication. Items sent by return receipt addressed to the User’s address or registered office shall be deemed to have been delivered on the date recorded as the date of receipt on the return receipt. If the User fails to receive the parcel by return receipt despite one attempt to deliver it by post, the parcel shall be deemed to have been delivered on the date of the postal notification of non-delivery, after the expiry of the 10 (ten) day retention period at the post office.
- Damages and additional costs resulting from incorrect postage due to an incorrect address provided by the User shall be borne by the User. The User is obliged to notify any changes to his/her information. Any damage resulting from failure to do so shall be borne by the Buyer.
XVI. Integrity clause
- These GTC, together with the Contract, contain all the terms and conditions of the contractual agreement between the Parties, and any prior agreements not contained in writing shall be null and void.
- If any provision or part of any provision of these GTC is or becomes invalid or unenforceable, the other parts of these GTC shall remain in full force and effect. In such a case, by way of (supplementary) interpretation, the relevant regulations that best meet the economic purpose of the invalid or unenforceable regulation shall apply.
- If the User applies general terms and conditions, its provisions shall not become part of the Contract. The incorporation of the User’s general terms and conditions as contractual content is expressly excluded by the Parties.
XVII. Other provisions
- The Service Provider may include the name and publicly available logo of the User as a reference in tenders called for by other companies, budgetary bodies or other persons, in its company brochures, Website and other types of advertising materials.
- Except where expressly provided otherwise, neither Contracting Party shall be liable for late performance or non-performance, in whole or in part, of any of its obligations under this Contract if the delay or non-performance is due to force majeure as defined by law.
- Notwithstanding section 6:142 of the Civil Code, force majeure is in particular an event or circumstance which is not foreseeable at the time of the conclusion of the contract and which is beyond the control of the Party concerned. Such force majeure events include, but are not limited to, war, revolution, earthquake, flood, embargo, expropriation, devastating fire. Labour conflicts do not constitute a force majeure event.
- A Party claiming force majeure shall take reasonable steps to mitigate the consequences of such an event immediately, but not later than five (5) days after the event occurs. If the force majeure event still exists after 30 (thirty) days, either Party shall be entitled to notify the other Party of the termination of the Contract without any claim for compensation by the Parties.
VXIII. Final provisions
- The Parties undertake to act in good faith and in accordance with the requirements of good faith and fairness in the performance of their obligations under the Contract arising from the present GTC and to cooperate with each other, informing each other of all relevant circumstances affecting the other Party without undue delay.
- If the Service Provider does not exercise any of the rights set out in these GTC, the non-exercise of such rights shall not constitute a waiver of such rights by the Service Provider.
- This GTC shall enter into force on August 23, 2022.