FoxBuildTerms and Conditions
SaaS Agreement
General
SaaS Agreement. This Agreement is concluded with Cypher Technology Analytics GmbH, Neubaugasse 25/1/6, 1070 Vienna, Austria, hereinafter referred to as "FoxBuild" and governs the provision of an AI-assisted software solution for automated construction site documentation (Service) in SaaS form as well as the provision of services by FoxBuild.
FoxBuild. FoxBuild makes the FoxBuild Service available to the Customer. FoxBuild is an AI-assisted software solution for automated construction site documentation. The application enables voice notes — in particular those recorded directly on the construction site — to be easily captured and processed digitally. The recorded audio data is automatically transcribed and analysed using artificial intelligence. The system identifies relevant content, structures information, and generates building blocks for construction site reports or complete documentation. The resulting content can then be automatically prepared and sent to defined e-mail addresses. This substantially accelerates and simplifies the documentation process.
SaaS – Software-as-a-Service. The FoxBuild Service is operated as a Software-as-a-Service model. FoxBuild provides the Customer with the server-side infrastructure. The Customer is responsible for the client-side infrastructure.
Applicability
Contractual basis. FoxBuild concludes contracts and provides services exclusively on the basis of written offers prepared by FoxBuild and the then-current version of any service descriptions incorporated into the offer (e.g. individual documents or general brochures), price lists, and this SaaS Agreement.
The service descriptions, price lists, and the SaaS Agreement apply, to the extent they are not merely project-specific (e.g. individual documents), to all legal relationships between FoxBuild and the Customer and therefore automatically form the basis of all further contracts concluded between FoxBuild and the respective Customer in the most current version, even where these price lists, service descriptions, and the SaaS Agreement are no longer expressly referenced.
Future amendments. Amendments to FoxBuild's service descriptions, price lists, and SaaS Agreement will be communicated to the Customer in writing and shall be deemed agreed unless the Customer objects within two weeks. As of the effective date of the new agreement, the amendments to the SaaS Agreement shall also apply to all other contracts still in force.
Supplementary agreements. Any supplementary agreement, whether concluded before or during the term of the contract, requires written form to be valid. This applies equally to derogating from the written-form requirement itself.
Customer-side contract content. Specifications regarding the scope of services provided by the Customer shall become part of the contract only where FoxBuild has incorporated them into the offer or has otherwise expressly accepted them, for example by reference to such specifications, even if FoxBuild is aware of them.
Legal instruments originating from the Customer, such as general terms and conditions or contractual clauses, shall only become effective if accepted by FoxBuild with an express endorsement explicitly covering those legal texts (such as "GTC accepted"). Otherwise, FoxBuild expressly objects to the incorporation of legal instruments from the Customer, such as general terms and conditions or contractual clauses, even if FoxBuild is aware of them.
The mere acceptance by FoxBuild of specifications regarding the Customer's scope of services shall therefore not constitute acceptance of the Customer's legal texts, even where those specifications contain legal instruments (such as "Our GTC apply").
Conflict of terms. In the event of conflicts between the offer, any service descriptions (project-specific documents, general documents), any price lists, and the SaaS Agreement of FoxBuild, these shall apply in the order listed. The more specific elements of the contract therefore automatically prevail over the more general elements.
In the event of conflicts between contract elements of FoxBuild and contract elements of the Customer, all contract elements of FoxBuild shall prevail.
Severability. Should individual provisions of the contract be invalid or unenforceable, the invalid provision shall be replaced by a valid provision that most closely reflects the economic intent and purpose of the invalid provision.
Conclusion of Contract
Offer by FoxBuild. Offers made by FoxBuild to the Customer, for example in the form of an individual offer or a non-individualised offer such as an order form, catalogue, app store, or web shop, are in all cases non-binding and subject to change.
Offer by the Customer. Where the Customer places an order on the basis of an offer or unsolicited, i.e. without a prior offer from FoxBuild — for example in the case of additional orders within an ongoing business relationship — the Customer shall be bound by that order for two weeks from the date it is received by FoxBuild.
Acceptance by FoxBuild. The contract is therefore always concluded only upon acceptance of the order by FoxBuild.
Acceptance shall in principle be made in writing, for example by order confirmation, unless FoxBuild indicates acceptance of the order by commencing performance that is recognisable to the Customer.
Mere acknowledgement of receipt of the order does not constitute acceptance.
Receipt. Where electronic means of communication or an electronic order management system accessible to both parties are used for placing and accepting offers, declarations made on business days — i.e. Monday to Friday, excluding Austrian public holidays — between 08:00 and 16:00 (CET) shall be deemed received on the same day; declarations made outside these hours shall be deemed received at 08:00 (CET) on the next business day.
Information for contract conclusions. The information obligations of FoxBuild as set out in § 9 Abs 1 Z 1–4 ECG are hereby excluded by agreement.
Scope of Services, Order Processing, and the Customer's Cooperation Obligations
Place of performance. The place of performance is FoxBuild's registered office.
Scope of services. The scope of services to be provided is determined by the written service description resulting from all contractual elements.
Information from other sources not incorporated into the offer (e.g. presentation materials, websites, or catalogues) does not form part of the service description.
The Customer is obligated to review the service description for conformity with its requirements and for completeness.
Following placement of the order, amendments to the service description are only possible by mutual agreement and may in particular result in changes to prices, deadlines, and timelines.
Professional performance. Unless the written service description provides otherwise, FoxBuild owes professional performance in accordance with the standards applicable at the time the offer is made.
Within the framework of the written service description, FoxBuild has discretion in performing the services where multiple professionally appropriate methods of performance exist.
Substitutable services. To the extent consistent with the objectives of the order, FoxBuild is entitled to deviate from the service description and replace services with other equivalent services.
Third-party services / Third Party Products. FoxBuild is entitled to perform the services itself or, in the course of providing its services, to use components, interfaces, data, rights, and other services or products of third parties (third-party services / Third Party Products).
Agreed third-party services / Third Party Products. Where FoxBuild's services contractually include specifically defined components, interfaces, data, rights, or other services or products of third parties, these components, interfaces, data, rights, and other services or products of third parties shall constitute agreed third-party services / Third Party Products.
In this case, FoxBuild's contractual obligation consists exclusively in the professional commissioning, coordination, and processing of the agreed third-party services / Third Party Products, but not in their professional performance.
Integration of services, products, data, and rights by the Customer. Where the Customer, within the scope of FoxBuild's hosting services, processes or integrates components, interfaces, data, rights, or other services or products of the Customer or third parties, FoxBuild acts solely as a hosting provider with respect to such services, products, data, and rights.
Divisible services. In the case of divisible services, FoxBuild is entitled to make partial deliveries.
Dates and deadlines. Dates or deadlines indicated by FoxBuild are non-binding unless expressly designated as binding.
Contract term. Contracts for an indefinite period may be terminated at any time, subject to any minimum term.
Termination of the contractual relationship. Upon termination or expiry of the contractual relationship, FoxBuild will immediately terminate the Customer's access to the FoxBuild Service and the associated services.
Termination of the contractual relationship for cause. FoxBuild is entitled to terminate the contractual relationship with the Customer and the Customer's access to the FoxBuild Service and associated services at any time for cause. Cause includes in particular the following breaches of contract and obligations:
- Breach of contracts, policies, and instructions of FoxBuild
- Providing the FoxBuild Service or access to it to unauthorised third parties
- Using the FoxBuild Service or the underlying infrastructure for unlawful, illegal, or unauthorised purposes or in a manner inconsistent with its intended use
- Causing disruptions to the FoxBuild Service or the underlying infrastructure
- Misconduct towards FoxBuild employees
Unforeseeable or unavoidable events. Unforeseeable or unavoidable events — in particular delays on the part of the Customer in fulfilling its obligations, as well as delays that are unforeseeable and unavoidable for FoxBuild or FoxBuild's contractors — shall extend deadlines or postpone dates by the duration of the unforeseeable or unavoidable event plus the time required for any necessary organisational measures. FoxBuild shall notify the Customer of this in writing.
Customer's cooperation obligations. The Customer shall promptly, without being requested, and in a form suitable for further processing, provide FoxBuild in writing with all information and all services necessary for the provision of the services by FoxBuild.
These include in particular the provision of a contact person for contract management, the supply of design documents, bills of quantities, technical specifications, materials and equipment, coordination on order details, and the acceptance (approval) of partial services and services.
If the need for information or services to be provided by the Customer only becomes apparent during the course of FoxBuild's performance, the Customer shall provide these without delay.
The Customer shall itself verify the suitability, accuracy, and lawfulness of the information and services it provides.
Furthermore, the Customer shall meet the system requirements for the use of the FoxBuild Service made available by FoxBuild.
The Customer is liable for all damages arising from inadequate, delayed, or omitted cooperation by the Customer, and in particular also for any additional costs thereby incurred by FoxBuild. Where FoxBuild is unable to perform the services as agreed due to inadequate, delayed, or omitted cooperation by the Customer, FoxBuild is entitled, without prejudice to its other rights, to suspend performance, to insert other work for other customers, and to resume performance for the Customer only after completion of such work, provided the Customer has fulfilled its cooperation obligations in the meantime, with the result that all dates and deadlines are postponed accordingly.
Where FoxBuild is held liable by third parties for a legal infringement in connection with information or services provided by the Customer, the Customer shall indemnify and hold FoxBuild harmless and shall assist in defending against any third-party claims.
Should FoxBuild receive notification that data provided by the Customer infringes intellectual property rights of third parties, FoxBuild reserves the right to immediately suspend the FoxBuild Service made available to the Customer and to take appropriate measures.
Scope of FoxBuild's review obligations. FoxBuild shall perform the services in such a way that the services provided by FoxBuild are not intrinsically unlawful (e.g. use of a copyright-protected work without the author's consent).
FoxBuild is not, however, obligated to review the services it creates for possible infringement of third-party rights or for legal violations that may result from the Customer's intended use.
FoxBuild is furthermore not obligated to conduct any specialist, technical, economic, or normative review of the results generated by the Service — in particular with regard to their suitability for construction site reports, documentation, tender procedures, offers, contract awards, cost calculations, construction execution, billing, project management, or other binding commercial or technical decisions of the Customer.
Scope of the Customer's review obligations. The Customer shall itself carry out, or have carried out by a suitably qualified legal expert, the legal reviews necessary to ensure that FoxBuild's services meet all of the Customer's legal requirements, in particular with regard to administrative, criminal, competition, trademark, trade sign, design protection, copyright, privacy, and data protection law.
The Customer shall furthermore itself carry out, or have carried out by suitably qualified specialists, all specialist, technical, quantitative, project-related, and costing reviews to ensure that FoxBuild's services meet all of the Customer's technical requirements, in particular with regard to completeness, accuracy, plausibility, compliance with standards, design status, compatibility with bills of quantities, and suitability for tender procedures, offers, contract awards, construction execution, and billing.
Rights in the services. In principle, all rights in the agreed services are vested in FoxBuild or FoxBuild's licensors. Upon full payment of the agreed fee, the Customer receives the right to use the services to the extent agreed with FoxBuild or pre-defined by the licensors.
Where the scope of the licence has not been agreed, it comprises non-exclusive use — without any right to sub-licence or transfer to third parties (or affiliated companies) — for the Customer's own internal use, with the right to modify limited to the statutory minimum.
In the case of additional functions and modules created individually for the Customer that are connected to the FoxBuild Service made available by FoxBuild, the Customer receives a non-exclusive right to use the service for its own internal use during the term of the contract.
Third-party rights. The Customer acknowledges that FoxBuild's services are frequently built upon works or services of third parties with a wide variety of licensing terms. The Customer shall comply with the licensing terms applicable to third-party services or works that form part of FoxBuild's services or works.
Open source. To the extent that FoxBuild's services are built upon open-source licences that mandatorily require works based on them to also be open source, FoxBuild is entitled to publish the works created for the Customer as open source without prior consultation.
Right to the end product. The Customer has a right only to use the service in the agreed form as the end product, and not to receive the underlying materials, working aids, interim results, etc. necessary for the creation of the services.
Unless otherwise agreed, FoxBuild is also under no obligation to retain such underlying materials, working aids, interim results, etc. following completion of the work.
Right of audit. FoxBuild is entitled to monitor compliance with the terms of use by technical means.
Ongoing monitoring by technical means is permitted. FoxBuild is entitled to transmit data necessary to monitor licence compliance — such as device data, usernames, or login data — to a FoxBuild monitoring system.
FoxBuild is in all cases bound by the strictest obligation of confidentiality. FoxBuild is not entitled to use the data for other purposes and is obligated to delete the data immediately after the licence check, but no later than one week thereafter.
Reference. FoxBuild is entitled to identify FoxBuild and, where applicable, any other author on all services created for the Customer, and — subject to written revocation at any time — to use data such as the Customer's name and logo, project description, project images, and the like as a reference or as an indication of the business relationship with the Customer in FoxBuild's own promotional materials, without any entitlement to remuneration on the part of the Customer.
Service Level
Standard Service Level. This Service Level Agreement defines FoxBuild's standard service level. Insofar as no additional service and maintenance services or similar have been agreed, such are not owed.
Training / Consultancy. Not covered by this Service Level Agreement is the provision of training — i.e. more extensive or recurrently required explanations due to knowledge deficits on the part of the Customer — or individual consultancy. These may, however, be commissioned separately from FoxBuild at additional cost.
Third-party applications / Third Party Products. FoxBuild does not offer support and/or consultancy services for third-party applications, e.g. integrated Third Party Products.
Communication and Support
Help pages / Documentation. Solutions to frequently asked questions relating to the FoxBuild Service made available by FoxBuild. The Customer is obligated, in particular when it has questions about functions, uploading of design documents, document formats, project setup, structuring of reports, operation of the user interface, or other support matters, to use this form of support.
Service hours. FoxBuild's service hours are Monday to Thursday from 08:00 to 17:00 (CET) and on Fridays from 08:00 to 12:00 (CET) (excluding statutory public holidays in Austria).
Languages. Communications with FoxBuild may be conducted in both German and English.
Maintenance
Maintenance intervals. Maintenance intervals are required for regular planned and unplanned maintenance work on FoxBuild's systems and those of its suppliers, which is necessary to ensure ongoing operations and to carry out updates or improvements. Updates by FoxBuild are not carried out at regular recurring or fixed scheduled maintenance intervals. As a general rule, system maintenance that requires a temporary service interruption will, where possible, be performed by FoxBuild at times that have the least impact on Customers.
Notice and deployment. FoxBuild will inform the Customer of planned system maintenance as early as possible, indicating the anticipated duration of the service interruption and the time at which it will take place. FoxBuild will also indicate the estimated duration of the service outage and the approximate time at which it will occur.
System maintenance and update tasks that do not require a service interruption may be carried out at any time, as they do not affect the availability or use of the system by the Customer.
Emergency maintenance. In urgent cases (remedying faults, preventing imminent attacks, etc.), FoxBuild may carry out migration or maintenance work without prior notice to the Customer.
Further Development and Updates
Further development. The FoxBuild Service made available by FoxBuild and the underlying infrastructure are continuously developed and enhanced, technically and in terms of content.
FoxBuild is entitled both to introduce new features, formats, and content and to modify or discontinue existing features, formats, and content. FoxBuild will inform the Customer of any material change or discontinuation of the service offering at the earliest possible time.
Individual adaptations for specific Customers are possible following consultation with and consent by FoxBuild, provided the Customer bears the development costs and any additional infrastructure costs.
Where suggestions from the Customer are taken up and implemented in the course of developing the FoxBuild Service, the Customer comprehensively, though non-exclusively, transfers any associated rights of the Customer to FoxBuild, enabling FoxBuild to make the result available to all customers.
Updates / Upgrades. Where FoxBuild equips existing modules with new or modified functions, or develops new modules, FoxBuild is entitled at its own discretion to offer these modules as a free or paid additional option.
System requirements. In the course of further development and the introduction of new features and modules, it is possible, due to technical requirements, that the system requirements for using FoxBuild's services may change. The Customer may enquire about such changes at .
Error Handling and Reporting
Error classes. The parties agree on the following error classes for the classification of errors and programming defects:
Class 1. Use of the FoxBuild Service is impossible or unreasonably restricted. The error has a serious impact on essential functions and/or the security of the Service; the service can no longer be used.
Class 2. Purposeful use of the FoxBuild Service is seriously restricted. The error has a material impact on functions and/or the security of the FoxBuild Service, but continued use of the service is still possible.
Class 3. Purposeful use of the FoxBuild Service is slightly restricted. The error has an insignificant impact on the functionality and/or security of the FoxBuild Service and allows continued use of the Service with only minor limitations.
Class 4. Purposeful use of the FoxBuild Service is possible without restriction. The error has no or only negligible impact on the functionality and/or security of the FoxBuild Service. Use of the FoxBuild Service remains fully unrestricted.
Reporting. If the Customer discovers erroneous behaviour, this must be reported to FoxBuild without delay via . The Customer's report must include a description of the problem including the operating system with version and device model designation, the time the error occurred, the affected components, the surrounding circumstances, the commercial impact, and, where possible, a screenshot and/or video of the erroneous behaviour.
Response and resolution times. A reasonable response time until the commencement of error resolution or damage remediation is: 24 hours for Class 1 errors, 72 hours for Class 2 errors, 4 weeks for Class 3 errors, and 8 weeks for Class 4 errors.
The times refer to FoxBuild's service hours at the time of conclusion of the contract or subsequently agreed amended service hours.
Error resolution or damage remediation shall be carried out using resources appropriate to the error class that enable swift processing, and shall be continued without undue delay from commencement to completion.
Reliability
Guaranteed uptime. Where FoxBuild's services include the hosting of applications, FoxBuild warrants an availability of 99%, calculated on a calendar-year basis.
Permitted unavailability. Periods during which services are unavailable in a given month due to planned maintenance, and periods during which services are unavailable due to circumstances beyond FoxBuild's reasonable control, shall constitute permitted unavailability.
Planned maintenance shall comprise the longest single maintenance activity in a given month of which the Customer was notified at least five days in advance. All other maintenance shall count as unavailability.
Circumstances beyond FoxBuild's reasonable control include in particular: force majeure, acts of public authorities, floods, fires, earthquakes, civil unrest, acts of terrorism, strikes or other industrial action, attacks, failures, or delays in telecommunications, internet service providers, or hosting facilities related to hardware, software, or power supply systems not owned by FoxBuild.
Actual uptime. The basis for calculating actual uptime is therefore total time minus permitted unavailability.
Shortfalls. In the event that the percentage actual uptime falls below the percentage guaranteed uptime, the Customer is entitled to demand a credit equal to twice the percentage shortfall. This percentage is deducted from the monthly base fee.
Infrastructure Monitoring
Monitoring. FoxBuild operates its own monitoring system to monitor service performance. The monitoring system sends notifications 24/7 to FoxBuild administrators in respect of critical infrastructure alerts. FoxBuild makes every effort to remedy any outages without delay.
Other security measures. In order to protect FoxBuild's systems and the stored datasets against unauthorised access by third parties to the greatest possible extent, FoxBuild implements appropriate measures, which FoxBuild can communicate to the Customer upon request.
Data Processing on Behalf
GDPR. This Data Processing Agreement sets out the terms for the processing of personal data by FoxBuild with the Customer's approval, in accordance with the General Data Protection Regulation (GDPR). FoxBuild acts as a data processor within the meaning of the GDPR.
Nature, purpose, subject matter, and legal basis of data processing
FoxBuild's services are described in the respective contracts concluded or the offers submitted by FoxBuild to the Customer.
In the course of service provision, the Customer makes available to FoxBuild the personal data required for the performance of the services, by an appropriate means in each case — for example electronically or physically, via project documents, design documents, bills of quantities, written or oral communication, analyses, the exercise of other contractually governed activities, or via service tools.
The processing of personal data may take place in particular through organisation, ordering, storage, and where applicable adaptation or alteration, retrieval, linking, restriction, deletion, combination, copying, concealment, connection, analysis, reading, receipt, transmission, and updating, to the extent required in each case for the performance of the agreed services.
The purpose of the processing is the performance of services owed to the Customer as established by the contract.
Personal data and categories of data subjects concerned
Within the scope of the agreed services, the personal data required for service provision may be processed. In particular, this may include the following data:
- Data from construction plans, project plans, PDF files, image files, bills of quantities, plan registers, and other technical documents
- Metadata
- Contact data
- Usage data
- Project-specific information
- Data relating to service quality
- Personal particulars contained in design documents, comments, or accompanying documents
The Customer acknowledges that FoxBuild has no influence over the categories of personal data processed in the course of service provision. This applies in particular to the possible transmission of special categories of personal data (Art. 9 DSGVO), to the extent these are transmitted by the Customer or from the Customer's documents.
In principle, all categories of data subjects necessary for the performance of the agreed services are subject to processing. These include in particular the following categories of data subjects:
- Employees of the Customer
- Contact persons of the Customer
- Existing or prospective customers of the Customer
- Project participants
- Natural persons named in design and project documents
Given the nature of the agreed services, the Customer acknowledges that FoxBuild is largely unable to review or maintain the above list of categories of data subjects. The Customer therefore undertakes to inform FoxBuild of all necessary changes to the above list.
FoxBuild will process the Customer's personal data with regard to all data subjects listed above in accordance with the agreed services. If changes to the list of categories of data subjects necessitate amendments to the agreed processing operations, the Customer will issue FoxBuild with corresponding additional instructions.
Conditions of data processing
FoxBuild undertakes to comply with all requirements of the GDPR throughout the entire period of service provision.
FoxBuild undertakes to process personal data only on the basis of written instructions in the form of a contract with the Customer. Deviations from these instructions require the Customer's prior written consent.
FoxBuild processes personal data in accordance with the principle of data minimisation pursuant to Art. 5 Abs. 1 lit c DSGVO and therefore only to the extent required for the performance of the agreed services.
Access to the Customer's personal data will be granted exclusively to persons who require such access by virtue of contractual or statutory provisions.
All persons on FoxBuild's side who have access to the Customer's personal data must be bound to confidentiality. In particular, the confidentiality obligation of persons entrusted with data handling shall remain in force after the termination of their activity and their departure from FoxBuild.
FoxBuild is obligated to implement and maintain all appropriate and adequate technical and organisational measures to ensure the availability, confidentiality, and integrity of the personal data for authorised persons. A list of measures implemented by the contractor may be requested. The measures listed therein are to be understood as the minimum standard, which FoxBuild may extend to further comply with the current state of the art.
FoxBuild shall support the Customer in fulfilling its obligations under the GDPR, in particular with regard to the rights of data subjects.
Unless prevented by statutory provisions, FoxBuild will inform the Customer without delay if it receives information or a communication from a data subject, the data protection supervisory authority, or another authority or a third party that is directly or indirectly connected to the processing of personal data within the scope of this Data Processing Agreement.
FoxBuild shall support the Customer in ensuring compliance with the GDPR in respect of Article 32 (security of processing) and Article 36 (prior consultation with the supervisory authority before high-risk processing).
FoxBuild shall inform the Customer without delay, and in any case within 24 hours, if the personal data entrusted to it has been unlawfully used and/or the data subjects are at risk of harm. It shall provide the Customer with all information necessary for the Customer to fulfil its notification obligations towards data subjects under data protection law.
In connection with the commissioned data processing, FoxBuild shall — to the extent legally required — support the Customer in preparing and updating the record of processing activities, in carrying out data protection impact assessments, and where applicable in prior consultations with the data protection supervisory authority within the meaning of Art. 36 DSGVO, providing all necessary particulars and information. Furthermore, FoxBuild will maintain its own record of processing activities and, if required, carry out data protection impact assessments and appoint a data protection officer.
Any transfer of personal data by FoxBuild to a third country or international organisation shall be carried out in accordance with EU or national law and must in particular comply with the provisions of the GDPR.
Sub-processors
Depending on the contractually agreed scope of services, various sub-processors may be involved in the data processing.
The use of sub-processors may result in data transfers to third countries. FoxBuild ensures that data transfers to third countries are in principle carried out in a manner compliant with the GDPR. The Customer shall verify whether the transfer of personal data to third countries pursuant to Articles 44–49 DSGVO in the context of the individual use of the services offered by FoxBuild can be carried out in a GDPR-compliant manner.
A list of the sub-processors approved by the Customer upon conclusion of the Agreement is set out in Annex 1.
A contract in accordance with Art. 28 Abs. 4 DSGVO must be concluded between FoxBuild and the sub-processor. The sub-processing agreement must take into account the data protection provisions to the same extent as agreed between the Customer and FoxBuild in this Agreement, and data processing may only take place for the purpose specified in the separately commissioned service.
FoxBuild shall regularly verify that the sub-processors comply with the data protection obligations incumbent upon them under this Data Processing Agreement. Should FoxBuild, in the course of such verification, become aware that a sub-processor is not fulfilling or not adequately fulfilling its data protection obligations under this Data Processing Agreement, FoxBuild shall inform the Customer of this promptly and without being requested to do so.
FoxBuild will notify the Customer of any planned changes to the list of sub-processors engaged for the provision of the service by e-mail to an e-mail address provided by the Customer. Should the Customer not provide such an address, the e-mail address of the person at the Customer's organisation with whom the main agreement was negotiated will be used. Should this address no longer be available, FoxBuild will use the e-mail address published on the Customer's website for general contact purposes. The Customer may object to the change in writing, with an e-mail also satisfying the written-form requirement. Should the Customer fail to object to the sub-processor within 14 calendar days of the date on which the notification was sent, the sub-processor shall be deemed approved. In the event of an objection, the Customer and FoxBuild will enter into discussions to resolve the conflict, with an extraordinary right of termination of the main agreement agreed for both parties in the event that the conflict cannot be resolved.
Audit and compliance
FoxBuild shall permit the Customer or its designated representatives to carry out audits and inspections to verify compliance with the provisions of this Data Processing Agreement. Such audits shall be carried out with reasonable advance notice and must not unreasonably disrupt FoxBuild's operations. The Customer acknowledges that any inspections of sub-processors must be coordinated directly with those sub-processors and that FoxBuild has no influence over the terms applied in that context.
FoxBuild shall provide the Customer with all information necessary and shall cooperate with the Customer to demonstrate compliance with the GDPR.
Term and termination of data processing
This Data Processing Agreement remains in force for the duration of the data processing activities and terminates upon completion of service provision or as otherwise agreed between the parties.
Upon termination of the Data Processing Agreement (or also at any time prior thereto upon corresponding request by the Customer), FoxBuild will, at the Customer's election, either destroy the processed personal data (including any copies) or transfer it in full to the Customer, provided no statutory or contractual retention obligation precludes this. Until the data is deleted or returned, the data processor shall continue to ensure compliance with these clauses. Should the Customer not indicate its preferred course of action, FoxBuild will destroy the data, subject to any statutory or contractual retention obligations, six months after termination of the Agreement.
FoxBuild is equally obligated to procure the destruction or transfer by any sub-processors.
Data Protection Information Relating to this Agreement
Data arising from this Agreement. In the course of providing the FoxBuild Service, any licence auditing, and product optimisation (developing new and improving existing products), FoxBuild collects data from the Customer and its employees in the form of information on data usage, system statistics, and computer and network data, pursuant to Art. 6 Abs. 1 lit. b DSGVO. In addition, the Customer's personal data is processed for the purpose of fulfilling legal obligations pursuant to Art. 6 Abs. 1 lit. c DSGVO (such as accounting). Pursuant to Art. 6 Abs. 1 lit. f DSGVO, FoxBuild processes the Customer's personal data for the purpose of documenting the business relationship.
Mandatory data provision / consequences of non-provision. There is no statutory or contractual obligation on the part of the Customer to provide personal data. However, if the Customer fails to provide FoxBuild with the personal data required for the performance of the contract before it is concluded, this will result in FoxBuild being unable to submit an offer to the Customer or a contract between FoxBuild and the Customer not being concluded.
Retention period. The Customer's personal data will be retained for at least seven years for the purpose of fulfilling statutory obligations pursuant to § 132 Abs. 1 BAO. In addition, the Customer's personal data will be stored for the purpose of product development, documentation, and fulfilment of legal obligations for a maximum of ten years after completion of the orders.
Where no contract has been concluded between FoxBuild and the Customer, the Customer's personal data will be retained for the purpose of documenting the business relationship for an anticipated period of twelve months.
Disclosure. All data is subject to the agreed or statutory obligation of confidentiality and the protection of personal data. The Customer's data may be disclosed in particular to recipients typical in commercial practice, such as banks, tax advisers, and legal counsel, or only on the basis of a statutory provision or in coordination with the Customer.
Disclosure to other recipients shall only take place on the basis of a statutory provision or in coordination with the Customer.
Worldwide processing. The processing of the Customer's personal data by FoxBuild shall — where possible — be carried out exclusively within the European Union.
Processing or transfer of the Customer's personal data to third countries shall only take place
- where this is necessary for the performance of the contract between FoxBuild and the Customer (Art. 49 Abs. 1 lit. b DSGVO), or
- where this is necessary for the implementation of pre-contractual measures at the Customer's request (Art. 49 Abs. 1 lit. b DSGVO), or
- following notification by FoxBuild of the possible risks of data processing in the third country in which the data processing is planned, and the Customer's express consent pursuant to Art. 49 Abs. 1 lit. a DSGVO.
Right to object. The Customer has the right to object to the processing of its personal data pursuant to Art. 6 Abs. 1 lit. f DSGVO. In the event of an objection, its personal data will no longer be processed for the purpose of direct marketing.
Rights of data subjects. The Customer has the right to access, rectification, and erasure of its personal data, the right to restriction of processing, the right to data portability, and the right to lodge a complaint with the data protection authority.
Loyalty Obligations and Non-Solicitation
Loyalty obligations. The contracting parties are obligated to promote the reputation of the other contracting party and in particular to refrain from criticising the other contracting party vis-à-vis third parties. This obligation applies in perpetuity beyond any termination of the contract.
Trade secrets. A trade secret is information that
- is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with this kind of information,
- has commercial value because it is secret, and
- has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
Trade secrets include in particular the business ideas and strategies pursued by FoxBuild and their implementation, the details of the contracts concluded between the contracting parties and their subject matter, and — in the case of FoxBuild's services — in particular their architecture, source code, developer and administrator documentation, as well as all other data from which the function of the software or relevant parts of the software can be derived, internal models, prompting structures, evaluation logic, and security-sensitive data.
The Customer is obligated to ensure the confidentiality of trade secrets by means of technical and organisational measures and to prevent such trade secrets from being unlawfully acquired, used, or disclosed.
Use by the Customer is only permitted to the extent agreed.
Non-solicitation. The Customer undertakes not to solicit FoxBuild's employees. This obligation applies for three years beyond any termination of the contract. In the event of a breach of this obligation, the Customer shall pay a contractual penalty equal to the gross annual salary of the solicited employee.
Fees
Prices. All prices are quoted from FoxBuild's registered office or place of business, in contracts with commercial entities in euros, exclusive of value added tax.
Billing mode. Services shall in principle only be provided after full payment has been received.
Fixed-fee billing. In the case of fixed-fee billing, the fixed fee covers all services necessary for the performance of the agreed services. Excluded are the costs of unforeseeable events, additional costs resulting from the Customer's non-contractual cooperation, and additional costs due to hidden defects in services provided by the Customer.
Time-and-materials billing. In the case of time-and-materials billing, invoicing shall be based on actual effort incurred. A billing arrangement is deemed to be on a time-and-materials basis where the expected effort is stated as approximate, estimated, or indicative.
Billing within a contingent of hours. Where a contingent of hours is agreed for a specific period, this serves to secure a minimum availability of FoxBuild for the Customer during that period.
Any unused hours from such a contingent may therefore not be carried over to subsequent periods but shall lapse without giving rise to any right to a price reduction.
If the contingent of hours proves insufficient, FoxBuild shall notify the Customer as early as possible. Exceeding the contingent is only permitted with the Customer's consent, unless the excess is necessary to carry out urgent measures to avert damage to the Customer and obtaining the Customer's consent in time is not possible.
Additional services. All FoxBuild services not expressly covered by the agreed fee — in particular subsequently agreed additional services — shall be remunerated separately.
Partial services. Furthermore, FoxBuild is entitled to invoice partial services. The individual line items of the service description shall in any event constitute partial services.
Advance payment. Furthermore, FoxBuild is entitled to require advance payments to cover its own costs in the full amount of the next partial service to be provided in the case of new customers, where agreed third-party services are being invoiced through, where there are indications of financial difficulties, in cases of past payment default, and where there are indications of the Customer's unwillingness to pay.
Credits in the event of failure to meet guaranteed availability. Where the Customer wishes to receive a credit in the event of failure to meet guaranteed availability, the Customer must, on pain of forfeiture of the claim, request such credit within 60 days of becoming aware of FoxBuild's failure to meet the guaranteed uptime via the support e-mail address and declare the set-off against the base fee of the next invoice. Any other use of the credit is excluded.
Price adjustment. In the case of contracts for an indefinite period and contracts with automatic renewal, FoxBuild is entitled to make an appropriate annual price adjustment taking into account the consumer price index.
FoxBuild is also otherwise entitled to make an appropriate price adjustment after conclusion of the contract where the costs of the services increase by more than 3% through no fault of FoxBuild. The cost increase must be demonstrated by FoxBuild, and the absence of any possibility of influencing it must be made credible.
Unjustified withdrawal. In the event that the Customer withdraws from its order in whole or in part without grossly negligent or intentional fault on the part of FoxBuild, FoxBuild is nevertheless entitled to the agreed fee. FoxBuild must in this case only offset savings from purchases not yet made. The same applies where FoxBuild withdraws from the contract for cause attributable to the Customer's sphere.
Payment
Due date. FoxBuild's invoices are due from the invoice date without any deduction. Services shall in principle only be provided after full payment has been received.
Payment period. FoxBuild's invoices are to be paid within 7 days of receipt of the invoice.
Payment period for online transactions. In the case of online transactions, FoxBuild's invoices are to be paid upon placement of the order.
Bank transfer. Payment shall in principle be made by bank transfer to the designated account. Cash payment is excluded.
Other payment methods. The Customer is further entitled to use any other payment methods offered by FoxBuild. The charge is applied at the moment of payment by the Customer.
Agreed third-party services. FoxBuild is entitled to commission the third-party service, at its own election, either in its own name or in the name of the Customer, and either at its own expense or at the Customer's expense.
Where FoxBuild concludes the contract in its own name and/or at its own expense, this is done exclusively in the Customer's interest for the purpose of simplifying contract and payment processing.
Retention of title. Until full payment by the Customer, a retention of title in favour of FoxBuild in respect of goods delivered by FoxBuild shall be deemed agreed until the purchase price and all associated interest and costs have been paid in full. In the event of default, FoxBuild is entitled to assert rights arising from the retention of title. The Customer consents in this event to FoxBuild collecting the goods. Enforcement of the retention of title by FoxBuild does not constitute withdrawal from the contract, unless FoxBuild expressly declares withdrawal from the contract.
In the event of a resale of the goods by the Customer, the Customer assigns its claim against the purchaser to FoxBuild for the purpose of security. FoxBuild is entitled to notify the purchaser of this assignment.
Prohibition of set-off and right of retention. The Customer is not entitled — even in respect of related claims — to set off its own claims against claims of FoxBuild, unless the Customer's claim has been acknowledged by FoxBuild in writing or established by a court. A right of retention in favour of the Customer is excluded.
Payment default. In the event of late payment, the statutory interest rate applicable between commercial entities shall apply, but at a minimum of 9% per annum. The Customer shall bear all costs and expenses associated with the recovery of the claim, including in particular debt collection fees and other costs necessary for appropriate legal enforcement.
Continued payment default. Following unsuccessful demand to the Customer with the setting of a grace period of at least 7 days, FoxBuild is entitled to invoice and render immediately due all services and partial services already provided — including under other contracts concluded with the Customer — and to temporarily suspend the provision of services for which payment has not yet been made until all outstanding fee claims have been paid in full.
Following a further unsuccessful demand addressed directly to the Customer's management with the setting of a further grace period of at least 7 days, FoxBuild is entitled to withdraw from all contracts and to claim compensation for lost profits. FoxBuild is thereby also entitled not to perform or to cease performing services already paid for.
Independently of these options, FoxBuild may of course also file a claim with the court immediately after the due date.
Instalment payment. Where FoxBuild and the Customer conclude an instalment payment arrangement, acceleration of the entire outstanding balance shall be deemed agreed in the event of failure to pay even a single instalment on time.
Expiry of credits. The Customer is entitled to consume services purchased from FoxBuild — in particular credit balances (credits) — within 24 months of the date of purchase. After expiry of this period, any unused services shall lapse without replacement.
Restrictions on Use and the Customer's Responsibility
Permitted use of AI. The use of the FoxBuild Service, including all AI-assisted evaluations configured or deployed by the Customer, is permitted exclusively for purposes that fall within the scope of ordinary business activities and are consistent with applicable statutory provisions.
Liability for content and documents. The Customer is solely responsible and fully liable to third parties and FoxBuild for all content, data, design documents, documents, instructions, and other information uploaded, entered, generated, distributed, or processed through its use of the FoxBuild Service.
Responsibility for sensitive data. The Customer is aware that when using the FoxBuild Service it must exercise care as to what information it transmits to the Service.
In the case of sensitive processes and sensitive documents — in particular projects with heightened confidentiality requirements, personal data, security-sensitive information, design statuses requiring confidentiality, or protected tender documents — the Customer is obligated to implement appropriate organisational and technical security measures.
No binding construction site documentation. The Customer is aware that FoxBuild is an AI-assisted service that automatically transcribes and analyses voice notes and derives construction site reports and documentation from them. Due to the technical nature of AI systems, it cannot be excluded that results may be incomplete, erroneous, misleading, or unsuitable in individual cases.
The results generated by FoxBuild therefore do not constitute binding, definitively verified, or normatively guaranteed construction site documentation. FoxBuild serves as a supporting tool for improving efficiency in construction site documentation and does not replace a specialist review of the content by qualified persons.
Duty to review before use. The Customer is obligated to carry out its own specialist review of all results generated by FoxBuild before using them. This applies in particular before use in or for tender procedures, offers, contract awards, cost estimates, cost calculations, project management, procurement, construction execution, billing, or other commercial or technical decisions.
Prohibition of misuse. The Customer is prohibited from using the FoxBuild Service or the infrastructure made available by FoxBuild for unlawful, deceptive, fraudulent, or otherwise abusive purposes.
Additional terms for partners. Customers using the FoxBuild Service within the framework of a partnership are additionally subject to the respectively agreed partner terms.
Liability
Classic works contract. In the case of classic works-contract services, FoxBuild is liable for achievement of the result.
Purchase of resources. In the case of the mere purchase of resources such as working time, the Customer is itself responsible for achieving the result. FoxBuild is only liable for the proper performance of the specific detail services commissioned.
Customer interventions. Where the Customer independently makes unauthorised alterations to FoxBuild's services or makes undocumented or no longer easily traceable changes, the Customer is liable for any additional costs thereby incurred by FoxBuild, e.g. for completion, verification, documentation, defect identification, defect attribution, and defect rectification.
Obligation to give notice of defects. Following a request by FoxBuild for interim acceptance, following delivery, and following commencement of live operation, the Customer shall accept ("approve") the delivered or to-be-accepted services in writing within 8 days at the latest, or shall notify any defects or damage in writing.
In the case of interim acceptance, FoxBuild may only continue work following completion of interim acceptance / "approval". If acceptance or notification of defects is not made in time, the services shall be deemed automatically accepted by the Customer.
Latent defects or damage that become apparent only after the expiry of 8 days but within applicable warranty, guarantee, or damages limitation periods must also be notified by the Customer within 8 days of becoming apparent.
The obligation to give notice of defects applies to all defects or damage that the Customer would need to identify with the diligence of a prudent businessman upon proper inspection. In the case of interim acceptances, the inspection must, given the particular importance of interim acceptances for preventing defects that may propagate through all subsequent stages of performance, correspond to a final, detailed, and particularly thorough inspection. At delivery, the inspection must correspond to an initial but nonetheless careful inspection. At commencement of live operation, the inspection must, given the particular importance of the commencement of live operation for preventing damage during operations, again correspond to a final, detailed, and particularly thorough inspection.
The Customer's notification of defects must describe the defect or damage in detail and in a comprehensible manner. In the case of defects or damage that do not occur continuously, the exact times and circumstances of occurrence must be stated. The Customer shall enable FoxBuild to take all measures necessary for the investigation and remediation of the defects or damage. If the Customer fails to notify defects in time, the assertion of warranty, guarantee, and damages claims as well as claims under other liability provisions — in particular indemnification claims — by the Customer is excluded.
Guarantee. To the extent that parts of FoxBuild's services are covered by a guarantee granted by a third party, such guarantee must be asserted directly against the third party (e.g. manufacturer's guarantee).
In the event of a guarantee undertaking by FoxBuild, the limitation period for asserting the guarantee claim commences upon delivery. The guarantee claim is time-barred six months after the Customer becomes aware of the occurrence of the guarantee event, but no later than upon expiry of the guarantee period. If the content of the guarantee does not follow from the guarantee undertaking, FoxBuild shall be liable for the properties ordinarily to be expected.
Warranty. In the case of services concluded on the basis of this SaaS Agreement, the Customer has a right to defect remediation in accordance with the service level implemented in this Agreement. In the case of services not concluded on the basis of this SaaS Agreement or services provided by FoxBuild for the Customer after termination of this SaaS Agreement, the right to warranty and the right to warranty indemnification is limited to six months from delivery.
The Customer is entitled to improvement or replacement, or — in the case of non-material defects — to a price reduction, or — in the case of material defects — to rescission, at FoxBuild's election. Remediation of the defect neither extends the warranty period nor causes it to restart with respect to the affected part of the service.
Update obligation. The update obligation pursuant to § 7 VGG is excluded.
Error and laesio enormis. The right to challenge the contract on grounds of error and for gross disproportion (laesio enormis) is excluded.
Damages and other claims. Damages claims and claims under other liability provisions — in particular indemnification claims — of the Customer are excluded unless they are based on gross negligence or intentional misconduct by FoxBuild.
This applies in particular to damages, additional costs, miscalculations, economic losses, project delays, tendering errors, offer errors, award errors, billing errors, or other disadvantages arising from the Customer's use of results generated by FoxBuild without review or with inadequate specialist review.
Such claims are time-barred six months after the Customer becomes aware of the damage and the party responsible; but in any event after three years from the date of the wrongful act.
Excepted from this exclusion of liability are claims arising from personal injury and from other non-derogable liability provisions.
Liability in the event of failure to meet guaranteed uptime. Liability in the event of failure to meet guaranteed uptime is, where not based on intentional misconduct or gross negligence, limited to the issuance of a credit in the agreed form and amount.
Liability for agreed third-party services. The third parties performing the agreed third-party services are not vicarious agents of FoxBuild, are not acting in pursuit of FoxBuild's interests, and are therefore not within FoxBuild's sphere of risk.
With respect to the agreed third-party services themselves — but not with respect to their professional commissioning, coordination, and processing — any fault-based liability of FoxBuild is additionally reduced to liability for culpa in eligendo and any no-fault liability of FoxBuild is excluded.
Where the third-party services are engaged at the Customer's instruction, i.e. selected by the Customer, any liability of FoxBuild is excluded.
Liability for third-party services integrated by the Customer. FoxBuild bears no liability for third-party services integrated by the Customer. Should FoxBuild, however, be informed of the unlawfulness of such third-party services, FoxBuild is entitled and legally obligated to deactivate or delete such third-party services or to terminate the contract with the Customer for cause. The Customer shall indemnify and hold FoxBuild harmless with respect to such third-party services.
Liability for the use of third-party services and components. To the extent that FoxBuild, by contractual agreement, builds upon third-party services and components, any no-fault liability of FoxBuild for those third-party services and components is excluded and any fault-based liability is additionally reduced to liability for culpa in eligendo.
Liability for integration of services, products, data, and rights by the Customer. FoxBuild bears no liability for components, interfaces, data, rights, or other services or products of the Customer or third parties that are processed or integrated by the Customer. Should FoxBuild, however, be informed of the unlawfulness of such components, interfaces, data, rights, or other services or products, FoxBuild is entitled and legally obligated to deactivate or delete such components, interfaces, data, rights, or other services or products, or to terminate the contract with the Customer for cause. The Customer shall indemnify and hold FoxBuild harmless accordingly.
Liability for free-of-charge services. To the extent that FoxBuild provides services or parts of services free of charge, any liability for such services is excluded.
Third-party protective effects. It is expressly agreed that this Agreement does not confer any protective effect on third parties.
Burden of proof. A reversal of the burden of proof to the detriment of FoxBuild is excluded. In particular, the existence of the defect at the time of delivery, the time of discovery of the defect, the timeliness of the notification of defects, as well as the existence and degree of fault are to be proven by the Customer.
Grace period. In the event of non-contractual performance, the Customer is only entitled to assert claims after having granted FoxBuild in writing an appropriate grace period of at least fourteen days. This also applies to termination of the contract for cause.
Withdrawal from contract. Withdrawal from the contract by the Customer must be declared in writing to office@foxbuild.io.
Final Provisions
Governing law. All legal relationships and matters between the Customer and FoxBuild shall be governed exclusively by Austrian law, to the exclusion of conflict-of-laws rules.
Jurisdiction. The competent Austrian court for Vienna is agreed as the court of jurisdiction for all disputes between FoxBuild and the Customer. FoxBuild is, however, also entitled to bring an action before the court of general jurisdiction for FoxBuild and the Customer.
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