General Terms and Conditions of Licence and Service
of January 13th, 2021
Provided that greenmatch AG, Greifengasse 1, 4058 Basel, Switzerland (the “Licensor”) will accept your request, the following General Terms and Conditions of Licence and Service shall apply to the use of the Platform available under the domain name of www.greenmatch.ch.
Definitions
“Consultancy Services”: refers to any support services agreed by the Parties in relation to the Licensee’s individual or project-specific problems beyond product training and product support, with or in connection with the Platform.
“Best Efforts”: refers to efforts which may reasonably be expected of the Licensee according to industry standards.
“Documentation”: includes an overview of the features available, is regularly updated, and available from www.greenmatch.ch.
“greenmatch IP”: as defined in para. (24).
“Guest Account”: with a Guest Account, access of the Licensee to the Platform is reduced to a “read only” access to limited functions.
“Licence”: definition according to para. (1) below.
“Licensor”: the Licensor is greenmatch AG, Greifengasse 1, 4058 Basel, Switzerland.
“Licence Fees”: the Licence Fees applicable to the package selected by the Licensee.
“Licensee”: the applicant is referred to as Licensee.
“Licence Period”: refers to the License Period agreed upon by the Parties pursuant to the package chosen by the Licensee. If the Parties do not agree on a specific License Period, it shall be 12 (twelve) months.
“Scope of Licence”: the Scope of Licence shall depend on the package selected by the Licensee.
“Platform”: the Licensor operates a web-based platform for the financial structuring and assessment, distribution, and long-term asset management of renewable-energy power plants. The Licensee may, by way of an Internet portal accessible under the domain name of www.greenmatch.ch, send encrypted data to the Platform and will, thereupon, receive the calculated results, sent back in encrypted form, via the Internet.
“Product Training”: Product Training means an introduction from Licensor to Licensee on how to use the Platform.
“Product Support”: Product Support refers to the standardized support in the event of functional problems and malfunctions of the Platform. Product Support does not include Product Training or Consultancy Services.
“Support Services”: refers to Product Training, Product Support, and Consultancy Services.
“Service Credit”: as defined in para. (11).
“Test Account”: with a Test Account, the Licensee may test the scope of functions for the Test Period pursuant to para. (1).
“Trial Period”: definition pursuant to para. (1).
“Agreement”: Agreement refers to the Licensee’s request via the form available on the Licensor’s website, the Licensor’s acceptance via e-mail, and the present General Terms and Conditions of Licence and Service (incl. the references to links contained therein).
“Confidential Information”: definition pursuant to para. (28).
Use of the Platform
The Licensor grants the Licensee for a trial period of 10 (ten) days (the “Trial Period”) and – provided the Licensee has paid the fees invoiced for the prolongation of the contractual period after the Trial Period – for the period paid for (the “Licence Period”) the non-exclusive, limited, non-assignable, and non-sublicensable right to use the Platform in the applicable Scope of License and the concomitant documentation at the conditions listed below (the “Licence”). If the Licensee will not register for a scope of services with costs before the expiry of the Trial Period, the account will automatically be changed into a free Guest Account. During the Trial Period, the Licensee shall be given the opportunity to test the Platform and get to know the licensed scope of functions. During the Trial Period and for registered Licensees with a Guest Account, the License shall be limited to test purposes, and any commercial use shall be excluded. Exceptions are the content and information shared by other users by way of the “Shared Project” function (subject to any rights of third parties relating to the uploaded content). Without the express consent of the Licensor in writing, the License may only be used for the Licensee’s own business purposes (i.e. neither commissioned by, nor in the interest of a third party).
The Licensor reserves the right to update or modify the Platform during the life of this Agreement. The Licensor shall inform the Licensee in due time of any such updates. Subject to an urgent remedying of malfunctions and bugs (bug fix) at all times without notice. The Licence includes any improvements of the Platform which will be published during the life of this Agreement for the package selected by the Licensee. The Licensor shall not be obliged to make any improvement to the Platform.
The use of the Platform shall not exceed the agreed Scope of the Licence. The Licensee shall have to register all users with the Licensor before each use. These accounts are personal and non-transferable. No announcement of the login credentials (user name and password) to third parties (incl. subcontractors) shall be permitted. In case of a violation, the Licensor may terminate the Agreement without notice pursuant to para. (37).
The results obtained from the Platform may, without prior consent by the Licensor, exclusively be disclosed in the following variants:
with the “Export” or “Reporting” functions provided or the “Print” function built into the browser as unaltered paper print or unaltered PDF document, naming the Licensor and retaining the complete design. Retaining the overall design may be foregone in case of unformatted Export and Reporting functions (e.g. CSV or JSON Export).
as unaltered partial components such as graphics, lists, tables, key performance figures, and overviews naming the Licensor and retaining the design, whereby an attribution to the project condition associated with the partial components shall have to be guaranteed.
As “Shared Project” with the dedicated function.
- If the results are summarized for third parties or only partially quoted (e.g. as a graph), the source shall have to be clearly and visibly stated and the reference “by greenmatch” added.
- The Licensee shall be responsible for any contents (inputs) and may, in communicating with third parties and using the results according to para. (5), in no case imply that the Licensor has influenced in any form said contents, provided consultancy, or will assume any liability whatsoever.
- If results are shared with third parties, the Licensee itself shall expressly be responsible of entering into a confidentiality agreement or other contractual arrangements with such third parties.
The Licensee hereby assures the Licensor that any contents posted on or uploaded to the Platform are lawful and will not infringe the rights of third parties (in particular but not limited to intellectual property rights, non-disclosure agreements, trade secrets, data-privacy, and personal rights) or otherwise violate any laws or regulatory provisions. The Licensor is not obligated to actively monitor the Licensee’s contents. If the Licensor should be notified by a person affected by allegedly unlawful content made available on the Platform by the Licensee, the Licensor may partially or completely block access to the Licensee’s contents at its own discretion. The Licensee shall defend, indemnify, and hold the Licensor harmless against any claims, actions, liabilities, costs and expenses by third parties arising from or related to any content uploaded by the Licensee to the Platform.
Support Services
The Licensor provides Support Services to the Licensee in accordance with the conditions listed below.
The proper use of the Platform requires expert and subject-specific financing knowledge. The Licensee confirms to accompany or execute transactions regarding renewable-energy power plants or be an operator of same as a professional investor, project developer, project seller, bank, or consultant. For this purpose, the Licensee will use the Platform. For a proper introduction of registered users, a basic course in accordance with the Licensor’s training programme (Product Training) is recommended. Product Training as well as additional support services shall be subject to an additional agreement between the Parties.
Unless otherwise agreed in writing by the Parties, Support Services (Product Support, Product Training, Development and Consultancy Services) shall be invoiced at an hourly rate of EUR 260.00. Product Support and Product Training may be contractually agreed in the form of quotas (the “Service Credit”). Each monthly Service Credit will expire upon the end of each month. Service credits not used in one month shall not be transferable to the next months. Consultancy and development services are not included. Consultancy services in relation to the Licensee’s projects require a written agreement in each case that refers to the specific details of the project. Legal and tax advice, auditing, technical reports, or similar auditing and consultancy services by the Licensor shall be excluded in any case. Development services require a written agreement in any case if they commit the Licensee to a specific roadmap. In any case, the Licensor may refuse to provide services to the Licensee at its sole discretion (even if agreed in the form of a service credit). In any event, the Licensor may refuse to render Support Services to the Licensee (even if they have been agreed in the form of a Service Credit), at its sole discretion.
Support Services by the Licensor will be handled upon prior appointment by telephone, e-mail, web session, or – if necessary – on site. Unless otherwise agreed in writing, Support Services will only be offered Monday through Friday, from 09:00 till 12:00 and 14:00 till 17:00 CET with the exception of official holidays in Switzerland. For on-site visits, travel time from the Licensor’s headquarters shall be considered working time. Any travel expenses incurred will be billed to the Licensee. The Licensor offers no hot-line function which is available at all times. Requests for Support Services are preferably to be made by way of e-mails to support@greenmatch.ch.
The Licensor and certified partners of the Licensor moreover have the exclusive right to provide Support Services directly relating to the application and use of the Platform. The Licensee may not mandate another provider in this field without prior written permission.
The Licensor shall be free to mandate partner companies as subcontractors or assistants for Support Services.
Licensor provides its Support Services on a Best Efforts basis. A particular success shall not be owed. No specific resolution time shall be guaranteed. Licensor disclaims any and all warranties to the fullest extent permitted by law.
Licence Fees and Terms of Payment
The use of the Platform during the Trial Period shall be free of charge.
The Licensee shall pay the Licence Fees applicable to the agreed Scope of Licence in advance, at the beginning of a Licence Period. In case of an unauthorized disclosure of the login credentials of a registered user to third parties in accordance with para. (3), the Licence Fee shall automatically be increased to take into account this additional (unauthorized) user.
Fees for Support Services shall, unless otherwise agreed by the Parties, be payable on a monthly basis. The Licensor reserves the right to require payment in advance.
Unless otherwise agreed, invoices are to be paid to the Licensor within 10 days from the date of invoice. Any settlement of possible claims by the Licensee against the aforementioned fees shall be excluded. Upon expiry of the aforementioned ten-day period, the Licensee will automatically be in default (without formal reminder). The Licensor reserves the right to block access to the Platform until receipt of payment. Such blocking shall not relieve the Licensee of its obligations, in particular not that of paying any License Fees already due. The interest on arrears shall be 5% p.a.
All fees mentioned in this Agreement are exclusive of any applicable taxes (e.g. VAT), duties, or other charges, which may be either directly or indirectly levied due to the Licences granted and/or the provision of services.
Warranty
The Licensor warrants to Licensee that the Platform will work substantially as described in the documentation, provided the Licensee uses a proven and current browser version (Google Chrome recomended) and has a sufficiently fast Internet connection; its error and/or bug-free operation can, however, not be guaranteed. The Platform may not be available or access may be limited due to maintenance work, though said maintenance work shall, whenever possible, only be performed onweekends. The Licensor does not warrant or represent that the content and any information available on or through the Platform (including any third party content) will be correct, accurate, or otherwise reliable. In addition, the Licensor does not warrant that the service or results can be used for a specific purpose. In particular, the Licensor makes no warranty as to the results. It shall be the responsibility of the Licensee to critically scrutinize the results of the Platform and take into account project, asset, technical, and country-specific features in their interpretation. The Platform is generically designed with respect to the input mask to allow a broad range of applications in terms of renewable forms of energy, country specifics (e.g. remuneration schemes and taxes) and transaction specifics (e.g. transactions in a construction or operating phase, a purchase of shares and assets). Country specifics are explicitly not considered, in particularly as to taxation. The generic scope of application requires user experience, which is covered in the training programme of the Licensor. The Licensee moreover also acknowledges that the functionalities of the Platform may change during the life of this Agreement.
If the Platform should not work as described in para. (20)f., the Licensee shall solely be entitled to demand rectification. In particular, the Licensee shall not be entitled to withdraw from the present Agreement, extraordinarily terminate it, reduce the Licence Fees or, subject to mandatory law, demand compensation. Immediately after having become aware of it and applying due diligence, the Licensee shall have to notify the Licensor of any such defect in writing. Should the Licensor, even after serious attempts at remedying it, not be able to remedy the defect or malfunction, both Parties shall be entitled to terminate this Agreement effective immediately. In this case, the share of the already paid License Fees for the period in which the Platform cannot or could not be used shall be refunded to the Licensee.
Subject to the aforementioned representations and warranties indicated in this Agreement, Licensor disclaims any and all other warranties or representations to the fullest extent permitted by law.
Additional Obligations of the Licensee
The Licensee shall take suitable precautions to ensure that all persons who are allowed access to the Platform by it under this Agreement shall comply with the obligations of this Agreement. In particular, the Licensee shall ensure that the access data shall not be passed on to third parties.
Intellectual Property Rights
The Licensee expressly acknowledges the intellectual property rights and, in particular, the copyrights, name and any possible design and trademark rights of the Licensor in the Platform (especially in the programs on which it is based, the appearance, the graphical user interface, and all contents) as well as in the results of the Platform and trade names and logos of the Licensor (hereinafter called “greenmatch IP”).
The Licensee may neither itself register intellectual property rights identical with, similar to, and/or detrimental to greenmatch IP, nor have such a registration supported or executed by third parties. If such an application for registration should be submitted or has been submitted with support by the Licensee, the Licensee shall – on request by the Licensor – have to refrain from using any such source codes, trade names, symbols, brochures, or designs, and withdraw any such registration or a respective application, or transfer already registered rights to the Licensor without any compensation. In addition, the Licensee shall have to indemnify the Licensor for all costs and expenses (including reasonable attorney’s fees), incurred in connection with the registration or the attempt of such a registration initiated by the Licensee. To the extent permitted by law, the Licensee shall moreover engage, even beyond the life of this Agreement, to refrain from imitating or replicating the Platform, its mode of operation, structure, surface, and design in any way whatsoever. In the event that the Licensee should copy the Platform, its operations, structure, user interface, or design, it shall hereby assign all rights in this copied version to the Licensor without any compensation whatsoever. In the event that such an assignment in accordance with the applicable law shall not be admissible, the Licensee hereby grants the Licensor a perpetual, exclusive, worldwide, irrevocable, sublicensable, transferable, and free right to use, exploit, reproduce, modify, edit, and develop the copied version.
The Licensee retains all rights to the data and content it uploads to the Platform (“Own Data”). The Licensee hereby grants the Licensor the non-exclusive, worldwide, and free right to save, display, reproduce, transfer, forward, edit, and use the Own Data, however only to the extent necessary to maintain the range of functions of the Platform in favour of the Licensee. Upon termination of this Agreement, the aforementioned right shall expire. In the event that the Licensee shares its Own Data with third parties as part of Shared Projects, the Licensee hereby grants the Licensor the irrevocable, nonexclusive, worldwide, and free right to save, display, reproduce, transfer, edit, and use the Own Data, however only to the extent necessary to maintain the range of functions of the Platform in favour of the Licensee or third parties authorized by Licensee respectively. The aforementioned right shall moreover remain valid upon termination of the Agreement, provided such Own Data shall remain available to authorized third parties within the scope of Shared Projects or are used by them respectively.
Confidentiality and Data Protection
The Licensor takes the issue of data protection and confidentiality seriously and, therefore, adheres to the applicable data-protection regulations (including any revisions). Personal Data shall be processed in accordance with all applicable data protection laws and the Data Privacy Statement available at www.greenmatch.ch/en/privacy-policy. The Licensee expressly declares its consent that personal data will be collected, processed, and used for the purpose detailed in the Data Privacy Statement. The Licensee can revoke its consent at any time without any adverse consequences. In the event of revocation, the Licensee’s personal data will be deleted upon receipt of the notice.
The Parties expressly agree to treat the contents of this Agreement and any know-how of the Parties thereto as well as all other proprietary information (“Confidential Information”) one of the Parties may have obtained within the scope of the execution of this Agreement, either directly or indirectly, in writing, orally, electronically, or in any other manner as confidential. Confidential Information shall in particular include data uploaded by the Licensee to the Platform as well as the functions of the Platform. Information shall not be considered to be confidential if it
is common knowledge, or has been lawfully disclosed by a third party,
was publicly known or shall be so without violating this Agreement, or because the information becomes or became known due to a violation of the obligation to keep secrecy by the other Party,
was lawfully disclosed by a third party to one of the Parties, or
was already lawfully and without being subject to an obligation to keep secrecy known to the Parties before this Agreement.
Each Party shall treat any Confidential Information as strictly confidential and secret and refrain from disclosing it to any third party or make it available in any other manner. Excluded shall be a notification
of consultants and the hosting provider in accordance with para.(14), who shall need said information for the purposes of this Agreement and who are subject to an obligation to maintain confidentiality that is at least equally as stringent as the present one.
insofar as applicable, mandatory statutory provisions require such notifications, with all reasonable steps to limit such disclosure and ensure confidential treatment to be taken.
Each Party shall take all reasonable precautions to protect the Confidential Information of the other Party and avoid any dissemination of such information (e.g. by instructing its employees or data backups). These precautionary measures shall at least correspond to those with which it protects its own Confidential Information, with the necessary and usual minimum standard of care for the business activities of the Parties to be maintained in any case.
Each Party shall immediately notify the other Party, if it becomes aware of an unauthorized use or disclosure of Confidential Information or if it has reasonable grounds to assume that such an unauthorized use or disclosure has occurred.
At the written request of the disclosing Party, the receiving Party shall immediately have to destroy or return any and all written, electronic, or otherwise archived documents, files, and copies thereof, which contain Confidential Information, including memoranda, notes, and other documents based on or containing Confidential Information. This does expressly not apply to Confidential Information, which was shared by way of the Platform in the form of projects with the help of the “Project Share” function. At the written request of the disclosing Party, the receiving Party shall have to confirm the destruction of any and all Confidential Information in accordance with this clause. Irrespective of this, the receiving Party shall be released from its obligation to destroy or return Confidential Information to the extent that it shall be obligated to store such information because of mandatory legal requirements (such as the obligation to keep business records).
The obligations to maintain confidentiality pursuant to para. 27f. (Confidentiality and Data Protection) shall remain in force even after the expiry or termination of this Agreement, for as long as said Confidential Information shall not be a matter of common knowledge or have been destroyed or returned respectively.
Life and Termination of the Agreement
This Agreement shall be in force from the registration by the Licensee on the Platform and be valid for the fixed duration of the Trial Period. If the Licensee does not accept a contractual offer after this trial period, the Licensee’s Test Account will be converted into a Guest Account. If the Licensee accepts a contractual offer, the Agreement shall apply for the Licence Period in the sense of a fixed duration. The Agreement may be terminated in writing with 30 days’ notice to the end of a Licence Period by both parties. If it is not terminated by either Party, it shall be automatically extended by one Licence Period. The Licensor has the right to terminate the Guest Account at any time effective immediately.
In the event of a substantial violation of this Agreement by one of the Parties thereto, the other Party may terminate this Agreement without notice and effective immediately. If the Licensee shall not pay the fees within 20 days upon the issuance of the respective invoice, this shall constitute a fundamental breach of the Agreement.
Upon the termination of this Agreement,
all Licence and other rights, which the Licensee was granted under this Agreement, shall automatically expire, and
the Licensee shall immediately refrain from any further use of the Platform as well as any greenmatch IP. However, the Licensee shall expressly be allowed to continue using the results of the Platform obtained during the life of this Agreement under the Terms of Service of this Agreement. The Licensee itself shall be responsible for archiving the respective results in a suitable manner. The Licensor shall be free to delete any corresponding data of the Licensee’s, irrevocably and without prior notice, upon such a termination of the Agreement.
Provisions of this Agreement which, as to their meaning or contents, shall have to remain in force even after the expiry or termination of this Agreement in order to accomplish the intended purpose, shall remain in force after the termination of this Agreement (in particular paras. (5) ff. (27) to (33) and para. (38)ff.
Liability and Indemnification
The Licensor shall only be liable for damage caused to the Licensee by intent or gross negligence. For direct or indirect damage caused by slight negligence, any (contractual and tortious) liability of the Licensor shall be excluded to the extent permitted by law. In particular, the Licensor shall not be liable in the event of loss of the Licensee’s data.
In particular, the Licensor shall not be liable for the Platform or its content (including any third party content) and, in particular, its results being suitable for the purposes of the Licensee. The Licensor shall also not be held liable for any contents that may be accessed via the Platform.
Furthermore, the Licensor shall have no liability for services that are mediated as external services of other service providers.
To the extent permitted by law, the Licensor shall have no liability or duty to indemnify the Licensee from any third party claim alleging that the use of the Platform infringes any intellectual property rights.
Force Majeure
Neither Party shall be liable to the other Party for damages of any kind, provided the damage was caused, partially or wholly, directly or indirectly, by circumstances outside its control, such as, e.g., fire, floods, or other natural disasters, national strikes, government measures, embargoes, or downtimes of the communications structure, provided the affected Party shall notify the other Party in writing of such an event of force majeure within reasonable time.
If services should, due to force majeure, be lacking for a period of more than sixty (60) days, each of the Parties may terminate this Agreement effective immediately.
Miscellaneous
This Agreement (including any annexes) shall replace any oral agreements entered into to date between the Parties in the present context. Pre-existing, written agreements between the Parties shall however not be affected by this Agreement. In the event of a conflict between the provisions of this Agreement and the Licensee’s General Terms and Conditions, the Terms and Conditions of this Agreement shall prevail.
By accepting the present General Terms and Condition of Licence and Service, the Licensee confirms having received and read the annexes to it and to accept them, too.
The Licensor shall be entitled to name the Licensee as a reference customer to third parties by name and via social media (LinkedIn or similar) and using the logos or a linking of the Licensee. The Licensee may request a respective non-disclosure in writing at any time.
If any provision of this Agreement should be or become invalid or if the Agreement should contain an omission, the validity of the remaining provisions shall remain unaffected. Instead of the invalid provision, a valid provision that comes closest to the one economically intended by the Parties shall be deemed agreed. The same applies in the case of an omission.
All modifications and/or amendments to this Agreement shall be in writing. This also applies to the amendment or cancellation of this requirement to use the written form.
Without prior written consent by the other Party, any rights arising from this Agreement may not be assigned, with the exception of a transfer of this Agreement or the rights thereof by the Licensor to a subsidiary, affiliate, holding, or group company.
Applicable Law and Venue
This Agreement shall exclusively be governed by Swiss Law, to the exclusion of the Swiss Federal Act on Private International Law and to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The courts at the Licensor’s registered office or, at the Licensor’s choice, at the Licensee’s registered office shall have exclusive jurisdiction with regard to any dispute arising out of or in connection with this Agreement.
