orderbird AG with place of business in Berlin offers a cloud-based gastronomic cash system which offers a particularly favourable cost-benefit ratio thanks to its centralised administration, flexible scalability and the use of cheaply available standard hardware for terminals. This contract, besides other specifications of services regarding the different versions of the product that are available, is the basis for the future cooperation of the parties.
Our complete range is exclusively targeted at restauranteurs, other users of cash systems and their suppliers, who are acting in a commercial or self-employed capacity and not for private purposes. The hardware offered by us is pre-configured for the use together with our platforms and is an accessory that is not designed for private use. In order to ensure that our customers use the device 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 cash system “orderbird” for a limited period in return for a fee. This cash system consists of a cash application for terminals called “orderbird POS” on the one hand as well as a management and accounting module called “my.orderbird”. The exact scope of the services owed by orderbird is determined by the specifications of services that can be accessed at “orderbird.com/de/Leistungsbeschreibung” 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 cash 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 places exclusive under the licence agreement as 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 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 cash system as a whole in terms of utilisation of a service.
At “my.orderbird.com”, the customer is provided with a dashboard where the customer can, in addition to the utilisation of the administration and accounting functions as set out in the contract, book and cancel additional services at the same time.
The gastronomic cash system “orderbird” supports the registration of accounting events using up to nine – depending on individual agreements also more – more terminals on which the client software “orderbird POS” is installed; the entirety of the terminals is referred to as a “swarm” among the parties. This contract sets out the uniform regulations for both the right to use the cash system with a single terminal as well as with several terminals in a swarm. By using the dashboard, the customer can extend the scope of services by adding more terminal licences in return for a fee in accordance with the agreement set out in section 8.c regarding contract duration at any time and, where applicable, can reduce the scope of services in the same manner.
The gastronomic cash system “orderbird” always requires a working Internet connection.
If the customer acquires pre-configured hardware from the manufacturer as offered at “orderbird.com”, the contractual provisions set out in the online shop apply to the purchase of the hardware; the provisions set out in this contract shall only be used for determination of the purposes owed under this contract.
The customer can decide between two product versions – see the specification of services mentioned in section 2 for more details – namely “my.orderbird PRO” on the one hand and “my.orderbird FREE” on the other hand. The following applies in this respect:
a) my.orderbird PRO
Under the name “my.orderbird PRO”, the customer is granted the right to use the contractual object as set out in section 2 as well as related support services in terms of section 6 for one terminal in return for a fee, at the choice of the customer for one month, one year or ten years (“lifetime licence”, based on a customary lifespan of a cash system of no more than ten years with a depreciation period of eight years).
Insofar as the system is subject to continuous improvement and expansion (see section 4 for details), any older specifications of services deviating from the current version can be requested from us. It is recommended that you save or print the specification of services that is the current version at the time the contract is concluded.
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 PRO” 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) my.orderbird FREE
“my.orderbird FREE” is a gratuitous right of use of the contractual object described in section 2, with limited functions when compared to “my.orderbird PRO”. As regards details, we refer to the specification of services that is available separately. The use of several devices in a swarm and the guarantee of the service levels set out in section 6 of this contract are expressly not included in the scope of services of “my.orderbird FREE”.
The use of the offer requires the customer to register for the offer “my.orderbird FREE” on the website “my.orderbird.com” as well as the installation of the client software “orderbird POS” through the app store of the provider Apple plus conclusion of the associated right of use agreement with orderbird.
The customer can at any time purchase the right to use the product version “my.orderbird PRO” in return for a fee on the website “my.orderbird.com” under the menu item “settings” -> “licence”.
One of the main advantages of central system administration is the simple option for expanding the scope of services during ongoing business operations and for adaption to the changing demands and requirements of customers. The further development highlighted in the specification of services therefore is a part of the contract, which necessarily always contains possible changes to how the solution is operated. The manufacturer therefore reserves the right to make the use of my.orderbird dependent on the installation of updated versions of the access software. 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 “orderbird.com/de/Leistungsbeschreibung”. The manufacturer will inform the customer of changes by e-mail.
If further development occasions a limitation or, in very rare exceptions, cessation of an existing function, the manufacturer will inform the customer of the planned change with a notice period of one month before the change. 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 Inter at least once per week in order to ensure proper record keeping.
As an additional service included in the remuneration, the Manufacturer offers both one-time set-up support and ongoing customer service pursuant to the following terms and conditions. After entering the agreement, set-up support consists of one-time configuration of the applications required for running the system “my.orderbird” in combination with the client software “orderbird POS” by way of remote maintenance, pre-configuration and return or on-site service. The choice of the appropriate form of set-up support in the individual case resides solely with the Manufacturer. If required, the Customer ensures that internet access for setting up remote access and a Wi-Fi-enabled computer is available.
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 the Manufacturer of any incidents. “Incidents” refers to malfunction of the SaaS solution “my.orderbird” as described in art. 2 hereunder and the hard- and software required for its use, including but not limited to the “orderbird POS” application.
“Response times” refers to the time between the Manufacturer receiving notice of an incident and its first reaction to the Customer by return call, e-mail but also starting to work on resolving the malfunction.
“Business hours” refers to the customary business hours which include a core time from 10:00 a.m. to 04:00 p.m. from Monday to Friday as a minimum; this does not include public holidays applicable in the state of Berlin.
Incidents are categorised as follows:
Category 1 incident: means that the SaaS solution described in art. 2 hereunder 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.
The Manufacturer 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: until the end of the next working day
Outside of the business hours, the Manufacturer will provide support services with the following response times:
Category 1 support request: six hours at most
Category 2 support request: ten hours at most
Category 3 and 4 support request: until the end of the next working day
The reaction can be a message of our technical staff but also remedy of the malfunction. The request must only be made by a support contact to the phone number 0800-orderbird or the e-mail address [email protected]
The SaaS solution is described in detail within the performance specifications referred to in art. 2. In addition, the individual functions are depicted in training videos on “orderbird.com”. The Manufacturer does not owe the Customer further documentation.
a) my.orderbird PRO
When purchasing a monthly licence, the agreement is concluded for one month, when purchasing an annual licence, it is concluded for one year, and when purchasing a lifetime licence, it is concluded for 10 years; it may be terminated without observing a period of notice at the end of the contractual usage term.
If the agreement is not terminated, it is renewed for one month, regardless of the initial term of contract. The usage term is dependent on the date of conclusion of the original agreement. For the monthly licence, it ends on the day of the following month corresponding to the date of conclusion of the agreement. If the date of conclusion of the agreement was the last day of a month, the usage term also ends on the last day of the following month even if the number of the day is lower than that of the previous month. For the annual licence, it ends on the date of conclusion of the agreement in the following year, and for the lifetime licence, it ends on the date of conclusion of the agreement after ten years.
Termination must be made in writing.
b) my.orderbird FREE
The agreement on my.orderbird Free service is concluded for a term of one month and may be terminated at the end of the contractual usage term without observing a period of notice. Otherwise, art. 8.a shall apply correspondingly.
c) Using several devices in a “cluster”
If the Customer expands the scope of service of its “my.orderbird PRO” BASIS licence to additional terminal devices, the Customer shall purchase a monthly licence for each terminal device; it is extended by another month after expiration of the initial service time if the Customer does not cancel the usage right for the respective terminal device by selecting the respective option in the dashboard without observing a period of notice. Otherwise, art. 8.a) shall apply correspondingly.
a) my.orderbird PRO
The aforementioned services are remunerated at an amount of €49.00 net plus applicable VAT per month for a monthly “my.orderbird PRO” BASIS licence and at €490.00 net plus applicable VAT for the first year of an annual licence and €49.00 net plus applicable VAT for each additional month.
The amount of remuneration for a lifetime licence for ten years depends on the Manufacturer’s written individual offer. Remuneration is valid upon conclusion of the agreement, plus applicable VAT. Subsequent monthly extension is remunerated at an amount of €49.00 plus applicable VAT per month if the agreement is not terminated.
If the Customer extends the scope of service of its “my.orderbird PRO” BASIS licence to include additional terminal devices, the amount of remuneration, including that for terminal devices in a cluster booked at a later time pursuant to art. 2, 8.c, depends on the following provision: Up to two additional used terminal devices are remunerated at an additional amount of €49.00 net, up to four additional used terminal devices are remunerated at an additional amount of €149.00 net, and up to nine additional used terminal devices are remunerated at an additional amount of €399.00, each amount plus applicable VAT and payable monthly. The amount of remuneration for the use of eleven or more terminal devices in total depends on the Manufacturer’s written individual offer.
The remuneration is payable upon conclusion of the agreement and subsequently at the beginning of each new usage term. 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 is either withdrawn from the Customer’s account pursuant to a specific direct debit authorisation within three days after start of the respective usage term of the device, or the Customer will transfer it to the Manufacturer’s account given in the order at the aforementioned time. The Customer is provided with an invoice for the above amount.
b) my.orderbird FREE
The “my.orderbird FREE” licence is free of charge.
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 material obligations, i.e. obligations of which fulfilment is required for enabling performance of the agreement as such and for which the Customer may depend on their regular fulfilment; however, liability in this event is limited to compensation of damage foreseeable and typically associated with the agreement.
The same shall apply for breach of obligations by orderbird’s vicarious agents.
In the event that significant technical, commercial or legal framework conditions are changed after conclusion of the agreement, 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 advise the Customer per e-mail and at https://www.orderbird.com/de/agb of the amended agreement. 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 e-mail to [email protected] or in writing within a term of four weeks as of 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.