Delivery Connection: General terms and conditions

Preamble

orderbird GmbH ("orderbird"), with its registered office in Berlin, offers a cloud-based cash register system for catering businesses under the name "orderbird PRO", which can be controlled via mobile end devices from the company "Apple", namely the "iPad" as well as the "iPod" and "iPhone" (hereinafter "APP"). The POS system includes the client application "orderbird PRO" as well as the online platform "MY orderbird", which serves as centralized data storage and is made available to customers as software-as-a-service (hereinafter "SaaS") via the Internet.

In addition, orderbird offers the "Delivery Connection" service. Delivery Connection is a service developed in collaboration with the company Deliverect. This service is aimed at independent restaurants in Germany that use or want to use orderbird checkouts in conjunction with delivery platforms such as Wolt, Lieferando or Uber Eats.

§ 1 - General terms and conditions

The following terms and conditions apply to the provision of the standard software and - if and to the extent agreed - the provision of services such as the adaptation of software for the customer's purposes by orderbird. Adaptation of software within the meaning of this agreement is understood to mean exclusively the adaptation of standard software, but not the individual creation of software. The term "software" in the following includes both standard software and adapted standard software.
The following terms and conditions also apply to orderbird's support of the customer in the maintenance of standard software (hereinafter referred to as "software maintenance").
The offer is aimed exclusively at commercial customers who use orderbird PRO and introduce it into their company in Germany. The software offered is intended for the use of the orderbird PRO POS system in conjunction with the services of Deliverect.
Deviating terms and conditions of the customer do not become part of the contract, unless they are expressly accepted in writing by orderbird. The performance of services by orderbird without objection does not imply acceptance of the customer's terms and conditions.

§ 2 - Subject matter of the contract

The subject of the contract is the provision of the additional application "Delivery Connection". The application enables the customer to link orders via Deliverect with the orderbird PRO POS system.
On the basis of this contract, the customer is granted the right, against payment, to use the cloud-based service "Delivery Connection" for a limited period of time. The prerequisite for use is the use of the orderbird PRO POS system.

§ 3 - Conclusion and term of contract

The presentation of goods and services on the orderbird website does not constitute a legally binding offer, but an invitatio ad offerendum.
After submitting an inquiry via the website, the customer receives all contractual conditions and can subsequently submit a binding offer to orderbird. Immediately after sending the binding offer, the customer receives a confirmation from orderbird, which, however, does not represent acceptance of the contractual offer. A contract is only concluded when orderbird has expressly accepted the customer's binding offer.
The contract is concluded for a period of one month. A month of use is determined by the date of conclusion of the contract. It ends on the day of the following month, the number of which corresponds to the day on which the contract was concluded. If the conclusion of the contract falls on the last day of a month, the usage period also ends with the expiry of the last day of the following month, even if the number is smaller than that of the previous month.
If the contract is not terminated, it shall be automatically renewed each month for a further month.

§ 4 - Termination of contract

The contract may be terminated with four weeks' notice to the end of a month of use.
Both parties are entitled to terminate existing contractual relationships immediately for good cause. An important reason is given if facts exist that make the continuation of a contractual relationship unreasonable for the terminating party.
orderbird is entitled to terminate the contract without notice in particular if the customer is at least four weeks in arrears with a payment despite having been granted a grace period. In addition, orderbird is entitled to terminate the contract for good cause if the customer violates any other essential contractual obligation.
Termination for cause by the customer due to technical problems in the provision of services, which cannot be influenced by orderbird, is excluded.
The termination must be in text form.

§ 5 -Scope and right of use

orderbird grants the customer the simple, limited to the term of the contract, non-exclusive, non-transferable, Germany-wide valid right to use the application ("license"). The License is limited to the use of the Application for the Customer's commercial operations.
The License is divided into a one-time setup fee and individual, staggered usage quotas. The setup fee to be paid in each case as well as the fees for the usage contingents result from the respective offer.
The usage quotas remaining at the end of a usage period expire on the billing date.
The customer is obligated to observe the applicable law when using the application and, in particular, not to violate the rights of third parties.
The customer acknowledges that the application and all its components are the sole property of orderbird. The application or any part thereof may not be reproduced, decompiled, altered, modified or lent, sold, rented or otherwise commercially exploited to third parties without the prior written consent of orderbird. The rights arising from § 69e UrhG remain unaffected. Any documentation and information provided to the customer about the application and its functionality may also not be made available to third parties without the prior written consent of orderbird. Employees of the customer are not considered third parties.

§ 6 - Technical support

In accordance with the service description, orderbird offers various services which, depending on the type of license, are included in the remuneration or can be used additionally against payment of a fee. The permanent support is subject to the following conditions.
The following definitions shall apply with regard to the permanent support:

"Support Contact Person" means up to three employees to be named by Customer who are exclusively authorized to report incidents to Delivery Connection.
"Incident" means a malfunction of the SaaS solution "Delivery Connection" described in clause 2 of this Agreement together with the software components orders.orderbird.com necessary for its use as well as the software component of the software partner Deliverect necessary for its operation (as of July 2022));
"Response times" means the period between receipt of notification of an incident by orderbird and the first response to the customer by callback, e-mail, but also the start of work to rectify the fault;
"Business Hours" means the customary business hours, of which core hours from 09:00 to 18:00 from Monday to Friday are included as a minimum; public holidays existing in the State of Berlin are excluded.
"Working days" means the days Monday through Friday; statutory holidays existing in the State of Berlin are excluded.

3. Incidents shall be categorized as follows:

Category 1 Incident: means that the SaaS Solution described in Clause 2 has come to a standstill in live operation and is unable to process data as a result of a serious malfunction;
Category 2 Incident: means a problem with the SaaS Solution that results in a serious disruption of essential functions and cannot be temporarily remedied, for example by a workaround;
Category 3 Incident: means a problem that is not critical to the basic function of the Software, where the Customer is still able to log in to the system and/or a workaround is possible;
Category 4 incident: refers to inquiries regarding the operation of the software and all other affected, non-response critical issues.
In addition, orderbird provides support in the area of category 4 incidents within the framework of the partnership with the software manufacturer Deliverect and is the first point of contact for forwarding all cases that cannot be resolved by orderbird.

4. orderbird provides support services during business hours with the following response times, beginning with the recording of the support request:

Category 1 support request: maximum four hours;
Category 2 support request: eight hours at the most;
Category 3 support request: no more than 12 hours;
Category 4 support request: until the end of the next business day

Due to the connection to necessary partner systems, external responsibilities may sometimes cause the above response times to be exceeded without fault.

For disruptions for which an external responsible party or other vicarious agent of orderbird is responsible, orderbird does not assume any support services, warranties or other liabilities.

5. The reaction can be a message from the technical staff, but also the elimination of the malfunction. The message must be sent exclusively by a support contact person to the telephone number 030 208 98 30 98 or to the e-mail address [email protected].

§ 7 - Further development

In order to take account of customer requirements and change requests, the ongoing further development of the products and services highlighted in the service description is an integral part of the contract, which necessarily includes an always possible change in the operation of the solution or changes to the services. The foregoing applies insofar as the functionality at least covers the scope that the Delivery Connection included at the time of the conclusion of the contract as shown in the service description stored at https://www.orderbird.com/en/delivery-connection-specification-of-services. orderbird will inform the customer of changes by e-mail.
If the further development requires a restriction or - in very rare exceptional cases - the abandonment of an existing functionality, orderbird will inform the customer of the planned change within a reasonable period of time. If the Delivery Connection with the pre-existing functionality is no longer usable due to the final abandonment, the customer is granted a special right of termination. In this case, he shall be entitled to terminate the contract in text form without observing a notice period. The customer will be informed of this possibility in the changeover notification. The contract shall be continued with the new scope of functions if the customer does not give notice of termination within two weeks of receipt of the changeover notification. The date stated in the changeover notification shall be decisive in this respect.

§ 8 - Remuneration / terms of payment

The amount of remuneration is determined by the individual written contract between orderbird and the customer. An individual offer from orderbird can be requested at any time by e-mail to [email protected] or by telephone on 01 361 022 499. The prices quoted are net prices and do not include VAT.
The one-time setup fee is payable upon conclusion of the contract. The variable, user-dependent costs are then payable at the end of each period of use. The amount owed is either debited from the customer's account after conclusion of the respective contract in accordance with a separate direct debit authorization or is to be transferred by the customer to the orderbird account specified in the offer at the aforementioned time. The customer will receive an electronic invoice for the aforementioned amount.
In the event of non-payment, orderbird reserves the right to temporarily suspend the service until payment has been made in full. The customer may only offset his own claims which are undisputed, acknowledged by orderbird or legally established. These restrictions do not apply if the claim arises from the same contractual relationship as the claim of orderbird against which offsetting is to take place.

§ 9 - Warranty and liability

If orderbird performs a contractual service defectively, the customer can initially only demand subsequent performance free of charge, in particular rectification of the defect. If orderbird does not comply with the supplementary performance or if it fails for other reasons, the customer can reduce the remuneration or terminate the contract under the legal conditions. The customer only has the right of self-execution if the operational safety of the system is endangered and if considerable damage is to be averted.
Liability on the part of orderbird - irrespective of the legal grounds - is otherwise only incurred if the damage
1. has been caused by culpable breach of a material contractual obligation (cardinal obligation) in a manner endangering the achievement of the contractual purpose, or
2. is due to gross negligence or intent.
If orderbird is liable in accordance with 2a) for the breach of a material contractual obligation without gross negligence or intent, liability is limited to the extent of the damage which orderbird typically had to expect at the time of conclusion of the contract on the basis of the circumstances known to orderbird at that time and is limited to 50% of the net invoice amount of the service causing the damage. In all other respects, liability for slight negligence is excluded. This limitation of liability also applies to orderbird's legal representatives, employees, salaried staff and vicarious agents.
Claims for defects arising from this contract are subject to a limitation period of one year, commencing with the respective service performed and completed. The customer must notify orderbird of obvious defects without delay, at the latest within one week. Other defects are to be reported immediately after discovery. The notification must be made in writing. For defects not reported in time, the liability for defects is not applicable.
The parts replaced in fulfillment of this warranty obligation become the property of orderbird upon removal.
Liability regardless of fault, e.g. in accordance with the Product Liability Act, remains unaffected.

§ 10 - Data protection / Confidentiality

The customer and orderbird undertake to treat all information received about the other contracting party in the course of the initiation and execution of the contract as strictly confidential.
The term "information" is to be understood broadly and includes in particular any documents of an electronic nature and in print form, including the terms of the contract, as well as information made known during an oral presentation or discussion. Excluded from the confidentiality obligation is such information which is publicly known or which the customer or orderbird has demonstrably received from third parties without breach of a confidentiality obligation.
The use of the confidential information received only occurs insofar as it is necessary for the fulfillment of the purpose of the contract. Use for other purposes is not permitted unless the respective other party declares its prior written consent.
Any confidential information received from the other contracting party shall be returned by the contracting parties after termination of their services and all remaining copies shall be deleted, unless the respective party is required by law to retain a copy of the information. In this case, the destruction shall take place immediately after the expiry of the statutory retention period.
The parties shall observe the applicable provisions of data protection. Insofar as orderbird's services constitute commissioned data processing pursuant to Art. 28 DSGVO or there is an obligation to conclude an agreement pursuant to Art. 28 (3) DSGVO, the parties shall conclude a commissioned data processing agreement at the same time as the order confirmation.

§ 11 -Reservation of right to change

In the event that significant technical, economic or legal conditions change after the conclusion of the contract, orderbird reserves the right to adjust the content of this contract - with the exception of the main service obligations - insofar as this is reasonable for the customer.
orderbird will notify the customer of the amended contract by e-mail or at my.orderbird.com. At the same time, the customer will be expressly informed that the respective amendment will become the subject of the contract existing between the contracting parties, if the customer does not object to this amendment within a period of four weeks from notification of the amendment by e-mail to [email protected] or in text form.
If the customer objects to the changes in due form and time, the contract remains unchanged. Orderbird then has the right to terminate the contract with a notice period of four weeks, if orderbird cannot reasonably be expected to adhere to the unchanged contract.

§ 12 - Final provisions

Contracts, amendments and supplements to contracts, declarations, notifications and documentation relevant to the contract as well as other legal transactions for which no special statutory written form requirements apply must be in writing unless the parties agree on another additional form. In addition to the forms specified in §§ 126, 126 a, 126 b BGB, declarations by means of an electronic signature (§ 127 BGB) shall also satisfy the written form requirement. This shall also apply to the amendment of a written form clause.
Should individual clauses of this contract be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions.
orderbird is entitled at any time to amend or change these general terms and conditions. orderbird is furthermore entitled at any time to change the range of services and to no longer offer individual or all product components or to offer them under different conditions. The changed conditions will be announced to the customer by orderbird via e-mail or at my.orderbird.com. At the same time, the customer is expressly informed that the respective change will become the subject of the contract existing between the contracting parties, if the customer does not object to this change within a period of four weeks from notification of the change by e-mail to [email protected] or in writing. If the customer objects to the changes in due form and time, the contract remains unchanged. orderbird then has the right to terminate the contract with a notice period of four weeks, if orderbird cannot reasonably be expected to adhere to the unchanged contract.
The place of jurisdiction for all disputes arising from this contract is Berlin.
The law of the Federal Republic of Germany shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Convention - CISG).