Terms of Use
1. General
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Tree.ly GmbH (hereinafter “service provider”) develops and operates a software-based solution for CO 2 certification for sustainable forestry and the trading of CO 2 certificates. For this purpose, digital methods are used to quantify, monitor and certify CO2 emission reductions. This makes the sale of CO 2 certificates more transparent and makes it easier for forestry companies to access the voluntary emissions market. For these purposes, the service provider operates a portal under the domain www.tree.ly. This is a platform provided by the service provider for communication and data exchange between service providers and managers of forest areas (hereinafter “platform”) with a view to the joint implementation of a feasibility study to evaluate a possible project development. To facilitate and automate the exchange of information between the parties in advance of any collaboration, as part of a preliminary study (section 1.2) and during a joint project, as well as during the creation and marketing of the resulting certificates.
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Using the platform, managers of forest areas (e.g. forest owners, forest owners, commissioned managers, etc., hereinafter “managers”) can order further services from the service provider, such as the creation of a preliminary study to determine the suitability of a project area proposed by the manager (hereinafter “preliminary study”) from the service provider (platform and other services under these Terms of Use, including the preliminary study, hereinafter referred to as “Services”).
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These terms of use exclusively and conclusively regulate the use of the services by the operator. The general terms and conditions of the manager do not apply, even if their inclusion has not been expressly objected to.
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By accepting these terms of use, the user acting on the side of the manager acknowledges and warrants that he is duly authorized to effectively represent and bind the manager.]
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The use of the platform as a portal for the exchange of information and data as well as the commissioning of a preliminary study in accordance with these terms of use takes place without compensation. However, if a project contract is not concluded after the preliminary study has been carried out for reasons for which the manager is responsible, the service provider can request reimbursement of expenses.
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For the use of other paid services for certificate creation and marketing that go beyond the platform services offered free of charge, an additional, signed service contract (“project contract”) is required, which regulates all details of the order, including the duration and fees for these additional services.
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These Terms of Use will be updated from time to time. Managers with an active usage contract will be notified by email. If the manager does not object to such changes within six weeks of receipt of the notification, the changes are deemed to have been agreed. The manager will be informed separately about the right to object and the legal consequences of remaining silent in the event of a change to the terms of use.
2. Services of the service provider
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The platform as a cloud-based communication tool for document provision, data storage, application and interface for the purposes of electronic transmission of data and information from the manager as well as their storage and processing by the service provider consists of a web-based application that multiple users can access via a standard Internet browser with personal access data.
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Upon conclusion of the contract for the use of the platform in accordance with Section 10.1 and during the term of the contract, the operator is entitled to the provision and use of the platform in accordance with these terms of use. The service provider sets up one or, depending on the agreement, several user accounts for one or more named employees of the operator (hereinafter “users”) on the platform and provides the operator with all relevant account information and login data during onboarding that is available to the users of the platform Allow the controller to access the web-based application and use the services, e.g. account name and password (hereinafter “Account Information”).
The service provider will
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comply with all directly applicable laws and do not use the information and data of the manager (hereinafter also “manager data”) with fraudulent intent;
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inform the manager immediately if the service provider becomes aware of actual or potential circumstances or incidents that affect the rights and obligations of the manager in accordance with paragraph 3;
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take appropriate precautions against security attacks on the service provider's systems, including appropriate measures to prevent viruses, Trojan horses or other programs and parts of programs that may interrupt or damage software or other functionalities of IT systems;
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inform the Administrator if the Service Provider becomes aware of possible circumstances or incidents that affect the security of the Services, the Account Information, the underlying software or the Platform, whether in connection with the access or use of the Services by the Administrator or on other way; This applies in particular to (i) the unauthorized destruction, loss, alteration of or access to account information, manager data or confidential information of the manager from the platform, or (ii) a violation of the service provider's data security measures.
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The service provider is entitled to revoke a user's authorization or to block access to the services if there is reasonable suspicion that the operator or a user has violated this contract. The manager can avert these measures if he dispels the suspicion by presenting suitable evidence at his own expense. Otherwise, Section 3.1 applies.
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The service provider reserves the right to change, expand or discontinue the portal at any time, in particular to take account of practicality and technical progress or to enable compliance with applicable law. The manager will be informed about changes on the platform.
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The service provider also reserves the right to invoice the manager for the costs of preparing the preliminary study if the latter has commissioned the preliminary study and it comes to a positive result with regard to the suitability of the project area, but the manager nevertheless decides to conclude a project contract rejects.
3. Rights and obligations of the manager
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All account information is individualized and may only be used by the authorized user. The manager and each user are obliged to keep the access data, in particular the password, secret and to only make it accessible to those persons who have been effectively authorized by him to do so. The manager is also responsible for maintaining the confidentiality of employee logins and will instruct his employees accordingly. As soon as the service provider becomes aware of the unauthorized use, it will block the access of the unauthorized user. The Service Provider reserves the right to change a User's login and password; In such a case, the service provider will inform the manager immediately.
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The manager will only use the platform for the purposes specified in section 1 and will carefully and to the best of his knowledge provide the manager data to be transmitted, in particular for a preliminary study, and will not provide any misleading information.
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The manager undertakes to provide the manager data required for the preparation of a preliminary study on time at the beginning of this contract. The manager is aware that delays in participation can lead to time shifts. The manager also undertakes to continuously maintain and maintain its own data inventory.
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The manager is also obliged to ensure that the data provided by him is lawful. In particular, but not exclusively, the manager must ensure that the manager data does not contain any content that is defamatory, hurtful, insulting, threatening, obscene, pornographic, harmful to minors or otherwise unlawful or contrary to morality.
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The manager must immediately notify the service provider in writing of any changes to its users and information (in particular, but not limited to: address, name, telephone number, e-mail, registered office, accounts) as well as the manager data.
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The operator further undertakes not to use any software or other data when uploading files to the service provider's portal that could lead to changes to the physical or logical structure of the network, the software and/or the operating system. The manager will in particular
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refrain from attempting to gain unauthorized access to third party data;
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not to access or use the Services fraudulently or for any purpose other than as expressly permitted by this Agreement, and in particular not to create a competitive Service or copy its features or user interface;
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Not to allow or enable third parties (e.g. suppliers of the Manager or customers of the Manager) to access the Services without the prior express permission of the Service Provider, with the exception of the Manager's affiliates and contractors who are involved in the operation of the Manager and must access, view or in any way use, directly or indirectly, the Services and their results on a need-to-know basis and are subject to confidentiality in accordance with Clause 5;
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take all appropriate precautions against security attacks on the operator's systems (such as the process control system), including appropriate measures to prevent viruses, Trojan horses or other programs and program parts that can interrupt or damage software or other functionalities of IT systems ;
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ensure that the use of the services by the operator does not pose a threat to the security or functionality of the platform, in particular, but not exclusively, not to use the services or access the platform in a way that involves a system of the service provider or an external storage - and could damage, disable, overburden, impair or jeopardize the Hosting System as set out in Section 9;
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to inform the Service Provider immediately if the Administrator becomes aware of actual or potential circumstances or incidents that affect the security of the Services, whether in connection with the Administrator's access to or use of the Services or otherwise.
4. Handling and use of manager data
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The technical details of the procedure for uploading manager data are determined by the service provider and communicated to the manager when using the portal.
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The manager is aware that the provision of the services, in particular the preparation of a preliminary study, requires accurate, comprehensive and meaningful manager data and that the quality of the services depends to a large extent on the quality of the uploaded manager data.
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The Service Provider will immediately inform the Controller of any observations regarding missing data, discrepancies in the data or inadequate quality that prevent the Service Provider from providing the Services.
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After the final expiry of the term of the services, the operator is entitled to request the anonymization of the operator data held by the service provider or within the platform, and the service provider is obliged to carry out this anonymization and confirm it to the operator.
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The manager hereby grants the service provider the right to document, store, archive and process the following manager data in accordance with sections 4.6 and 4.7 below and to pass it on to third parties in order to facilitate the provision of the services:
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Information and files uploaded to the Platform;
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other information, data and images and illustrations that the manager makes available to the service provider via the platform or in another way; and
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all information documenting the services provided during the term of the service, including any preliminary studies.
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If and to the extent that there are copyrights or other intellectual property rights to the manager data in accordance with Section 4.5, the manager assures that he is the owner of the corresponding image rights or usage and disposal rights to the protected works that he makes available to the service provider. The manager hereby grants the service provider the non-exclusive, free-of-charge, irrevocable and sublicensable right to use all such manager data exclusively for the purposes of this contract, including any preliminary study and, if commissioned, the creation of certificates, the sale of certificates and associated marketing measures, in particular to publish the manager data, to make it available for public access and to process it. To the extent that Tree.ly does not use the images and illustrations solely for marketing measures for the operator's certificates, Tree.ly ensures that the images and illustrations do not allow any conclusions to be drawn about the identity of the operator.
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The rights to the manager data granted in Sections 4.5 to 4.6 are granted permanently and thus over the term of the agreement between the service provider and the manager, but with the proviso of anonymization in accordance with Section 4.4 after the expiry of the term of the services.
5. Confidentiality
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The parties mutually undertake to keep secret all confidential information provided by the other party in the course of the negotiation and implementation of this contract. Each party will not make this information available to third parties and will only use it within the scope of the cooperation described above. The transmission of confidential information does not involve the granting of a license without an express agreement to the contrary.
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Confidential information and documents are all information, data, designs, plans, specifications and documents, whether oral, written, electronically stored or in any other form, which are made available to the receiving party as part of the cooperation and any copies made and created thereof Records and documents prepared insofar as these:
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a party has expressly marked it as confidential or
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whose confidentiality has been communicated to the other party or
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which under the given circumstances should be treated as confidential in good faith or whose need for secrecy arises from their subject matter, or
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which must be treated confidentially due to legal regulations (hereinafter “confidential information”)
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The obligation of confidentiality does not apply to information
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which the party already possesses at the time of transfer without any obligation to maintain confidentiality,
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which have already been published at the time mentioned above (including, for example, land register data) or are later published by third parties through no fault of either party,
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which the party lawfully receives from a third party without any obligation of confidentiality,
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which must be disclosed due to legal regulations, or
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which one party has expressly released in accordance with this contract (sections 4 and 9) or by written declaration to the other party.
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The parties will take all appropriate precautions to ensure confidentiality, in particular they will only pass on confidential information to those employees who have to receive this information due to their work within the scope of the cooperation described above and who are obliged to maintain confidentiality to the extent described.
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If, as part of the cooperation described above, it becomes necessary for one of the parties to involve third parties and to pass on confidential information to them, it will first obtain the express written consent of the other party and make appropriate written agreements with the third party that are suitable To ensure compliance with the provisions of this declaration of commitment also by the third party.
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At the request of one party, the other party must hand over all confidential documents, including all copies made thereof, upon termination of the cooperation. Rights of retention cannot be asserted in this respect.
6. Warranty
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The services are provided to the best of our knowledge and belief and to the best of our ability.
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Therefore, the Service Provider makes no representations or warranties, express or implied, with respect to the Services and the Manager assumes no warranties or liability for defects, including but not limited to non-infringement of third party rights. In particular, the service provider does not guarantee that the platform is fail-safe, fault-tolerant, uninterrupted, marketable and error-free or that the services meet the specific needs of the operator or are suitable for a particular purpose.
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Accordingly, any statements or representations about the Services and their respective functionalities in documents other than these Terms of Use constitute technical information only and do not constitute any warranty or representation, express or implied.
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The Service Provider is not liable for any problems arising from the following actions of the Manager: (i) misuse, improper use, unauthorized modification or damage to the Service; (ii) Combining the Service with other programs or devices, unless such combination is authorized by the Service Provider.]
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If the Administrator discovers a non-compliance of the Services with one of the service description(s) defined herein, it must notify the Service Provider immediately. In the event of a non-compliance, the Service Provider will, as the exclusive remedy of the Controller and the sole obligation of the Service Provider, use commercially reasonable efforts to substantially restore the affected functionality of the Services.
7. Liability
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Liability of the service provider - regardless of the legal basis - only arises if the damage
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was caused by culpable violation of one of the cardinal obligations or essential secondary obligations in a way that endangers the achievement of the purpose of the contract or is due to gross negligence or intent on the part of the service provider.
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If the service provider is liable in accordance with Section 7.1.1 for the breach of an essential contractual obligation without there being gross negligence or intent, the liability is limited to the extent of damage that the service provider could typically have expected to arise when the contract was concluded based on the circumstances known to it at that time .
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Section 7.2 applies equally to damages caused by gross negligence or intent by employees of the service provider's representatives who are not its directors or executives.
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Liability for consequential damages, in particular for lost profits or for compensation for damages caused by third parties, is excluded unless the service provider is guilty of intent or gross negligence.
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Claims for damages under the Product Liability Act and for damages resulting from injury to life, body or health remain unaffected by the above liability limitations.
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The service provider is liable for the loss of data and programs and their restoration to the extent stated in Section 8 and only to the extent that this loss could not have been avoided through appropriate precautionary measures, in particular the daily creation of backup copies of all data and programs.
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All limitations and exclusions of liability in this Section 6, subject to Section 7.3, also apply to the benefit of directors, employees, agents, subcontractors, business partners and other persons employed by the Service Provider in the performance of its obligations under this Agreement.
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Any liability claims lapse if the operator intervenes in the sphere of the service provider on his own initiative, modifies it in any way, regardless of the extent to which such modifications take place or have taken place.
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The service provider is not liable for the content posted by the operator, which must at least meet the requirements in paragraphs 3.2 to 3.4. In this respect, the manager indemnifies the service provider from any third-party claims. With regard to the costs of defense, the exemption is limited to the statutory attorney's fees and court fees. Any comparison between the service provider and the claimant is subject to the consent of the manager. The manager will inform the claimant of this.
8. Data Backup
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The service provider does not back up the content posted by the operator or the emails received from the operator; the operator is responsible for any data backup itself.
9. Data Protection
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The service provider stores and processes the controller's personal data in compliance with the applicable legal provisions exclusively to fulfill this contract or only for its own purposes, insofar as this is necessary for business transactions. The personal data received from the operator (such as title, name, address, date of birth, e-mail address, telephone number) are collected exclusively by the operator, processed on the service provider's server and used to the extent necessary for the justification, execution, change or Termination of this contract is necessary. The service provider is entitled to transmit the data to third parties commissioned by it to the extent that this is (i) necessary so that the service provider can fulfill its obligations under this contract or (ii) to the extent that the terms of use expressly provide for this.
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The parties observe the applicable data protection regulations, in particular the obligation of the employees employed to fulfill the service to maintain data secrecy. The parties therefore mutually give their data protection consent as follows:
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Each party hereby expressly consents to the processing of personal data - in particular name, address, contact and professional data - of the persons acting for it and those acting towards the other contracting party for the purpose of fulfilling the contract and fulfilling the relevant accounting legal and due diligence obligations.
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With this consent, each party guarantees the existence of corresponding declarations of consent from the data subjects working on its behalf and shall fully indemnify and hold the other party harmless with regard to all disadvantages and in connection with the violation of the aforementioned assurance upon first request.
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The consent in accordance with sections 9.2.1 and 9.2.2 can be revoked at any time by the manager or the data subjects without giving reasons. Processing that took place in accordance with consent up to the time of revocation will not be affected by a revocation.
10. Term and termination
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This Agreement will come into full force and effect after the Controller has accepted these Terms of Use and the Service Provider has provided the Account Information.
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Either party has the right to terminate this Agreement upon six (6) weeks' notice.
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The right to extraordinary termination for good cause remains unaffected. An important reason for an extraordinary termination of the contract with immediate effect is assumed for the terminating contracting party in particular, but not exclusively, if the other contracting party repeatedly or significantly violates an obligation under the terms of use, such as the use of infringing data from the controller in accordance with paragraph 3.4, and does not permanently remedy this violation within a reasonable period of time set by the terminating contracting party.
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As of the effective date of termination, all of Customer's rights to use the Services under these Terms of Use will expire.
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Termination takes place in writing (email is sufficient).
11. Final provisions
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Changes, additions and terminations of this contract must be made in writing. Any cancellation of this contract or a change to this written form must also be made in writing. No additional agreements were made.
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Austrian law applies , excluding international private law and the UN Convention on Contracts for the International Sale of Goods.
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The place of performance is the headquarters of the service provider.
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The exclusive place of jurisdiction is Dornbirn, Austria .
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If a provision of this contract is or becomes ineffective, this does not affect the validity of the rest of the contract. Instead of the invalid provision, a regulation should apply that comes as close as possible to what the parties wanted, taking economic aspects into account. The same applies if any additions to the agreement become necessary.