enshift AG ("enshift") operates the internet brokerage platform app.enshift.com("Platform"). Via the Platform, private individuals andcompanies ("Clients") can plan energy-related renovations, newconstructions and conversions of buildings and land ("Projects"),obtain offers for the Projects from cooperating companies ("Developers")and conclude the corresponding Contracts for Work with the Clients. Inaddition, Clients can apply for financing solutions for their Projects via thePlatform.
TheDevelopers offer the Projects in their own name and under their ownresponsibility. enshift itself does not create any Projects, but merelymediates the conclusion of a contract between the Client and one or moreDevelopers for the creation of a Project.
Thesegeneral terms and conditions (the "GTC") govern thecontractual relationship between enshift and the Developer. The GTC must beaccepted by the Developer prior to the Developer's registration on thePlatform. Irrespective of this, the GTC shall be deemed to have been acceptedby the Developer upon the Developer's first use of the Platform.
These GTCsregulate the relationship between enshift and the Developer regarding the useof the Platform.
3. Functionality of the Platform
ThePlatform allows the Client to plan and implement a Project. To do this, hefirst enters the details of the Project via the Platform. To do this, he mustprovide a number of details about the Project, in particular address of thebuildings, energy consumption, building areas, electricity prices, as well asinformation about the building technology. After entering this information, theClient can run a digital simulation (the "Simulation"), inwhich the optimal composition of energy consumption and energy generationtechnologies is calculated. Sometimes energy generation technologies such asphotovoltaics and wind turbines or energy consumption technologies such as heatpumps are simulated. The Simulation also gives the associated installationcosts and the average expected return per building, so that the Client can makean economic analysis of the Project.
After theSimulation has been carried out, the Client can decide whether he wants tocarry out a bidding process regarding the Project. In this case, an agencycontract is established between the Client and enshift. Based on the Projectdescription, the Developers can submit bids to the Client for theimplementation of part or all of the Project. The profiles of the cooperatingDevelopers can be viewed on the Platform. Based on this information, theDeveloper creates an offer for the implementation of a part or the entireProject (the "Offer") and sends the Offer to the Client forthe Platform. If the Client accepts the Offer, a contract for work ("Contractfor Work") is concluded with the Developer. Enshift does not become aparty to the Contract for Work.
4. Duties of the Developer
TheDeveloper undertakes to use the Platform in good faith. The Developer may notexecute Projects with regard to which the Contract for Work has been concludedvia the Platform by circumventing the Platform. When processing Offers andexecuting Projects, the Developer shall strictly comply with all constructionstandards.
For eachContract for Work concluded, a fee ("Brokerage Fee") of 2.5%(excl. VAT) of the remuneration agreed in the Contract for Work is due to enshiftfor the Developer. The Brokerage Fee shall be invoiced by the Developer to theClient in accordance with the milestones and payment terms agreed in theContract for Work. Each invoice from enshift is to be paid by the Developerwithin 30 days.
Since theContract for Work is concluded directly between the Developer and the Client,the collection risk regarding the customer's payment obligations under theContract for Work remains entirely with the Developer. Enshift assumes noobligation to compensate the Developer in the event of a payment default on thepart of the Client.
6. Archiving and storage
It is thesole responsibility of the Developer to archive information about the Projects,Offers as well as concluded Contracts for Work. For this purpose, the Developercan export this data from the Platform for a certain period of time in order tostore it on his own system.
8. Liability and indemnification
Enshiftexcludes its liability (including liability for its auxiliary persons,employees, suppliers and subcontractors) for all claims arising from or inconnection with the Platform (including contractual and non-contractual claims)to the fullest extent permitted by law, in particular for damages due totransmission errors, technical defects, interruptions or malfunctions. Anuninterrupted or error-free operation of the Platform is not guaranteed.
TheDeveloper agrees to indemnify enshift (including its employees andrepresentatives) from all claims (including reasonable attorney's fees andcourt costs) arising from Offers, Projects or Contracts for Work, which aClient asserts against enshift.
Theconclusion of a liability insurance, which has to cover in particular damagesresulting from the execution of the Projects, is exclusively the responsibilityof the Developer.
9. Platform exclusion
If theDeveloper violates these GTCs, violates other contractual obligations, such asthose arising from the Contracts for Work, or uses the Platform contrary togood faith, enshift reserves the right to block the Developer at anytime.
10. Final provisions
Rights andobligations arising from the contract between enshift and the Developer may beassigned and transferred by enshift to a third party at any time. The Developeris only entitled to this right with the written consent of enshift.
Any changeor addition to these GTC agreed upon in individual cases between enshift andthe Developer must be made in writing. This also applies to the abovereservation of written form.
Enshift maychange the GTC at any time. All changes will be communicated to the Developerby email and are effective 30 days after notification. If the Developer doesnot agree with the changes, he can terminate his participation in the Platform.
11. Jurisdiction and applicable law
Subject toa mandatory place of jurisdiction, the courts at the registered office of enshiftin Cham, Canton of Zug, Switzerland, shall have jurisdiction for all questionsarising from or in connection with the GTC or the Platform. Swiss substantivelaw shall apply exclusively.