1. Preamble

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1.1. Greenbird Vertriebs GmbH ("GBV") is a limited liability company registered under FN 462324p in the commercial register of the regional court of Wiener Neustadt with its registered office in Breitenfurt and is affiliated with Greenbird International AG as a group. The business purpose of GBV is, among other things, the sale, installation, operation and associated maintenance of the GREENBIRD system.

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1.2. Greenbird International AG ("GIA") is a stock corporation registered in the Zurich Commercial Register under number CHE-100.713.678 and has its registered office in Zurich. The corporate purpose of the GIA is, among other things, the development and maintenance of software including data hosting and the associated data evaluation and data management.

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1.3. GIA has developed a system for modern and efficient building cleaning and for improved control of cleaning staff and, based on this, created digital cleaning software with the aim of improving cleaning processes and the associated cost efficiency. This so-called GREENBIRD system has been filed for trademark and patent protection (PCT/EP2016/076202 and PCT/EP2017/077894).

 

1.4. Due to a corresponding license agreement with GIA, GBV is exclusively entitled to sell, set up, operate and maintain the GREENBIRD system in Austria.

 

1.5. The customer confirms that he is an entrepreneur within the meaning of the Value Added Tax Act and that he is only using the GREENBIRD system within the scope of his business operations.

 

1.6. The GREENBIRD system consists of the following components, with the help of which corresponding cost-saving potentials are to be achieved in building cleaning, which can only be obtained in their entirety: Sensors for recording environmental data; Transmission devices for data transfer; Server for storing the transmitted environment data; the GREENBIRD software, which uses the transmitted environmental data to create a cleaning plan at regular intervals; Receiver devices or apps for cell phone and tablet reception.

 

2. Subject of the contract

 

2.1. The subject of this contract is the installation, operation and maintenance of the GREENBIRD system for the premises of a customer who has placed a cleaning order with the service provider.

 

2.2. The specific scope of the services to be provided by GBV results from ANNEX ./1. GBV undertakes to set up the hardware components specified in ANNEX ./1 as required by the customer in accordance with ANNEX ./2 (room book/plan).

 

2.3. The customer undertakes to sign the agreement attached as ANNEX ./3 in accordance with the GDPR upon conclusion of the contract. He also undertakes to obtain the service provider's agreement with him attached as ANNEX ./4 in accordance with the GDPR and to hand over a copy to GBV within 14 days of the signing of this contract; the same applies analogously to the declaration of consent attached as ANNEX ./5 for the installation and operation of the GREENBIRD system.

 

2.4. The customer expressly agrees that GBV collects, stores and processes movement data through its own movement sensors. The processing is absolutely necessary, in particular for the creation of an up-to-date cleaning plan. The customer will also ensure that the service provider issues a corresponding declaration of consent.

 

3. Fee and terms of payment

 

3.1. The prices and conditions agreed upon when the contract was concluded shall apply, which were mutually agreed in ANNEX ./1.

 

3.2. All agreed prices are net prices and are to be transferred by the customer to GBV's account plus VAT at the statutory rate. All invoices are due for payment promptly after invoicing without deductions, unless otherwise agreed in ANNEX ./1.

 

3.3. Any interest on arrears is determined according to the statutory provisions of the UGB.

 

3.4. The prices agreed in ANNEX ./1 are not subject to any reimbursement or reduction unless such is provided for by mandatory law.

 

3.5. Costs in connection with changes to the hardware and software that have to be made due to new legal regulations and regulations and their implementation are subject to separate charging in accordance with the prices agreed in ANNEX ./1. Excluded from this are - if necessary - measures in connection with the implementation of the General Data Protection Regulation.

 

4. Protection of value

 

4.1. Stability of value is agreed for all prices agreed in ANNEX ./1.

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4.2. The adjustment takes place according to the results of the joint wage and price commission on January 1st. of every year. It is noted that the results of the Joint Wage and Price Commission are usually available in the first quarter of each year. With regard to the first quarter, there may therefore be a subsequent settlement of the price adjustment.

 

4.3. The non-prescription of the value guarantee does not mean the waiver of the assertion of the agreed value guarantee, rather a waiver of the application of the value guarantee requires the written form.

 

 4.4. In the event of a change in the calculation basis of the Joint Wage and Price Commission or the complete discontinuation of the same, an official or semi-official index number that may replace the price setting by the Joint Wage and Price Commission will be agreed as the benchmark for calculating the change in the purchasing power of the euro . If such an index is no longer published at all, a price adjustment mechanism is to be determined by an expert acting as arbitrator at the request of a contractual partner, which is binding for both parts and which reflects the key figures that the Joint Wage and Price Commission used as the basis for its decisions

 

5. Warranty Related to the Software

 

5.1. GBV guarantees the functionality of the software made available under this contract and the associated services.

 

5.2. A program error subject to warranty exists if the software, when used as intended and under the defined application and operating conditions, deviates from the warranted applications, functions and services to such an extent that its suitability for the intended use is canceled or significantly reduced.

 

5.3. For a period of 6 months after the date the software or an update has been made available to the customer, GBV will correct software errors subject to warranty in the valid, unmodified version free of charge, which the customer reports to him sufficiently documented within 10 working days after their detection. The documentation is sufficient if it enables proof of the application and operating conditions under which a software error occurs.

 

5.4. GBV's services include, at its option, the provision of a correction code or a corrected version of the software or the development of an alternative solution to circumvent or suppress the error.

 

5.5. The customer will support GBV in the analysis of the causes and conditions of the program error and in the development and testing of the correction code or a workaround to an appropriate and reasonable extent.

 

5.6. If GBV does not succeed in correcting reported and documented software errors and the software is therefore completely unsuitable for the agreed use, the customer can terminate this contract immediately after a grace period of at least 30 days set by registered letter. GBV cannot guarantee that the software can be used uninterruptedly and error-free in all combinations desired by the customer with any data, IT systems and other programs, nor that the correction of a software error will rule out the occurrence of further software errors.

 

5.7. GBV is relieved of its guarantee obligation to the extent that a software error is due to circumstances for which it is not responsible, such as in particular unauthorized changes to the application and operating conditions described in the appendix; unauthorized interference with the program by the customer or third parties; customer or third party operator error; Influences from systems or programs not supplied by GBV.

 

5.8. If it turns out that GBV is not responsible for a software error or that GBV has incurred additional expenses as a result of the customer not correctly fulfilling the obligation to cooperate and document, GBV has the right to charge the customer for the costs actually incurred for the analysis and correction of the Errors to be invoiced according to time and material expenditure.

 

5.9. GBV is willing to provide services to maintain the functionality of the software for the intended use after it has been made available or after the warranty period has expired for a specific or indefinite period of time based on the approaches, specifications and conditions of a separate software maintenance contract or on the basis of a special agreement with the customer to perform or to have performed.

 

6. Warranty Related to Hardware Components

 

6.1. The hardware required to operate the GREENBIRD system is owned or at the exclusive disposal of GBV.

 

6.2. GBV guarantees the customer the function of the hardware components in accordance with the statutory provisions.

 

6.3. GBV is not liable for defects or damage caused to the customer or the service provider by disregarding the handed over and notified usage regulations or manufacturer's instructions for the components used. In this case, the customer has to pay for the repairs at his own expense and for the replacement of the defective components by GBV.

 

6.4. The repair or replacement of hardware components is carried out exclusively by GBV or a company commissioned by GBV. A conversion or price reduction is mutually excluded. Unless otherwise agreed, damage and/or errors in the hardware will be rectified on the next working day at the earliest.

 

6.5. The customer is obliged to immediately notify GBV in writing of missing functions or damage or theft of hardware components.

 

6.6. In the case of missing functions of the hardware components (without cause or external influence), GBV will carry out a repair as soon as possible at its own expense or replace the defective components with new ones.

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6.7. In the event of damage or destruction of the hardware components, the customer must first take all reasonable measures to keep (further) damage to the components as low as possible. The customer must also immediately submit a written damage report to GBV. This also applies analogously to theft. The repair or replacement of the damaged components is carried out at the expense of the customer according to the prices agreed in ANNEX ./1. In the event of a total loss or theft, the customer is obliged to pay GBV compensation per component in the amount of the replacement value in accordance with ANNEX ./1 less an amortization of 10% per year (starting with the 13th month from the start of the contract).

 

7. Provisions related to data processing

 

7.1. GBV collects, evaluates and maintains the data within the scope of this contract from the point of view of the greatest possible care, reliability and availability and has the appropriate technical equipment. However, outside of the general duty of care, GBV does not guarantee that these services will be accessible without interruption, that the desired connections can always be established or that stored data will be retained under all circumstances (e.g. backups).

 

7.2. The username agreed with the customer, in combination with the password assigned by GBV or the customer himself, enables access to the software. Username and password are unique and clearly identify the client to GBV. The customer is therefore obliged to keep the password secret. The customer is liable for damages incurred by the customer, GBV or third parties that are attributable to insufficient confidentiality or security of the password by the customer.

 

7.3. The non-intended use of the services entitles GBV to immediately revoke the access authorization and to offset the effort for localization, determination of the scope and repair of the damage on the system of GBV and the other affected systems. GBV reserves the right to physically and/or logically disconnect the customer from the network immediately and without warning if there is reasonable suspicion that his access is emanating from activities that endanger the security or operation of GBV or other computers. The costs of detecting and tracking the activities, the interruption of the connection and any repairs are to be borne by the customer at the hourly rates usually charged by GBV at the time.

 

7.4. In order to maintain and guarantee the security and availability of the service, GBV carries out maintenance work, conversions or extensions to the infrastructure as required. GBV endeavors to carry out this work outside of normal business hours as far as possible, to keep the resulting service interruptions as short as possible and to inform the customer of any failures in advance. If the urgency of the work to be carried out does not allow this, GBV reserves the right to carry out work without prior information and notification of the customer.

 

7.5. GBV has the unrestricted right to commission third parties to carry out the data processing, provided that the third party operates a computer/data processing center that is recognized on the market, has its registered office in Austria or in the European Union and all data is stored on a data processing system in Austria or in the European Union Union operates and a corresponding data protection declaration has been concluded with this third party. The customer must be informed in writing at least 2 weeks in advance of GBV's intention to commission such a service provider. If the customer does not object to the planned assignment in writing within 1 week, the named service provider is deemed to have been approved. The customer guarantees to hand over the relevant agreements regarding the transfer of data for the purpose of processing as a service in accordance with the GDPR in their own name as an original and those of the service provider as a copy to GBV within a period of one week.

 

7.6. If GBV suffers a disadvantage as a result of non-compliance with these deadlines, the customer undertakes to indemnify and hold GBV harmless in this regard.

 

8. Force Majeure

 

8.1. If the services cannot be provided or can only be partially provided as a result of force majeure, the obligation to perform will be suspended or postponed for the duration of the event. GBV is not liable for these cases, unless there is gross negligence on the part of GBV.

 

8.2. Events of force majeure include, without limitation, events such as fire, flood, earthquake, storm, lightning, epidemic, war, strikes or riots of any other kind, sabotage, failure to obtain governmental or private permits or authorizations, provided that this is not the case is due to a breach of duty or omission on the part of the contracting party requesting it, changes in the legal and regulatory situation or at the political level, damage caused by animals (rodents, etc.) and all those events that are outside the direct commercial sphere of influence of the affected contractual partner.

 

8.3. In any case, GBV endeavors to keep the effects of such events as low as possible, insofar as this is technically and economically possible.

 

9. Grant of Rights

 

9.1. With regard to the GREENBIRD system, GBV grants the customer a non-exclusive right of use limited to the term of this contract.

 

9.2. As part of this granting of rights, the customer is entitled to use the GREENBIRD system for the contractual use during the contract period and to use it within this framework. 9.3. Any use must include a reference to GBV's copyright.

 

9.4. The customer is not entitled to hand over the GREENBIRD system to a third party without the prior consent of GBV, in particular to sell, rent or lend it to third parties. The customer is obliged to protect the GREENBIRD system against unauthorized access by third parties and must take all necessary organizational and technical measures to do so.

 

9.5. The customer is not entitled to reverse engineer, decompile or reassemble the GREENBIRD system in whole or in part beyond the extent permitted by law. Furthermore, the customer is not entitled to circumvent the specifications and restrictions (e.g. with regard to the number of users) agreed under this contract.

 

9.6. The customer is obliged to attach a note to all communications (invoices, notifications, etc.) including the word and figurative mark "GREENBIRD-System". The customer is granted the non-exclusive, non-transferable and revocable right to use the logotype "GREENBIRD" on his business papers, advertising materials, websites, etc. free of charge for the duration of this contract.

 

9.7. The customer grants GBV the unlimited right to announce the fact that the customer is a user of the GREENBIRD system as a reference in commercial transactions and e.g. on its homepage by citing the name and using any logos, word/image marks of the to be used by customers free of charge and for an unlimited period of time. The customer undertakes to provide GBV with an identical granting of rights by the end customer to be named as a reference customer.

 

10. Liability

 

10.1. GBV is liable to the customer in accordance with the statutory provisions for all damage based on intent or gross negligence within the scope of the provision of its services. GBV's liability for slight and gross negligence as well as for consequential damages, consequential damages or immaterial damages (in particular lost profits, unrealized savings, additional expenses of the customer, as well as compensation for property damage in the event of corporate damages under the Product Liability Act or third-party claims) is excluded. GBV's liability is limited to the amount of the business liability insurance it has taken out.

 

10.2. GBV is not liable if it is prevented from performing services under this contract in a timely and proper manner for reasons for which it is not responsible. The dates provided for the fulfillment are extended according to the duration of the influence of the circumstances for which GBV is not responsible. GBV is not liable for damage and consequential damage to the customer's data and software caused by unauthorized access by third parties (hack).

 

10.3. The customer cannot derive any legal consequences or claims from temporary disruptions to the GREENBIRD system due to failure of the necessary infrastructure (in particular electricity or internet).

 

10.4. The customer must also indemnify and hold GBV completely harmless with regard to any claims for damages by third parties.

 

11. Duration of Contract and Termination

 

11.1. This contract comes into force on the date agreed in the cover sheet and is concluded for an indefinite period of time, unless a different regulation has been made in ANNEX ./1. The customer waives the exercise of his ordinary right of termination for a period of 3 calendar years, calculated from the first of the year following the conclusion of the contract, unless otherwise agreed in ANNEX ./1. In the event that the customer has given a waiver of termination, the waiver of termination is extended by the same period if the customer does not terminate this contract on the key date of expiry of the waiver of termination.

 

11.2. Each contractual partner can cancel this contract by observing a notice period of 3 months on December 31st. each year in writing.

 

12. Termination of the contract for important reasons

 

12.1. GBV can terminate this contract with immediate effect and withdraw the rights granted to the customer or discontinue the agreed services if the customer does not submit a copy of the service provider’s declaration of consent in accordance with ANNEX ./4 within 14 days of the conclusion of the contract or the service provider fails to submit this declaration revokes for whatever reason; if the customer violates this contract in a serious manner, in particular if the customer is at least 30 days in arrears with payment despite a written reminder or continues to comply with the provisions of this contract despite a written warning and a reasonable period of at least 14 days to restore the contractual condition contravenes if the customer continues to neglect the components provided despite a written reminder from GBV or does not treat them in accordance with the known manufacturer's instructions; if the customer becomes insolvent or insolvency proceedings are opened against his assets or are rejected for lack of assets.

 

12.2. If GBV makes use of its right to terminate the contract immediately for important reasons, the customer has to pay two more monthly fees as a deinstallation fee due to the premature termination of the contract in his sphere.

 

12.3. When the notice period expires, the customer's right to use the GREENBIRD system as intended expires.

 

12.4. GBV will uninstall the components provided. If the customer fails to agree an appointment for deinstallation or if the customer refuses access to his premises for deinstallation, GBV has the right to charge the recurring fee until further notice.

 

12.5. The customer is obliged to stop using the software or to make no more use of his login data after the period of notice has expired. If the customer does not comply with this obligation, GBV has the right to charge the recurring fee until further notice.

 

12.6. If the customer's data is on a server operated by GBV, GBV undertakes to make this information inactive and to delete it after 3 years. The right of the customer to keep or receive a copy of the stored data in order to fulfill legal storage obligations remains reserved after prior written notification.

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13. Confidentiality
 

13.1. Both contractual partners, their employees and called-in auxiliary persons mutually undertake to maintain the confidentiality of all documents and information that are not generally known, which relate to the business sphere of the other contractual partner and become accessible to them during the preparation and implementation of this contract.

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13.2. As long as there is a legitimate interest in doing so, this obligation remains in force even after the end of the contractual relationship; but at least 5 years after termination of the contract.

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14. Privacy

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14.1. The contractual partners are aware that the conclusion and fulfillment of this contract will lead to the processing of personal and factual data about the service provider and its employees or factual data of the customer. You agree that GBV collects, saves and evaluates this data or makes evaluations available to the customer in electronic form. The processing, evaluation, maintenance and backup is the exclusive responsibility of GBV.

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14.2. The customer declares that he has informed the service provider about all the details of the GREENBIRD system, in particular about the type of data collection and processing, and that the service provider has given his full consent to this. The customer will indemnify and hold GBV harmless in this regard.

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14.3. GBV undertakes to use data and processing results exclusively within the scope of this contract and to return them exclusively to the customer or to transmit them only after his written order.

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14.4. The customer grants GBV the right to inspect the database and to use the collected data to further optimize and improve the software, while at the same time fully adopting the data protection provisions regulated in this contract.

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14.5. GBV declares that all persons commissioned with data processing were obliged to maintain data secrecy before starting work.

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14.6. The customer grants GBV a reasonable period of time to adapt to changed data protection regulations.

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14.7. For the purpose of agreeing to data processing, the customer and the service provider submit the respective agreement regarding the transfer of data for the purpose of processing as a service in accordance with DSGVO in accordance with ANNEX ./3 and ANNEX ./4.

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14.8. Any liability and/or obligation that goes beyond the legally mandatory provisions of the Data Protection Act DSGVO is mutually excluded.

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15. Prohibition of Compensation

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15.1. An offsetting of claims of the customer against claims of GBV from this contract is excluded, unless these have been determined by a court or recognized in writing.

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15.2. The customer is only entitled to assert a right of retention on the basis of undisputed or legally established counterclaims from this contract.

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16. Governing Law

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16.1. Austrian law applies exclusively to this contract, excluding the reference standards and the provisions of the UN Sales Convention.

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17. Dispute Resolution and Jurisdiction

 

17.1. In the event of differences of opinion in connection with this contract, both contracting parties undertake in good faith to strive for an amicable settlement.

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17.2. If, despite the efforts of the contracting parties, no amicable agreement can be reached, the court responsible for commercial matters for the first district of Vienna is agreed as the exclusive competent court.

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18. Final Provisions

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18.1. The cover sheet, this contract and its appendices regulate the relationships between the contracting parties and replace all negotiations and correspondence conducted prior to the conclusion of the contract. It is expressly stated that no verbal and/or written ancillary agreements have been made.

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18.2. This contract, its appendices, any changes and additions and all ancillary agreements must be in writing to be valid. This formal requirement can only be waived by written agreement.

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18.3. Notifications intended for the exercise of rights and obligations arising from this contract must be sent in writing (by letter or fax/e-mail and subsequent confirmation by letter) to the addresses of the contractual partners given on the cover sheet.

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18.4. The contracting parties are obliged to immediately inform the other contracting party in writing of any change in the data reported at the beginning of the contract.

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18.5. If individual provisions of this contract should be invalid or unenforceable, this does not affect the validity or enforceability of the remaining provisions of this contract. In such a case, the contractual partners will replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the purpose of the provision to be replaced. This applies analogously to an addition to the contract in the event of loopholes.

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18.6. The customer must confirm to GBV annually and at any time upon GBV's justified request that he is still entitled to input tax deduction.

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18.7. This contract or individual rights and obligations arising from it may only

In the event that the ownership (shareholder structure) of the customer or service provider changes directly or indirectly (more than 25%), the customer will inform GBV immediately in writing. In this case, GBV is entitled to immediately discontinue the services assumed under the contract and to terminate the contractual relationship for good cause. This special right of termination can be exercised within four weeks after receipt of the written notification. If the special right of termination is exercised, the legal consequences of termination for good cause apply accordingly. In this case, the customer is not entitled to any kind of claim for damages.

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18.8. The rescission of the contract due to error, change in the business basis or shortening by more than half is excluded.

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18.9. The cover sheet, this contract and all appendices or ancillary agreements are made out in two copies, of which each contractual partner receives one copy.

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