General Terms and Conditions for orderbird PRO
Last updated: September 2017
Preamble
orderbird GmbH ("orderbird"), based in Berlin, offers a cloud-based POS system for the hospitality industry. Alongside the separately provided service description of the various products and services, this contract forms the basis for the future cooperation between the customer and orderbird.
1. Restriction to business customers
The entire offering 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 and not for private purposes. The hardware offered is intended for use with our POS system and serves as an accessory that is not intended for private use. To ensure that our customers use it in this sense, we verify business status as part of order processing. The contract is concluded subject to this check being positive.
2. Subject matter of the contract
(1) Under this contract, the customer is granted the paid right to use the cloud-based hospitality POS system "orderbird" for a limited period. The POS system consists, on the one hand, of a POS application on devices called "orderbird POS" and, on the other hand, of an administration and accounting module called "my.orderbird". In addition, orderbird offers the customer various services as well as hardware for purchase. The specific scope of services owed by orderbird is determined equally by the service description and by the product type selected, as agreed under Section 3 of this contract.
(2) Use of the POS system requires the installation of the client application "orderbird POS" from the App Store of the provider Apple on a device running the "iOS" operating system of the same provider. With regard to the granting of simple and free rights of use relating to this software, reference is made to the license agreement available there. The minimum system requirements can be found in the service description named above. Insofar as the client application "orderbird POS" can also be used without the customer registering for the administration and accounting module described below, this is done solely on the basis of the license agreement that the App Store of the provider Apple makes a condition of installation, and is not the subject of this contract.
(3) The administration and accounting module "my.orderbird" is provided as a SaaS solution ("Software-as-a-Service"); this contract therefore does not establish any copyright rights of use for the customer, with the exception of the above authorization to install and use the "orderbird POS" app. The term "license" used below and in the service description for various product versions is therefore not to be understood in the copyright sense, but as a factual right to use the hospitality POS system as a whole, in the sense of making use of a service.
(4) The hospitality POS system "orderbird" supports the recording of booking transactions using up to nine devices – or more by individual agreement – on which the client software "orderbird POS" is installed, with the entirety of the devices being referred to between the parties as a "swarm". This contract governs the right to use the POS system with a single device and with several devices in a swarm alike.
(5) The hospitality POS system "orderbird" generally requires an existing internet connection.
(6) The POS system is subject to continuous improvement and extension; see Section 4 for details. It is therefore recommended that the contractual terms, including the current service description, be saved or printed out when the contract is concluded.
3. Product versions
The customer can choose between various product versions, described in more detail in the service description referred to in Section 2. In this respect the following applies:
a) Paid versions
(1) Device license
Under the designation "device license", the customer is granted the paid right to full use of the subject matter of the contract described in Section 2 for one device per device license, at the customer's choice for a period of one month, one year, three years or ten years (the latter referred to as "Lifetime", based on a customary useful life of a POS system of no more than ten years with a depreciation period of eight years). A device license can only be purchased in combination with a service flat rate whose term is at least as long as that of the device license.
(2) Service flat rate
Under the designation "service flat rate", the customer is granted the option of continuously storing tax-relevant POS data as well as all configurations in my.orderbird. In addition, the customer is provided with support within the meaning of Section 6 and in accordance with the service description. At the customer's choice, the service flat rate can be purchased for a period of one month, one year, three years or ten years (the latter referred to as "Lifetime", based on a customary useful life of a POS system of no more than ten years with a depreciation period of eight years). It does not depend on the purchase of a device license.
(3) To ensure that the procedure complies with the principles for the proper keeping and retention of books, records and documents in electronic form and for data access (GoBD), the customer must ensure that all devices operated by the customer are connected to the system backend of "my.orderbird" over the internet by means of the client software "orderbird POS" installed on them, within the first week after the conclusion of this contract, so that the managed data can be reconciled.
b) Free version
(1) With the free product version, the customer is granted the free option to use the subject matter of the contract described in Section 2, which is reduced in scope compared with the paid versions. For details, reference is made to the separately provided service description. The use of several devices in a swarm and the provision of the support services named in Section 6 of this contract are expressly not covered by the scope of the free version. orderbird reserves the right, giving reasonable consideration to the customer's interests, to extend, reduce, discontinue or offer this option for a fee at any time and without stating a specific reason. As far as possible and reasonable, orderbird will announce a discontinuation to the customer with reasonable notice by email or at my.orderbird.com.
(2) Use of this offer requires the customer to register as part of the online offering at "my.orderbird.com" and the installation of the client software "orderbird POS" from the App Store of the provider Apple, together with the conclusion of the associated rights-of-use agreement with orderbird.
(3) At any time, the customer can send an email to [email protected] or call +49 30 208 983 099 to purchase, for a fee, the right to use the full product versions.
4. Further development
(1) In order to take account of customers' requirements and change requests, the continuous further development of the products and services highlighted in the service description is part of the contract, which necessarily includes that the operation of the solution or the services may change at any time. The foregoing applies provided that the functionality covers at least the scope that my.orderbird covered at the time the contract was concluded, as set out in the service description available at "orderbird.com/en/service-description". The manufacturer will inform the customer of changes by email.
(2) If the further development entails a restriction or, in very rare exceptional cases, the abandonment of an existing functionality, orderbird will inform the customer of the planned change with reasonable notice before the changeover. If my.orderbird can no longer be used with the pre-existing functionality because it has been permanently abandoned, the customer is granted a special right of termination. In this case the customer is entitled to terminate the contract in writing without observing a notice period. The customer is informed of this option in the changeover notice. The contract is continued with the new scope of functions if the customer does not declare termination within two weeks of the implementation of the change. The date named in the changeover notice is decisive.
5. Data security
a) General
(1) To ensure compliance with the principles for the proper keeping and retention of books, records and documents in electronic form and for data access (GoBD), a continuous backup is maintained on the server side whenever an internet connection exists, covering both the revenue-relevant data (transaction data) and the data that is not revenue-relevant (master data).
(2) The customer is obliged to print out Z reports monthly and to archive them reliably.
b) Special features in fallback mode
If there is no internet connection and the client software "orderbird POS" is therefore not connected to the administration and accounting module "my.orderbird", the client software switches to what is known as fallback mode, in which data is collected but, in the nature of things, not maintained on the server side. When used in this way, the customer must ensure under all circumstances that the client software "orderbird POS" is started on the device and synchronized with the administration and accounting module "my.orderbird" over the internet at least once a week, in order to ensure proper data retention.
6. Support
(1) In accordance with the service description, orderbird offers various services which, depending on the license type, are covered by the remuneration or can be used additionally against payment of a fee. Ongoing support is governed by the conditions below.
(2) The following definitions apply with regard to ongoing support:
- "Support contact person" means up to three employees to be named by the customer who are solely authorized to report incidents to orderbird. "Incident" means a malfunction of the SaaS solution "my.orderbird" described in Section 2 of this contract, together with the hardware and software required to use it, in particular the "orderbird POS" application;
- "Response times" means the period between the receipt of notification of an incident by orderbird and the first response to the customer by return call or email, but also the start of work to remedy the fault;
- "Business hours" means customary business hours, covering at least core hours from 09:00 to 18:00 Monday to Friday; public holidays in the federal state of Berlin are excluded.
- "Working days" means the days Monday to Friday; public holidays in the federal state of Berlin are excluded.
(3) Incidents are categorized as follows:
- Category 1 incident: means that the SaaS solution described in Section 2 has come to a standstill in live operation and, as a result of a serious malfunction, is unable to process data;
- Category 2 incident: means a problem with the SaaS solution that results in a serious interruption of essential functions and cannot be remedied temporarily, for example by a workaround;
- Category 3 incident: means a problem that is not critical for 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: means questions about operating the software.
(4) orderbird provides support services during business hours with the following response times, beginning when the support request is received:
- Category 1 support request: no more than two hours;
- Category 2 support request: no more than four hours;
- Category 3 support request: no more than ten hours;
- Category 4 support request: by the end of the next working day.
(5) orderbird provides support services outside business hours with the following response times, with telephone requests treated as a priority:
- Category 1 support request: no more than six hours;
- Category 2 support request: no more than ten hours;
- Category 3 and 4 support requests: by the end of the next working day.
(6) The response may consist of a message from the technical staff, but also of the remedying of the fault. The report must be made exclusively by a support contact person to the telephone number +49 30 208 983 099 or to the email address [email protected].
7. Special provisions for the purchase of hardware
The following provisions apply to the purchase of preconfigured hardware:
(1) The goods remain the property of orderbird until the purchase price has been paid in full. If a third party levies execution against the goods, the customer is obliged to inform orderbird of this without delay and to provide all information and documents required for an intervention.
(2) The customer's warranty claims with regard to the purchased hardware become time-barred within one year of delivery of the purchased item. This does not affect the limitation of recourse claims within the meaning of Sections 478, 479 of the German Civil Code (BGB). If used hardware is sold, warranty is excluded.
(3) The above limitations do not apply to claims for damages or reimbursement of expenses based on gross negligence, intent or the breach of contractual obligations whose proper fulfillment makes the performance of the contract possible in the first place and on whose fulfillment the customer may regularly rely (hereinafter: "cardinal obligations"). Nor do they apply where claims for damages or reimbursement of expenses concern injury to life, body or health, or claims under the German Product Liability Act. Where a cardinal obligation is breached negligently, orderbird's liability is limited in amount to such damage and expenses as are typically associated with the contract and foreseeable.
8. Contract term and termination
a) Paid versions
(1) The contract is concluded for a period of one month when a monthly license is purchased, for a period of one year when an annual license is purchased, for a period of three years when a three-year license is purchased, or for a period of 10 years when a Lifetime license is purchased, and can be terminated at the end of the contractual usage period without observing a notice period.
(2) If the contract is not terminated, it is automatically extended by the agreed usage period in each case unless it is terminated one month before the end of the initial contract term. This does not apply to a contract for a Lifetime license, which is extended by one month at a time after the usage period has expired. The usage period is determined by the day on which the contract is concluded. In the case of a monthly license, it ends on the day of the following month that corresponds by number to the day the contract was concluded. If the contract is concluded on the last day of a month, the usage period ends at the end of the last day of the following month even if the number of that day is lower than that of the previous month. In the case of an annual license it ends on the day of conclusion of the contract in the following year, in the case of a three-year license on the day of conclusion of the contract after three years, and in the case of a Lifetime license on the day of conclusion of the contract after ten years.
(3) For all customers whose contract was concluded before September 4, 2017, the following applies: if the contract is not terminated before the end of the second month following the initial contract term, it is automatically extended by the originally agreed usage period in each case. In all other respects, the provisions in Section 8 a) (2) continue to apply.
(4) Termination must be in writing.
b) Free version
The contract for use of the free version is concluded for a period of one month and can be terminated at the end of the contractual usage period without observing a notice period. In all other respects, Section 8 a) applies accordingly.
9. Remuneration; payment terms
(1) The amount of the remuneration is determined by orderbird's written individual offer, which can be requested at any time by email to [email protected] or by phone at +49 30 208 983 099. The prices quoted are net prices and are exclusive of value added tax.
(2) The remuneration is payable upon conclusion of the contract and thereafter at the start of each new usage period. If the customer purchases further licenses during the term of this offer, orderbird reserves the right to adjust the billing cycle and to invoice the remuneration for the further licenses at the same time as the initial license. The amount owed is either debited from an account of the customer in accordance with a separate direct debit authorization after the respective contract has been concluded, or it must be transferred by the customer at the aforementioned time to the orderbird account stated in the offer. The customer receives an electronic invoice for the aforementioned amount.
(3) In the event of non-payment, orderbird reserves the right to suspend the service temporarily until payment has been made in full. The customer may only offset claims of their own that are undisputed, acknowledged by orderbird or legally established. These restrictions do not apply where the claim arises from the same contractual relationship as the orderbird claim against which it is to be offset.
10. Liability
(1) orderbird's liability for damage due to simple negligence is excluded, unless injury to life, body or health or claims under the German Product Liability Act are concerned. Liability for simple negligence remains unaffected in the case of a breach of cardinal obligations, that is, obligations whose fulfillment makes the performance of the contract possible in the first place and on whose observance the customer may regularly rely; in this case, however, liability is limited to compensation for the damage that is typically associated with the contract and foreseeable.
(2) The same applies to breaches of duty by orderbird's vicarious agents.
11. Reservation of the right to make changes
(1) In the event that material technical, economic or legal conditions change after the contract has been concluded, orderbird reserves the right to adjust the content of this contract, with the exception of the main performance obligations, insofar as this is reasonable for the customer.
(2) orderbird will announce the amended contract to the customer by email or at my.orderbird.com. At the same time, the customer is expressly informed that the respective amendment becomes part of the contract existing between the contracting parties if the customer does not object to this amendment within a period of four weeks from the announcement of the amendment, by email to [email protected] or in writing.
(3) If the customer objects to the changes in the proper form and in good time, the contract continues to exist unchanged. orderbird then has the right to terminate the contract with four weeks' notice if it is unreasonable for orderbird to adhere to the unchanged contract.
12. Final provisions
(1) Amendments to this contract must be in writing; there are no verbal collateral agreements at the time the contract is concluded. Only the terms of this contract apply; differing general terms and conditions of the customer do not become part of the contract, even if orderbird does not expressly object to them.
(2) 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.
(3) 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.