General terms and conditions of business
1. Preamble
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 affiliated with Greenbird International AG. GBV's business purpose includes, among other things, the distribution, installation, operation, and associated maintenance of the GREENBIRD system.
1.2. Greenbird International AG ("GIA") is a public limited company registered in the Zurich Commercial Register under number CHE-100.713.678, with its registered office in Zurich. GIA's business activities include the development and maintenance of software, including data hosting, as well as related data analysis and data management.
1.3. GIA has developed a system for modern and efficient building cleaning and for improved management of cleaning staff. Based on this, it has created digital cleaning software with the goal of improving cleaning processes and thus increasing cost efficiency. This so-called GREENBIRD system has been filed for trademark and patent protection (PCT/EP2016/076202 and PCT/EP2017/077894).
1.4. GBV is exclusively authorized to distribute, install, operate, and maintain the GREENBIRD system in Austria based on a corresponding license agreement with GIA.
1.5. The customer confirms that he is an entrepreneur within the meaning of the Value Added Tax Act and that he will use the GREENBIRD system exclusively within the scope of his business operations.
1.6. The GREENBIRD system consists of the following components, which are designed to achieve corresponding cost-saving potential in building cleaning and can only be purchased as a whole: sensors for recording environmental data; transmission devices for data transfer; servers for storing the transmitted environmental data; the GREENBIRD software, which creates a cleaning plan at regular intervals from the transmitted environmental data; receivers or apps for mobile 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 awarded a cleaning contract to the service provider.
2.2. The specific scope of the services to be provided by GBV is set out in APPENDIX ./1. GBV undertakes to install the hardware components specified in APPENDIX ./1 at the customer's premises as required, in accordance with APPENDIX ./2 (room schedule/plan).
2.3. The customer undertakes to sign the agreement attached as APPENDIX ./3 in accordance with the GDPR upon conclusion of the contract. The customer also undertakes to obtain the agreement between the service provider and the customer in accordance with the GDPR, attached as APPENDIX ./4, and to submit a copy to GBV within 14 days of signing this contract. The same applies analogously to the declaration of consent for the installation and operation of the GREENBIRD system, attached as APPENDIX ./5.
2.4. The customer expressly consents to GBV collecting, storing, and processing movement data using its own motion sensors. This processing is essential, in particular, for the creation of an up-to-date cleaning schedule. The customer will also ensure that the service provider provides a corresponding declaration of consent.
3. Remuneration and payment terms
3.1. The prices and conditions agreed upon at the time of conclusion of the contract, which were mutually agreed upon in ANNEX ./1, shall apply.
3.2. All agreed prices are net prices and must be transferred by the customer, plus VAT at the statutory rate, to GBV's account. All invoices are due for payment promptly upon receipt without deductions, unless otherwise agreed in APPENDIX ./1.
3.3. Any default interest shall be determined in accordance with the statutory provisions of the Austrian Commercial Code (UGB).
3.4. The prices agreed in ANNEX ./1 are not subject to refund or reduction unless such is provided for by mandatory law.
3.5. Costs associated with changes to hardware and software required due to new legal requirements and regulations, and their implementation, are subject to separate billing in accordance with the prices agreed in APPENDIX ./1. Excluded from this are – where necessary – measures related to the implementation of the General Data Protection Regulation.
4. Value preservation
4.1. For all prices agreed in ANNEX ./1, the value stability is agreed.
4.2. The adjustment will be made in accordance with the results of the Joint Wage and Price Commission on January 1 of each year. It should be noted that the results of the Joint Wage and Price Commission are usually available in the first quarter of each year. Therefore, the price adjustment may be retroactively charged for the first quarter.
4.3. Failure to stipulate value protection does not constitute a waiver of the right to assert the agreed value protection; rather, a waiver of the application of value protection must be in writing.
4.4. In the event of a change in the calculation basis of the Joint Wage and Price Commission or its complete discontinuation, an official or semi-official index number shall be agreed upon as the benchmark for calculating the change in the purchasing power of the euro, replacing the discontinued price setting by the Joint Wage and Price Commission. Should such an index no longer be published at all, a price adjustment mechanism shall be bindingly established for both parties upon request of one of the contracting parties by an expert acting as arbitrator. This price adjustment mechanism reflects the key figures used by the Joint Wage and Price Commission as the basis for its decisions.
5. Warranty in connection with the software
5.1. GBV guarantees the functionality of the software and related services provided under this Agreement.
5.2. A program error subject to warranty exists if the software, when used as intended and under the defined conditions of use and operation, deviates from the promised applications, functions and performance to such an extent that its suitability for the specified use is eliminated or significantly reduced.
5.3. GBV will correct, free of charge, any software errors covered by the warranty in the valid, unmodified version for a period of six months from the date the software or an update is made available to the customer. The customer reports these errors with sufficient documentation within ten business days of their discovery. The documentation is sufficient if it provides evidence of the usage and operating conditions under which a software error occurs.
5.4. GBV's services include, at its discretion, 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 shall provide GBV with reasonable and appropriate support in analyzing the causes and conditions of the program error, as well as in developing and testing the corrective code or workaround.
5.6. If GBV fails to correct reported and documented software errors, rendering the software completely unsuitable for the agreed use, the customer may terminate this agreement immediately after expiration of a grace period of at least 30 days, set by registered letter. GBV cannot guarantee that the software can be used continuously and error-free in all combinations with any data, IT systems, and other programs desired by the customer, nor that the correction of a software error will prevent the occurrence of further software errors.
5.7. GBV is released from its warranty obligation to the extent that a software error is due to circumstances beyond its control, such as, in particular, unauthorized changes to the conditions of use and operation described in the appendix; unauthorized intervention in the program by the customer or third parties; operating errors by the customer or third parties; and influences from systems or programs not supplied by GBV.
5.8. If it emerges that a software error is not GBV's responsibility, or that GBV has incurred additional expenses due to the customer's failure to properly fulfill its duty to cooperate and document, GBV has the right to invoice the customer for the actual costs incurred for analysis and correction of the error, based on the time and materials used.
5.9. GBV is prepared to provide, or have provided, services to maintain the functionality of the software for its intended use after its provision or after expiration of the warranty period for a specific or indefinite period of time, in accordance with the rates, specifications, and conditions of a separate software maintenance contract or based on a special agreement with the customer.
6. Warranty in connection with the hardware components
6.1. The hardware required to operate the GREENBIRD system is owned or controlled exclusively by GBV.
6.2. GBV warrants to the customer that the hardware components will function in accordance with statutory provisions.
6.3. GBV is not liable for defects or damages incurred by the customer or the service provider due to non-compliance with the provided and communicated usage instructions or manufacturer's specifications for the components used. In this case, the customer shall be responsible for the repair at its own expense and for the replacement of the defective components by GBV.
6.4. The repair or replacement of hardware components will be carried out exclusively by GBV or a company commissioned by GBV. A refund or price reduction is mutually excluded. Unless otherwise agreed, damage and/or errors in the hardware will be repaired no earlier than the next business day.
6.5. The customer is obligated to immediately notify GBV in writing of any missing functions or damage or theft of hardware components.
6.6. In the event of malfunctions of the hardware components (without cause or external influence), GBV will, at its own expense, carry out repairs as soon as possible or replace the defective components with new ones.
6.7. In the event of damage to or destruction of hardware components, the customer must first take all reasonable measures to minimize (further) damage to the components. Furthermore, the customer must immediately submit a written damage report to GBV. This also applies to theft. The repair or replacement of the damaged components will be carried out at the customer's expense according to the prices agreed in APPENDIX ./1. In the event of total loss or theft, the customer is obligated to pay GBV compensation per component in the amount of the replacement value according to APPENDIX ./1, less an amortization rate of 10% per year (beginning with the 13th month from the start of the contract).
7. Provisions relating to data processing
7.1. GBV collects, evaluates, and maintains the data under this agreement with the utmost care, reliability, and availability and maintains the appropriate technical equipment. However, beyond the general duty of care, GBV assumes no liability for the uninterrupted accessibility of these services, the availability of the desired connections, or the preservation of stored data 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 themselves, enables access to the software. The username and password are unique and clearly identify the customer to GBV. The customer is therefore obligated to keep the password confidential. The customer is liable for any damages incurred by the customer, GBV, or third parties resulting from the customer's failure to maintain the confidentiality or security of the password.
7.3. Any use of the services for purposes other than those intended entitles GBV to immediately revoke access authorization and to charge for the costs of locating, determining the extent, and repairing the damage to the GBV system and the other affected systems. GBV reserves the right to immediately and without prior warning physically and/or logically disconnect the customer from the network if there is reasonable suspicion that activities emanating from their access points pose a security or operational threat to GBV or other computers. The costs of detecting and tracking the activities, interrupting the connection, and any repairs shall be borne by the customer at GBV's usual hourly rates at the time.
7.4. To maintain and ensure the security and availability of the service, GBV will carry out maintenance work, modifications, or expansions to the infrastructure as necessary. GBV will endeavor to carry out this work outside of normal business hours whenever possible, keep the resulting service interruptions as short as possible, and inform the customer in advance of any outages. Should the urgency of the work to be performed make this impossible, GBV reserves the right to carry out work without prior notification or notification to the customer.
7.5. GBV has the unrestricted right to commission third parties to carry out data processing, provided that the third party operates a market-recognized data processing center, is based in Austria or the European Union, and hosts all data on a data processing system located in Austria or the European Union, and a corresponding data protection declaration has been concluded with this third party. The customer must be informed in writing at least two weeks in advance of GBV's intention to commission such a service provider. If the customer does not object to the planned commission in writing within one week, the named service provider is deemed approved. The customer guarantees to provide GBV with the relevant agreements regarding the transfer of data for the purpose of processing as a service in accordance with the GDPR, both in its own name and as a copy, within a further week.
7.6. If GBV suffers a disadvantage due to non-compliance with these deadlines, the Customer undertakes to indemnify and hold GBV harmless in this regard.
8. Force majeure
8.1. If, due to force majeure, the services cannot be provided or can only be provided partially, the obligation to provide the services shall be suspended or postponed for the duration of the event. GBV's liability is excluded in these cases unless GBV is grossly negligent.
8.2. Events of force majeure include, without limitation, events such as fire, flood, earthquake, storm, lightning, epidemics, war, strikes or other unrest, sabotage, the failure to obtain official or private permits or authorizations, provided that this is not due to a breach of duty or omission on the part of the requesting party, changes in the legal and regulatory situation or at the political level, damage caused by animals (rodents, etc.), as well as all events that are outside the direct business sphere of influence of the affected party.
8.3 GBV will endeavour to minimise the impact of such events as far as technically and economically feasible.
9. Grant of rights
9.1. GBV grants the Customer a non-exclusive right of use of the GREENBIRD system, limited to the term of this Agreement.
9.2. Within the scope of this grant of rights, the customer is entitled to use the GREENBIRD system for the contractually agreed purposes and within this framework during the term of the contract. 9.3. Any use must include a reference to GBV's copyright.
9.4. The customer is not entitled to transfer the GREENBIRD system to a third party without GBV's prior consent, in particular to sell, rent, or lend it to third parties. The customer is obligated to protect the GREENBIRD system from unauthorized access by third parties and must take all necessary organizational and technical measures to this end.
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 agreed upon in this Agreement (e.g., regarding the number of users).
9.6. The customer is obligated to include a reference to the "GREENBIRD System" logo on all communications (invoices, notices, etc.). The customer is granted the non-exclusive, non-transferable, and revocable right to use the "GREENBIRD" logo on its business documents, advertising materials, websites, etc., free of charge for the duration of this agreement.
9.7. The customer grants GBV the perpetual right to disclose the fact that the customer is a user of the GREENBIRD system as a reference in commercial transactions and, for example, to use this information on its website, citing the customer's name and using any logos, word/image trademarks of the customer, free of charge and for an unlimited period of time. The customer undertakes to provide GBV with a corresponding grant of rights from the end customer to be named as a reference customer.
10. Liability
10.1. GBV is liable to the customer in accordance with statutory provisions for all damages resulting from intent or gross negligence in the course of providing its services. GBV's liability for slight and gross negligence, as well as for consequential damages, consequential damages due to defects, or intangible damages (in particular, lost profits, unrealized savings, additional expenses incurred by the customer, as well as compensation for property damage in the case of business damages under the Product Liability Act or third-party claims) is excluded. GBV's liability is limited to the amount of the commercial liability insurance it has taken out.
10.2. GBV shall not be liable if it is prevented from the timely and proper performance of services under this contract for reasons beyond its control. The deadlines scheduled for performance shall be extended in accordance with the duration of the impact of the circumstances beyond GBV's control. GBV shall not be liable for damages or consequential damages to the customer's data and software resulting from unauthorized access by third parties (hacking).
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 power or internet).
10.4. The customer shall indemnify and hold GBV harmless from any claims for damages by third parties.
11. Duration of the contract and termination
11.1. Dieser Vertrag tritt mit dem im Deckblatt vereinbarten Datum in Kraft und wird auf unbestimmte Zeit abgeschlossen, sofern in ANLAGE ./1 keine abweichende Regelung getroffen wurde. Der Kunde verzichtet auf die Ausübung seines ordentlichen Kündigungsrechtes für die Dauer von 3 Kalenderjahren, gerechnet ab dem auf den Vertragsabschluss folgenden Jahresersten, sofern in ANLAGE ./1 keine abweichende Regelung getroffen wurde. Für den Fall, dass seitens des Kunden ein Kündigungsverzicht abgegeben wurde, verlängert sich der Kündigungsverzicht um dieselbe Periode, sofern der Kunde zum Stichtag des Ablaufs des Kündigungsverzichtes diesen Vertrag nicht kündigt.
11.2. Jeder Vertragspartner kann diesen Vertrag unter Einhaltung einer Kündigungsfrist von 3 Monaten jeweils zum 31.12. eines jeden Jahres schriftlich kündigen.
12. Termination of the contract for important reasons
12.1. GBV may terminate this contract with immediate effect and withdraw the rights granted to the customer hereunder or discontinue the agreed services if the customer fails to submit a copy of the service provider's declaration of consent in accordance with APPENDIX ./4 within 14 days of conclusion of the contract or if the service provider revokes this declaration for whatever reason; if the customer seriously breaches this contract, in particular if the customer is at least 30 days late with payment despite a written reminder or continues to violate the provisions of this contract despite a written warning granting a reasonable period of at least 14 days to restore the contractually agreed condition; if the customer continues to fail to treat the provided components carefully or in accordance with the known manufacturer's instructions despite a written reminder from GBV; if the customer becomes insolvent or insolvency proceedings are initiated against its assets or are dismissed due to insufficient assets.
12.2. If GBV exercises its right to immediate termination of the contract for good cause, the customer shall pay two additional monthly fees as a deinstallation fee due to the premature termination of the contract, which is within its sphere of influence.
12.3. Upon expiration of the notice period, the customer's right to use the GREENBIRD system as intended shall expire.
12.4. GBV will uninstall the provided components. If the customer fails to schedule an appointment for uninstallation or refuses access to its premises for uninstallation, GBV reserves the right to invoice the recurring fee until further notice.
12.5. The customer is obligated to cease using the software or to cease using their login credentials after the expiration of the notice period. If the customer fails to comply with this obligation, GBV reserves the right to invoice the recurring fee until further notice.
12.6. To the extent that customer data is stored on a server operated by GBV, GBV undertakes to deactivate this information and delete it after three years. The customer reserves the right, after prior written notification, to retain or receive a copy of the stored data to fulfill statutory retention requirements.
13. Vertraulichkeit
13.1. Both contracting parties, as well as their employees and assistants, undertake to maintain the confidentiality of all documents and information not generally known which relate to the business sphere of the other contracting party and which become accessible to them during the preparation and implementation of this contract.
13.2. This obligation shall remain in effect even after termination of the contractual relationship, as long as there is a legitimate interest in doing so; however, it shall remain in effect for at least five years after termination of the contract.
14. Data protection
14.1. The contracting parties are aware that the conclusion and fulfillment of this contract will result in the processing of personal and factual data relating to the service provider and its employees, or factual data relating to the customer. They agree that GBV may collect, store, and evaluate this data, or provide the customer with evaluations in electronic form. GBV is solely responsible for processing, evaluation, maintenance, and security.
14.2. The Customer declares that it has informed the Service Provider of all details of the GREENBIRD system, in particular regarding the method of data collection and processing, and that the Service Provider has fully agreed to this. The Customer will indemnify and hold GBV harmless in this regard.
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 upon the customer's written order.
14.4. The customer grants GBV the right to inspect the database and to use the collected data for further optimization and improvement of the software, while fully accepting the data protection provisions stipulated in this contract.
14.5. GBV declares that all persons entrusted with data processing were obliged to maintain data confidentiality before commencing their activities.
14.6. The customer grants GBV a reasonable period of time to adapt to changes in data protection regulations.
14.7. For the purpose of consent to data processing, the Customer and the Service Provider shall submit the respective agreement regarding the transfer of data for the purpose of processing as a service in accordance with the GDPR in accordance with ANNEX ./3 and ANNEX ./4.
14.8. Any liability and/or obligation beyond the legally mandatory provisions of the GDPR is mutually excluded.
15. Prohibition of compensation
15.1. Offsetting of claims by the customer against claims by GBV arising from this contract is excluded unless these have been legally established or acknowledged in writing.
15.2. The customer shall only be entitled to assert a right of retention based on undisputed or legally established counterclaims arising from this contract.
16. Applicable law
16.1. This contract shall be governed exclusively by Austrian law, excluding its conflict of law provisions and the provisions of the UN Convention on Contracts for the International Sale of Goods.
17. Dispute resolution and jurisdiction
17.1. Both parties undertake to seek a mutually acceptable solution in good faith in the event of any disagreement arising from this Agreement.
17.2. If, despite the efforts of the contracting parties, no agreement can be reached amicably, the court with jurisdiction in commercial matters for the first district of Vienna shall be agreed upon as the exclusive court of jurisdiction.
18. Final provisions
18.1. The cover sheet, this agreement, and its appendices conclusively govern the relationship between the contracting parties and supersede all negotiations and correspondence conducted prior to the conclusion of the agreement. It is expressly stated that no oral and/or written ancillary agreements have been made.
18.2 This Agreement, its appendices, any amendments and supplements, and all ancillary agreements must be in writing to be valid. This formal requirement may only be waived by written agreement.
18.3. Any notifications intended to exercise rights and obligations under this Agreement shall be sent in writing (by letter or fax/e-mail with subsequent written confirmation) to the addresses of the contracting parties indicated on the cover sheet.
18.4. The contracting parties are obliged to immediately notify the other contracting party in writing of any changes to the data reported at the beginning of the contract.
18.5. Should individual provisions of this Agreement be invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions of this Agreement. In such a case, the contracting parties shall 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 shall apply mutatis mutandis to any amendments to the Agreement in the event of any gaps in the provisions.
18.6. The customer must confirm to GBV annually and at any time upon GBV's justified request that he or she continues to be entitled to deduct input tax.
18.7 This contract or individual rights and obligations arising from it may only
In the event that the ownership structure (shareholder structure) of the customer or service provider changes significantly (more than 25%), either directly or indirectly, the customer shall notify GBV immediately in writing. In this case, GBV is entitled to immediately discontinue the services provided under the contract and to terminate the contractual relationship for good cause. This special right of termination can be exercised within four weeks of 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 claim for damages whatsoever.
18.8. Any challenge to the contract due to error, change of the contractual basis or reduction of more than half is excluded.
18.9 The cover sheet, this Agreement and any appendices or ancillary agreements shall be drawn up in duplicate, one copy of which shall be given to each party.