Status: September 2017
orderbird AG (“orderbird”), based in Berlin, offers a cloud-based gastronomic POS system. This contract, besides other specifications of services regarding the various products and services, is the basis for the future cooperation between the Customer and orderbird.
The complete service is exclusively targeted at restaurateurs, other users of POS systems and their suppliers, who are acting in a commercial or self-employed capacity and not for private purposes. The hardware offered is intended for the use of our POS system and serves as an accessory that is not intended for private use. In order to ensure that our Customers use the service in this sense, we verify their entrepreneurial status as part of order handling. The contract is concluded subject to the proviso that the result of this verification is favourable.
Under this contract, the Customer is granted the right to use the cloud-based gastronomic POS system “orderbird” for a limited period in return for a fee. On the one hand, the POS system consists of a POS application on terminal 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 and hardware for sale. The exact scope of the services owed by orderbird is determined by the specifications of services that can be accessed at “https://www.orderbird.com/en/service-description” and by the selected product type as agreed in section 3 of this contract; these two references are equal in rank.
Requirement for utilisation of the POS system is the installation of the client application “orderbird POS” available through the app store of the provider Apple on a terminal using the operating system “iOS” of the same provider. As regards the granting of simple rights of use free of charge in regard to this software, reference is made to the licence agreement that can be accessed at the same location. Minimum system requirements are set out in the aforementioned specifications of services. Insofar as the client application “orderbird POS” can also be used without registration of the Customer with the management and accounting module described below, doing so takes place exclusively under the licence agreement which is made a requirement for installation through the app store of the provider Apple; it is not the object of this contract.
The administration and accounting module “my.orderbird” is offered as a SaaS solution (“software-as-a-service”); accordingly, no copyright-related rights of use are created for the Customer under this contract, with the exception of the aforementioned right to install and use the app “orderbird POS”; the term “licence” used for different product versions below as well as in the specification of services is therefore not to be construed as a licence in copyright terms, but as a factual right for utilisation of the gastronomic POS system as a whole in terms of utilisation of a service.
The gastronomic POS system “orderbird” supports the registration of accounting events using up to nine – depending on individual agreements also more – terminals on which the client software “orderbird POS” is installed; the entirety of the terminals is referred to as a “swarm” between the parties. This contract sets out the uniform regulations for both the right to use the POS system with a single terminal as well as with several terminals in a swarm.
The gastronomic POS system “orderbird” always requires a working Internet connection.
The POS system is subject to continual improvement and expansion – for more information on this see section 4. It is therefore recommended to save or print out the contract terms and conditions including the current service description at the time the contract is concluded.
The Customer can choose between different product versions – see the specification of services mentioned in section 2 for more details. The following applies in this respect:
a) Paid Versions
Device license Under the name “device licence”, the Customer is granted the right to use the subject matter of the contract described in section 2 for one end device per device license for a period of one month, one year, three years or ten years at the Customer's option (the latter being referred to as "lifetime", based on a normal useful life of a POS system of no more than ten years with a depreciation period of eight years). The purchase of a device license is only possible in conjunction with a service charge, which must be for at least the duration of the device licence.
Service charge The Customer is granted the option of continuously storing all cash register data as well as all configurations in my.orderbird under the name “service charge”. In addition, the Customer shall be provided with support in accordance with Section 6 and the description of services. The service charge can be purchased at the Customer's option for a period of one month, one year, three years or ten years (the latter being referred to as “lifetime”, based on a standard useful life of a POS system of no more than ten years with a depreciation period of eight years). It is not dependent on the purchase of a device license.
In order to ensure conformity of the process with the principles regarding the proper keeping and archiving of books, records and documents in electronic form as well as access to data (GoBD), the Customer must ensure that all devices he uses are connected via the Internet to the system back-end of “my.orderbird” using the client software “orderbird POS” installed on the devices within the first week after conclusion of this contract for alignment of the managed data.
b) Free Version
In order to meet the Customer's requirements and requests for changes, the continuous further development of the products and services mentioned in the service description is an integral part of the contract, which necessarily involves continuous possible changes in the operation of the software or changes to the services. The aforementioned provision applies if the functionality at least covers the scope that my.orderbird covered at the time the contract was concluded as expressly set out in the specification of services available at “https://www.orderbird.com/en/service-description”. The manufacturer will inform the Customer of changes by email.
If further development occasions a limitation or, in very rare exceptions, cessation of an existing function, orderbird will inform the Customer of the planned change within a reasonable period of time prior to the conversion. If my.orderbird can no longer be used with the pre-existing functionality due to definitive cessation, the Customer is granted a special right of cancellation. In this case, the Customer has the right to terminate the contract in writing without observing a notice period. The Customer will be notified of this option in the change notification. The contract will be continued with the new functionality if the Customer does not declare termination within two weeks after implementation of the change. The date set out in the change notification shall be decisive.
a) General Information
In order to guarantee conformity with the principles for proper keeping and archiving of books, records and documents in electronic form as well as access to data (GoBD), the server generates a continuous backup when an Internet connection is active; this backup includes both turnover-relevant information (transaction data) and information not relevant for turnover (master data).
The Customer is obliged to print Z reports on a monthly basis and to archive these in a reliable manner.
b) Particulars of the Fall-back mode
If no Internet connection is available and a connection of the client software “orderbird POS” to the administration and accounting module “my.orderbird” is therefore not possible, the client software switches to the so-called fall-back mode, in which data are collected but (according to the nature of the circumstances) are not recorded by the server. When using the system in this form, the Customer must ensure under all circumstances that the client software “orderbird POS” is started on the terminal and is synchronised with the administration and accounting module “my.orderbird” via the Internet at least once per week in order to ensure proper record keeping.
orderbird offers various services in accordance with the description of services, which are included in the price depending on the type of license or can be used additionally against payment of a fee. Ongoing support is subject to the following conditions.
With regard to ongoing support, the following definitions shall apply:
● “Support Contact” refers to up to three employees to be named by the Customer who have the sole authority to notify orderbird of any incidents. “Incident” refers to a malfunction of the SaaS solution “my.orderbird” described in section 2 of this contract, together with the hardware and software required for its use, in particular the “orderbird POS” application;
● “Response times” refers to the time between orderbird receiving notice of an incident and its first reaction to the Customer by return call, email but also starting to work on resolving the malfunction;
● “Business hours” refers to the customary business hours, which include a core time from 09:00 a.m. to 06:00 p.m. from Monday to Friday as a minimum; public holidays in the state of Berlin are excluded.
● “Working days” refers to the days Monday to Friday; public holidays in the state of Berlin are excluded.
Incidents are categorised as follows:
● Category 1 incident: means that the SaaS solution described in section 2 has frozen in live operation and is not able to process any data due to severe malfunction;
● Category 2 incident: refers to a problem of the SaaS solution causing severe disruption of material functions which cannot be resolved temporarily, e.g. by a workaround;
● Category 3 incident: refers to a problem not critical for the software’s basic function; the Customer is still able to log into the system, and/or a workaround is possible;
● Category 4 incident: refers to queries about operating the software.
orderbird will provide support services during business hours with the following response times, starting with registering the support request:
● Category 1 support request: two hours at most;
● Category 2 support request: four hours at most;
● Category 3 support request: ten hours at most;
● Category 4 support request: by the end of the next working day.
orderbird provides out-of-hours support services with the following response times, giving priority to telephone enquiries:
● Category 1 support request: six hours at most;
● Category 2 support request: ten hours at most;
● Category 3 and 4 support request: by the end of the next working day.
The reaction may be a message from the technical staff or the rectification of the fault. The notification 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]
When purchasing pre-configured hardware the following provisions apply:
The goods shall remain the property of orderbird until the purchase price has been paid in full. If a third party should initiate enforcement proceedings against the goods, the Customer is obliged to inform orderbird immediately and to provide all information and documents necessary for an intervention.
Warranty claims by the Customer relating to the purchased hardware are subject to a limitation period of one year after delivery of the purchased item. This shall not affect the statute of limitations for recourse claims as defined in §§ 478, 479 BGB (German Civil Code). If used hardware is sold, the warranty is no longer valid.
The above mentioned restrictions shall not apply to claims for damages or reimbursement of expenses which are attributable to gross negligence, intent or breach of contractual obligations, the proper fulfilment of which makes it possible to execute the contract in the first place and upon the fulfilment of which the Customer may generally rely (hereinafter referred to as “cardinal obligations”). They also do not apply to claims for damages or reimbursement of expenses due to injury to life, limb or health or to claims based on the Product Liability Act (Produkthaftungsgesetz) are concerned. Insofar as a cardinal obligation is negligently breached, the liability of orderbird is limited to the amount of damages and expenses typically associated with the contract and foreseeable.
a) Paid Versions
The contract shall be concluded for a period of one month with the purchase of a monthly license, for a period of one year with the purchase of an annual license, for a period of three years with the purchase of a three-year license or for a period of ten years with the purchase of a lifetime license and shall be terminable without notice at the end of the contractual period of use.
If the contract is not terminated, it shall automatically be extended by the agreed period of use if it is not terminated with one month's notice prior to the end of the initial contract period. This does not apply to a contract for a lifetime license which is extended by one month respectively after the end of the period of use. The period of use is determined by the date of conclusion of the contract. In the case of a monthly license, it shall end on the day of the following month, the number of which corresponds to the day on which the contract was concluded. If the contract is concluded on the last day of a month, the period of use ends at the end of the last day of the following month, even if the number of days is less than that of the previous month. In the case of an annual license, it shall end on the date of conclusion of the contract in the following year, in the case of a three-year license on the date of conclusion of the contract after three years, and in the case of a lifetime license, on the date of conclusion of the contract after ten years.
For all customers who entered into an agreement before 4 September 2017, the following shall apply: If the contract is not terminated before the end of the second month following the initial contract period, it shall automatically be renewed for the initial agreed period of use. For the rest, the provisions of § 8 a) 2. remain applicable.
Notice of termination must be given in writing.
b) Free Version The contract for the use of the free version is concluded for a period of one month and can be terminated without notice at the end of the contractual period of use. In all other respects section 8. a) applies accordingly.
The amount of remuneration is determined by the written individual offer from orderbird, which can be requested at any time by email to [email protected] or by telephone under +49 30 208 983 099. Prices quoted are net prices and do not include VAT.
Remuneration is payable upon conclusion of the contract and thereafter upon the commencement of each new period of use. If the Customer purchases further licences during the term of this offer, orderbird reserves the right to adjust the invoice cycle and to invoice the remuneration for the additional licences at the same time as the original licence. The amount owed shall either be debited from a Customer's account after conclusion of the respective contract in accordance with a separate direct debit authorization or it shall 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 above amount.
In the event of non-payment, orderbird reserves the right to temporarily suspend performance until payment has been made in full. The Customer may only offset his own claims if they are undisputed, acknowledged by orderbird or legally established. These restrictions do not apply if the claim originates from the same contractual relationship as the claim of orderbird against which set-off is to be made.
Liability of orderbird for damage due to ordinary negligence is excluded unless injury to life, body or health or claims incurred pursuant to the German Product Liability Act are present. Liability for ordinary negligence remains unaffected in the event of breach of cardinal obligations, i. e. obligations whose fulfilment makes the execution of the contract possible in the first place and on whose observance the Customer may generally rely; however, liability in this case is limited to compensation for damages typically associated with the contract and foreseeable.
The same shall apply for breaches of obligations by orderbird’s vicarious agents.
In the event that significant technical, commercial or legal framework conditions are changed after conclusion of the contract, orderbird reserves the right to amend the content hereunder, with the exception of the major obligations to perform, if this is deemed acceptable to the Customer.
orderbird will inform the Customer of the amended contract by email or via my.orderbird.com. At the same time, the Customer is expressly advised that the respective amendment will become subject of the agreement between the contractual partners if the Customer does not object to such amendment by email to [email protected] or in writing within a period of four weeks from the announcement of the amendment.
If the Customer objects to the amendments in due time and form, the agreement continues without any change. Subsequently, orderbird is entitled to terminate the agreement, observing a period of notice of four weeks, if it is deemed unacceptable to orderbird to continue the agreement without any change.
Changes and amendments hereunder must be made in writing; at the time of conclusion of this agreement, there are no verbal supplementary agreements. The terms hereunder shall apply exclusively; deviating terms and conditions of the Customer are not part of this agreement, even if orderbird does not expressly object to them.
If the Customer is a merchant, a corporate body under public law or a special fund under public law, the place of jurisdiction is Berlin.
This agreement is subject to German law. Conflict of laws and the United Nations on Contracts for the International Sale of Goods (CISG) are expressly excluded.