License agreement orderbird PRO

Last updated: 8 November 2023

§1 Subject matter of the contract: The subject matter of this contract is the cloud-based hospitality POS system "orderbird", which consists, on the one hand, of a POS application ("software") for the iOS operating system on devices called

"orderbird PRO" and, on the other hand, of an administration and accounting module called "my.orderbird" ("MYorderbird"). The POS application is provided via the Apple App Store; the administration and accounting module is operated on secure servers in Europe and made available as Software as a Service ("SaaS") over the internet. The software is conclusively individualized by its name and by the description of its functions as set out in the Apple App Store. The software is self-explanatory and contains help texts presented as example workflows; a service description is available at http://www.orderbird.com/en/service-description . Further information about the scope and the way the functions work can also be viewed at http://www.orderbird.com . No further documentation is owed.

The POS system is continuously developed further by the provider at its own discretion in order to offer the customer the greatest possible benefit. However, this does not include new developments and adaptations to the specific needs of the licensee (hereinafter: "customizing"). The respective service description is therefore limited to the state of the service at the time of publication. It does not have the character of an assurance or a guarantee.

The provider is permitted to involve subcontractors in fulfilling its contractual obligations, in particular when granting storage space, computing capacity and other cloud services. The use of subcontractors does not release the provider from its obligation to the customer to perform the contract in full.

The exchange of data between the input devices and the POS backend is encrypted. The protocols TLS 1.2 and TLS 1.3 with 2048-bit certificate keys under SHA-2/RSA and SHA-2/ECDSA are used.

§2 Restriction to business customers: In line with the intended purpose of the software, the offering of orderbird GmbH is aimed exclusively at hospitality businesses, other users of POS systems and their suppliers who act in the course of their commercial or self-employed professional activity within the meaning of Section 14 BGB and not for private purposes.

§3 Conclusion of contract: Making the software available via the Apple App Store constitutes an offer by orderbird GmbH to conclude a gift contract, which is accepted when the licensee triggers the download. The contract is completed when the download is completed; the start of the download process at the same time constitutes confirmation of receipt of the customer's declaration. The languages available for concluding and completing the contract are German, English and French;

With the registration and activation of the customer for MYorderbird, the paid usage contract for the administration and accounting module is concluded, incorporating the General Terms and Conditions for orderbird PRO.

The respective contract text is stored by orderbird GmbH and is available to the customer after the contract is concluded at https://www.orderbird.com/en/terms for retrieval.

The obligations arising from Section 312i (1) sentence 1 nos. 1 to 3 and sentence 2 BGB are waived.

§4 Granting of rights of use: orderbird GmbH grants the licensee, by way of gift (orderbird PRO) or for a fee (MyOrderbird), the simple, non-transferable right, unlimited in time and place, to use the software and its functionalities for its own purposes as intended.

Unless otherwise provided, the customer is not entitled to make the software and/or parts of it available to third parties for use. This expressly includes the prohibition on using interfaces provided by the provider for other purposes and/or applications.

In all other respects, no transfer of copyrights, trademarks or other intellectual property rights relating to the software and its results takes place, regardless of whether these have been changed by the customer in any way.

The customer is only permitted to exercise the rights of use insofar as the customer is not in default of payment at that time.

§5 Rights and obligations of the customer: The customer undertakes not to send any content to the POS system whose provision, publication or use infringes applicable law or agreements with third parties. The customer further undertakes not to use the SaaS service provided for any unlawful purposes or purposes that infringe laws, official requirements or the rights of third parties. In addition, the customer is obliged to prevent unauthorized access by third parties to the protected areas of the software by means of suitable precautions. For this purpose the customer will, where necessary, instruct their responsible employees and vicarious agents accordingly.

§6 Warranty and liability: the provider warrants the functions and the availability of the software in accordance with the provisions of this contract, the respective service description and, where applicable, further agreements (service level, support).

The provider offers its services to the best of its knowledge and understanding. The customer is aware, however, that no legally binding warranty can be given for the compatibility of the services that are the subject of the contract with legal provisions, in particular competition or tort law provisions, or for freedom from third-party rights, in particular industrial property rights, trademark, copyright and name rights and personality rights.

Claims by the customer for damages or indemnification, on whatever legal grounds and whether under their own or derived rights, are only justified if they are based on intentional or grossly negligent conduct by the provider's bodies, employees or vicarious agents, or if they concern the breach of guarantees or injury to the life, body or health of persons. This also applies to the breach of pre-contractual obligations, whereby, in the absence of the conditions for liability, a waiver of any claims that may still exist is agreed upon conclusion of this contract.

The provider's liability for consequential damage and indirect damage is excluded in the case of conduct other than intentional conduct and is limited in amount to the ordinary damage to be expected if the damage occurs in Germany, but at most to the total annual remuneration payable by the licensee under this contract. This limitation of liability applies with regard to all claims for damages, regardless of their legal basis.

The provider is not liable for the loss of data insofar as the damage is due to the customer having failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

All claims for damages or other claims that could be asserted against the provider because of the quality or defects of the service become time-barred 6 (in words: six) months after the damage becomes known.

If the customer has made or had made changes to the service that is the subject of the contract, or to its environment, without the provider's consent, all claims of the customer under the above provisions lapse, unless the defect is neither wholly nor partly based on the changes and the remedying of the fault is not made more difficult by the changes.

In the event that services of the provider are used by unauthorized third parties using the customer's access data, the customer is liable for the resulting charges within the scope of civil liability until the customer's request to change the access data or the report of the loss or theft is received, provided that the customer is at fault for the access by the unauthorized third party.

§7 Data protection: orderbird GmbH collects personal data exclusively when a my.orderbird account is created. In this respect the privacy policy of orderbird GmbH applies, which is made available at https://www.orderbird.com/en/privacy . Without the creation of a my.orderbird account, no personal data is collected by orderbird GmbH; the data protection provisions of Apple Inc. as the operator of the App Store must also be observed.

§8 Final provisions: This contract comprises the entire agreement reached between the contracting parties up to the conclusion of the contract with regard to the subject matter of the contract (license). Earlier verbal or written agreements between the contracting parties relating to the subject matter of the contract become void when this contract enters into force. Verbal collateral agreements are invalid. Amendments or additions to the contract must be in writing and must be signed by both contracting parties. This also applies to the waiver of the written form requirement.

The assignment of rights and obligations under this contract and the exercise of rights of retention are only permitted to the customer with the prior written consent of the provider. The contracting parties agree that the aforementioned consent may not be unreasonably withheld. The provisions of Section 354a HGB remain unaffected.

Should individual provisions of this agreement be or become invalid, the validity of the remaining provisions is not affected. The invalid provision is to be replaced by a valid provision that comes as close as possible to the economic purpose of the invalid provision.

If the customer is a merchant, a legal entity under public law or a special fund under public law, Berlin is the place of jurisdiction.

This contract is governed by the law of the Federal Republic of Germany. International private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded.