License agreement orderbrid PRO
License agreement orderbrid PRO
Last update: November 8th, 2023
§1 Subject matter of the contract: The subject matter of this contract is the cloud-based gastronomic POS system “orderbird”, which consists of a POS application (“Software”) for the iOS operating system on end devices with the name
“orderbird PRO” as well as an administration and accounting module called “my.orderbird” (“MYorderbird”). The cash register application is made available via the Apple App Store, the administration and accounting module is operated via secure servers in Europe and made available as Software as a Service (“SaaS”) via the Internet. The software is finally individualized by its name and the functional description as it results from the Apple App Store. The software is self-explanatory and contains help texts in the form of sample processes; a service description is available at https://www.orderbird.com/en/service-description. In addition, more detailed information on the range of functions and functionality can be found at https://www.orderbird.com. No further documentation is owed.
The provider continuously develops the POS system at its own discretion in order to offer the customer the greatest possible benefit. However, this does not include new developments and adaptations to special requirements of the licensee (hereinafter: “customizing”). Therefore, the respective service description is limited to the service status at the time of publication. It does not have the character of an assurance or guarantee.
The Provider is permitted to involve subcontractors to fulfill the contractual obligations, in particular for the provision of storage space, computing capacities and other cloud services. The use of subcontractors shall not release the Provider from its obligation to the Customer to fulfill the contract in full.
Data exchange between the input devices and the POS backend is encrypted. The protocols TLS 1.2 and TLS 1.3 with 2048-bit certificate keys according to SHA-2/RSA and SHA-2/ECDSA are used.
§2 Restriction to entrepreneurs: The offer of orderbird GmbH is aimed exclusively at restaurateurs, other users of POS systems and their suppliers who act in their commercial or independent professional activity within the meaning of § 14 BGB (German Civil Code) and not for private purposes, in accordance with the purpose of the software.
§3 Conclusion of contract: The provision of the software via the Apple App Store constitutes an offer by orderbird GmbH to conclude a donation contract, which is accepted by the Licensee by initiating the download. The contract is executed by the completion of the download; the start of the download process also constitutes confirmation of receipt of the customer’s declaration. The languages available for the conclusion and execution of the contract are German, English and French;
Upon registration and activation of the customer for MYorderbird, the fee-based user contract for the administration and accounting module is concluded, including the General Terms and Conditions for orderbird PRO.
The respective contract text is stored by orderbird GmbH and is available to the customer for retrieval after conclusion of the contract at the address https://www.orderbird.com/en/terms.
The obligations arising from § 312i para. 1 sentence 1 no. 1 to 3 and sentence 2 BGB (German Civil Code) are waived.
§4 Granting of rights of use: orderbird GmbH grants the Licensee the non-exclusive, non-transferable right, unlimited in time and space, to use the software and its functionalities for its own purposes in accordance with their intended use, as a gift (orderbird PRO) or for a fee (MyOrderbird).
Unless otherwise agreed, the customer is not entitled to make the software and/or parts thereof available to third parties for use. This expressly includes the prohibition to use interfaces provided by the Provider for other purposes and/or applications.
A transfer of copyrights, trademarks or other intellectual property rights in relation to the software and its results, irrespective of whether these have been modified by the customer in any way, shall not take place.
The customer is only permitted to exercise the rights of use insofar as the customer is not in arrears with a payment at this 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 violates applicable law or agreements with third parties. The customer further undertakes not to use the SaaS service provided for any unlawful purposes that violate the law, official requirements or the rights of third parties. In addition, the customer is obliged to take suitable precautions to prevent unauthorized access by third parties to the protected areas of the software. To this end, the customer shall, where necessary, instruct its responsible employees and vicarious agents accordingly.
§6 Warranty and liability: The provider guarantees the functions and availability of the software in accordance with the provisions of this contract, the respective service description and any other agreements (service level, support).
The provider offers its services to the best of its knowledge and understanding. However, the customer is aware that no legally binding guarantee can be given for the compatibility of the contractual services with legal provisions, in particular competition or tort law provisions and the freedom from third-party rights, in particular rights arising from industrial property rights, trademark rights, copyrights and rights to a name and personal rights.
Claims for damages or indemnification on the part of the customer, irrespective of the legal grounds and whether based on own or derived rights, are only justified if they are based on intentional or grossly negligent conduct on the part of the bodies, employees or vicarious agents of the provider or if it concerns the breach of guarantees or injury to life, limb or health of persons. This also applies to the breach of pre-contractual obligations, whereby a waiver of any existing claims is agreed upon conclusion of this contract in the absence of the liability requirements.
The liability of the provider for consequential damages and indirect damages is excluded in the case of other than intentional conduct and is limited to the amount of the usual damage to be expected in the event of damage occurring in Germany, but not exceeding the total annual remuneration to be paid by the licensee under this contract. This limitation of liability applies to all claims for damages, irrespective of their legal basis.
The Provider shall not be liable for the loss of data insofar as the damage is due to the fact that the Customer has 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 due to the quality or defects of the service shall become time-barred six (6) months after knowledge of the damage.
If the customer has made changes or had changes made to the contractual service or its environment without the consent of the provider, all claims of the customer under the above provisions shall lapse unless the defect is neither wholly nor partially due to the changes and the rectification of the defect is not made more difficult by the changes.
In the event that the provider’s services are used by unauthorized third parties using the customer’s access data, the customer shall be liable for any fees incurred as a result within the scope of civil law liability until receipt of the customer’s order to change the access data or notification of the loss or theft, provided that the customer is at fault for the unauthorized third party’s access.
§8 Final provisions: This contract comprises the entire agreement made 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 with regard to the subject matter of the contract shall become invalid when this contract comes into force. Verbal collateral agreements are invalid. Amendments or additions to the contract must be made in writing and must be signed by both contracting parties. This also applies to the waiver of the written form requirement.
The customer may only assign rights and obligations arising from this contract and exercise rights of retention with the prior written consent of the provider. The contracting parties agree that the aforementioned consent may not be unreasonably withheld. The provisions of § 354 a HGB remain unaffected by this.
Should individual provisions of this agreement be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall 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, the place of jurisdiction shall be Berlin.
This contract is subject to the law of the Federal Republic of Germany. Private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded.