1. Scope of validity
These General Terms and Conditions of Business (hereinafter referred to as the: "Terms and Conditions" apply to all offers, deliveries and services of the company gastronovi gmbH (hereinafter referred to as the "Provider") and its customers (hereinafter referred to as the "Customer"). The Terms and Conditions of the Customer shall only apply if and to the extent that the Provider has expressly accepted them in writing. These General Terms and Conditions of Business (AGB) are deemed accepted when the Customer uses a Provider service or takes receipt of a Provider delivery. The Provider’s General Terms and Conditions of Business (AGB) also apply to all future offers, deliveries and services, even if the Provider has not expressly consented to them.
These provisions apply to business transactions with entrepreneurs. The Customer is a consumer if the purposes of the ordered services predominantly fall outside his trade, business or profession. An entrepreneur, on the other hand, means a natural or legal person or a partnership with legal personality who or which, when concluding the contract, acts in exercise of his or its trade, business or profession.
The subject matter of this section is the provision of the software application "gastronovi Office" (hereinafter referred to as the "Software") and additional services.
2.1 Subject matter of the contract / services
- gastronovi Office offers a Cloud-based software solution (SaaS) that models processes in the food and drink industry using a range of different modules. Data are saved centrally in certified German data centres which carry out daily server backups.
- Some of the modules can be ordered on a weekly, monthly, annual or per-use basis. The scope of functionality of the ordered software modules can be found in the offer confirmation and the description on the gastronovi website here.
- By concluding a contract for trial use using a test account, gastronovi allows the Customer to use the software for 14 days solely for test purposes (test period) beginning at the time when access to the Software is issued or the login data are provided (test period). A Customer is entitled to only one test period. Once the test period has elapsed, the Customer's account will be blocked and, following a 3 month retention period, the data will be deleted. There is no automatic conversion into a contract for use of the Software for a fee. After the test period has elapsed, the Customer can choose to conclude a contract with gastronovi for use of the Software for a fee. The data (from the test account) can then be imported.
- The Customer can use the Software to control its business processes in the food and drinks industry sector. The Software is installed on a server accessible over the Internet. The Software is "browser-based", via an app or interface (API). The Provider also offers the Customer space for storing internal application data generated by the Software, e.g.: menus, recipes, etc. During the term of the agreement, the Provider will set up, operate and maintain the connection between the server and the Internet so that the server data is transmitted at the Customer's request to the Customer's computer over standard Internet protocols (see 2.5.).
- The Software also provides the Customer with functions with which they can present themselves online. These services are provided by the Provider via the domain services.gastronovi.com. The Provider also offers the Customer storage space by means of which the Customer can showcase its company ("Website") to the general public over the wired and wireless Internet.
- The scope of the program and storage package match the description in the order confirmation, price- and module list, and - where applicable - the module description for the Software.
- With the Software, the Provider offers third-party interfaces (integrations), which can be used by the Customer to utilise the data and/or services of third parties (in particular, suppliers, payment system, hotel software). The Provider only provides one software interface in each case. The information and offered services made available via these interfaces are third-party information and services. These information or services do not belong to the Provider.
- The Provider does not assume any responsibility for the accuracy of the third party information (in particular, article descriptions, prices, discounts, LMIV data (allergy and additives, information about nutritional content)).
- By using these interfaces and opting for third party modules, the Customer accepts that data will be sent from the Software to the third party offering the services in question.
- The Provider does not assume any responsibility for services offered by third parties.
2.2 Use of the Software
- The Software is used with the aid of the Customer's internet connection at the interconnection point. The "Interconnection point" for the Software and the Customer’s application data is the proxy server (main entry point for the underlying cloud structure) of the Provider, which is accessed via a browser or an "app" from a public "store" (e.g., Google Play Store, Apple App Store), or an interface ("API").
- The Software cannot be used without creating a customer account (in the following: the “Account”) first. To create this Account, the required information and a password must be specified. When confirming the new account, the Customer initially submits a binding offer to enter into a contract on the use of the Software for test purposes and at no cost (test account). Gastronovi can (legally) accept this offer by setting up and allowing access to the Account or by sending a message to the entered email address with the login data for the Account that was set up. If there is an order confirmation (for this Customer), the test account will be automatically converted into an (regular) account.
- The Provider shall provide the latest version of the Software on one or more central data processing system(s), hereinafter referred to as the "Server", for use in accordance with the following provisions from the time agreed in the order confirmation.
- The Provider sends the Customer the access data for the Software. The Customer must change all user names and passwords to names and passwords known only to them.
- The Provider keeps on the Server the data generated by the Customer through the use the Software (hereinafter referred to as the "Application data") and storage space from the time agreed in the order confirmation. Further details on storage space and application data are agreed as per the module descriptions or in the order confirmation.
- Since it is to be expected that personal data will be among the data to be processed on the server this constitutes commissioned data processing. Further details are governed by the separately concluded agreement on commissioned data processing.
2.3 Using the email service
If the Provider offers the sending of emails, the following shall apply:
- The limitations on storage space, data traffic and number of inboxes specified in the purchase order and (of lower ranking than the purchase order) in the module description valid at the time of the order shall apply. If neither the module description nor the purchase order provide for limitations on the storage space available for email traffic, the storage space made available for use by the Customer on the Provider's server shall be limited to 5 GB (5,000 megabytes).
- Sending "Spam mails” (unauthorised, unwanted marketing to third parties) is not permitted. The Customer is required to provide their correct identity whenever sending emails and, in the case of commercial correspondence, to make this apparent through a suitable email format.
If the Customer sends spam mails from, or if there are reasons for assuming that an outgoing email contains harmful software (viruses, worms or Trojans etc.), the Provider may temporarily block the inboxes on the email server. Insofar as an internet address is named or linked to in a spam email, which the Provider is managing, the Provider may temporarily block the domain or the content.
- The Provider has the right to reject incoming emails if there are reasons for assuming that an email addressed to the Customer contains harmful software (viruses, worms or Trojans, etc.), the sender's information is false and/or disguised or the email is spam.
2.4 Storage space / web hosting
- The Provider shall provide the Customer with the storage space described in the module description in terms of the data volume in megabytes (MB) in accordance with the following provisions which apply to any storage medium (e.g. hard disk) for use within the scope of the following Terms and Conditions. If a larger storage medium is required, the Provider shall provide additional storage space for a fee by means of a separate agreement.
- The Provider shall provide the Customer with the storage space in the cloud infrastructure, i.e. storage space on several storage media which are also used or usable by other customers, but which are assigned one or more IP address(es) of their own and thus appear to third parties as independent servers.
- The Provider shall establish and maintain the connection between the server and the Internet so that the data stored on the server is sent to the requesting computer at any time and without disruption at the request of external computers over the internet (clients) by means of commonly-used internet protocols in the applicable protocol (see 2.5.).
- The Provider shall endeavour to ensure that the data stored by the Customer in conformity with the contract (in particular, the content of the Customer website/content on services.gastronovi.com) are available to the public around the clock on the world wide web via the network maintained by the Provider and its internet connection. The Provider does not assume any responsibility for successful access to the website, if the network used is not exclusively that operated by the Provider, including interfaces to third-party networks.
- The Provider shall also ensure that the Customer is able to access the server at all times (within the limits on server availability, as per 2.5). For this purpose, the Provider shall assign the Customer a user name and password, with which the customer can independently save, change, supplement or delete its data stored within the scope of the Software by means of data transfer. The Provider shall allow Customers the ability to change their password.
2.5 Server availability
- The web server is operational 24 hours a day, seven days a week with an annual average availability of 97.5%. This excludes previously announced downtimes due to maintenance and software updates as well as times during which the web server is unavailable due to technical or other problems that are beyond the control of the Provider (force majeure, fault of third parties, etc.). Web server availability does not cover the availability of the server over the Internet. The Provider is only responsible for this to the extent that the Provider creates and maintains the connection between the Server and the Internet.
- Planned non-availability: The Provider is entitled to maintain the Software and/or Server, and to carry out data back-ups or other work. Planned periods of non-availability must be agreed with the Customer. When there are important reasons for doing so, the Customer shall not unreasonably refuse its consent. The Customer hereby gives its consent to a planned period of non-availability on the first Monday of every month of the entire contractual term, from 2 am to 6 am. If the Provider carries out this maintenance work, these downtimes are not credited as per 2.5.1 of the Terms and Conditions. When and to the extent that the Customer is able to use the Software during these periods of planned non-availability, the Customer is not legally entitled to be able to do so. If, during periods of planned non-availability, interruptions or stoppages to the service arise, the Customer does not have any liability claims for defects, nor to damages nor any claim to a reduction in the fee.
2.6 Customer content
- The following shall apply to the extent that the Customer makes its own content accessible to third parties remotely or to the general public over a wired or wireless connection by means of the Software (for example via its own website or via the Portal services.gastronovi.com or in some other way) and/or uses the resources provided by the Provider:
- The Customer must comply with statutory provisions, in particular those relating to the protection of minors, and shall respect all copyrights, trademark rights and naming rights, as well as personal rights and other rights of third parties when posting their own content. The Customer must not post any racist, discriminatory, pornographic or politically extreme content.
- The Provider is not required to check and/or advise on the accuracy, completeness and legal admissibility of the content posted by the Customer.
- The Customer is liable in relation to the Provider for damages incurred by the Provider due to inaccurate content or content that violates legal standards for which the customer is responsible. In this case, the Customer is obliged to indemnify and hold harmless the Provider from claims for damages and reimbursement of expenses of third parties caused by the infringement. The obligation to hold the Provider harmless includes the obligation to indemnify the Provider from all legal defence costs (court and legal fees, etc.). Other claims of the Provider, in particular to block the content and to an extraordinary termination, shall remain unaffected.
- The Provider is entitled to suspend the connection between the website and the Internet (block the website) if there is a reasonable suspicion that the website contains illegal content according to 2.6.1. above, on the basis of a warning from the alleged injured party or investigations by state authorities, unless the warning is obviously unfounded. Where technically possible and reasonable, the block must be limited to the alleged incriminating content. The Customer shall be notified immediately of the block, giving reasons, and shall be requested to remove the presumed incriminating content or to demonstrate and, where appropriate, prove the legality of such content.
- The Customer themselves transfers their content to the Provider's server. If the Customer needs support and/or wants to create their own design templates, this shall be based on a separate agreement (offer confirmation).
- The Customer shall grant the Provider the following rights of use to the content:
- The contents of the website are protected for the Customer in individual cases under copyright law (as a work, collective work, database work, computer programme, photograph, database, via related accomplishment-related protection rights or rights derived from the aforementioned rights), German Art Copyright Act, German Trade Mark Act or via other protective rights ("protected content"). The Customer grants the Provider the non-exclusive right, limited in time to the duration of the contract, which is non-transferable, limited to the location of the respective server (for backup copies: to where they are kept), to reproduce the protected contents for the purposes of this contract on the Server, on another server used for mirroring purposes, and for a sufficient number of backup copies.
- The Customer grants the Provider the non-transferable, global, non-exclusive right, limited in time to the duration of the contract, to make the protected content available to the public via the network maintained by the Provider and the internet connected to it in such a way that members of the public can access the website from a place and at a time chosen by them and can store this data by downloading it from the Provider's Server. If, after the contract has ended, protected content is stored by third parties in a cache (for example, by search engines), this Provider will no longer be responsible for this content.
2.7 Software updates
- The Customer is obliged to use the latest version of the Software. In so far as the Provider issues software updates without extending functionality as part of software maintenance, this Agreement shall apply. The Provider will notify the Customer of any update (performance of maintenance).
- If the Provider develops new modules for the Software, the Provider shall offer them to the Customer for use. Unlike updates, new modules are parts of the program with additional software functionality. The Provider shall notify the Customer of the new software module at the latest at the point it becomes available, and offer it for use. If the Customer wishes to use the new module, the provisions of this Agreement shall apply.
- The Provider shall further develop the Software on an ongoing basis.
- The Provider is permitted to make changes without prior consent (automatic updates) provided that the functionality of the Software is not impaired as a result. These updates shall be logged in the change log and can be viewed at any time.
- If the provision of a new update is accompanied by a change in the functionalities of the Customer's work processes supported by the Software, the Provider shall announce this in text form at least four weeks before such a change is to come into effect.
- If a new version involves a limitation of functionalities (a functionality is removed and is not replaced by an equivalent functionality) and/or restrictions in the usability of previously generated data, the Provider shall notify the customer in text form no later than three months before such a change takes effect and give the customer the opportunity to object to the change in text form with a reasonable notice period of at least three months and thereby terminate the contract for use of the Software. If the Customer fails to object to the change in text form, the amendment shall become incorporated into the contract. The Provider will draw the Customer's attention to the aforementioned deadline and the consequences of missing the deadline whenever changes are announced.
- If the Provider has notified the customer of a change in accordance with the foregoing 18.104.22.168 before expiry of the notice period under 2.13.4 and neither party terminates the contract, it shall apply from the start of the new contract period.
2.8 Prices and payments
- The remuneration for the services to be rendered for granting use of the Software and possibly other services shall be agreed with the purchase order and order confirmation.
- The Provider provides other services on a cost-basis as per the Provider's general price list applicable at the time of the engagement on the basis of an individual agreement with the Customer.
- Remuneration plus value added tax at the applicable statutory rate is owed.
- For licenses for one year or more, the remuneration is paid in advance.
- Monthly prices are payable pro rata for the remainder of the calendar month, commencing on the day of the provision of the operational service. Afterwards, payments are to be made in advance per calendar month. If a price is to be calculated for a part of a calendar month, it is calculated per day at 1/30 of the monthly price.
- Weekly licences and sales-based licences are calculated and invoiced at the end of the month. A weekly licence always runs from Monday to Sunday.
- Hardware must be paid for in advance.
- A Customer is not allowed to offset claims with counter-claims, unless such a counter-claim is not under dispute or has final, res judicata effect.
- The Provider generally creates and sends invoices electronically. Paper invoices can be sent by regular mail for an extra fee.
- If direct debit has not been agreed, the invoice amount must be credited to the bank account stated in the invoice no later than the seventh bank working day after receipt of the invoice.
- If the Customer is at least 14 days in arrears in making payment, the Provider will be entitled to block the Customer's access to the Software until the default has ended after issuing an advance notice and setting a deadline for payment of at least three days in text form. The Provider reserves the right to assert a right of retention over the Software also on account of arrears in making payments for services, support costs and hardware services.
- The Provider reserves the right to change the agreed remuneration effective from the end of the relevant contractual term.
2.9 Customer duties
- The Customer will meet all obligations necessary for the performance of the contract. In particular, the Customer must
- make sure that the technical prerequisites for proper functioning of the software are met at its end, in particular, a quick and stable network connection (see also 2.10. 1) and ensure that the hardware used meets the state of the art;
- require that the employees and service providers to whom it grants access to use the Software comply in turn with the provisions of this Agreement which are applicable to them, and ensure that they continue to comply with this obligation;
- take the necessary precautions to prevent unauthorised persons from using the Software by means of the access data given to it, its employees or service providers.
- to refrain from retrieving or causing to be retrieved any information or data without authorisation or to interfere or allow interference with any programs operated by the Provider, or to intrude or encourage unauthorised intrusion into the Provider's data networks;
- to refrain from misusing the exchange of electronic messages possible within the framework of the contractual relationship and/or using the Software for the unsolicited sending of messages and information to third parties for advertising purposes;
- ensure that (for example when third-party text/data are sent to the Provider's server) all rights of third parties to the material used by it are respected;
- Meet its obligations under 2.6. and 5.;
- not otherwise use the software for racist, discriminatory or pornographic purposes, which put minors at risk, or for politically extreme or otherwise unlawful purposes or in breach of official regulations or requirements;
- Checks data and information for viruses and use state-of-the-art anti-virus applications before sending data and information to the Provider.
- In the event of a breach of these obligations, the Customer shall indemnify the Provider from claims by third parties based on the use of the Software by it or its employees in breach of his duties and to compensate the Provider for any loss(es) arising from a breach of an obligation.
2.10 Customer obligations
- The Customer shall fulfil all obligations which are necessary for the performance of the contract and the use of the Software, in particular
- provide the Provider with an up-to-date personal email address for inquiries, in particular for urgent matters;
- meet the minimum requirements on the infrastructure (e.g. an internet connection) for using the software and the system requirements (in terms of the item of equipment used to use the Software). The Customer must ensure that these requirements are met at all times. The current minimum requirements can be found on the Provider's website;
- Maintain the confidentiality of the user and login authorisations assigned to it, its employees and service providers, protect them from access by third parties and to refrain from passing them onto unauthorised third parties. These data must be protected using suitable, commonly used measures. The Customer shall inform the Provider without delay if there are grounds for suspecting that unauthorised persons may have become aware of login and password information;
- If the Customer sends data to the Provider in order to generate application data using the Software, the Customer shall make regular and appropriate back-ups of the data and make its own daily back-up copies in order to enable the data and information to be restored in the event of loss;
- if and to the extent that it has been given the technical capability by mutual agreement to regularly back up the application data stored on the server by downloading it;
- to uphold its obligations pursuant to the German Anti-Money Laundering Act.
- After termination of the contract, the customer shall by download and back up its data (whether it be application data or content made available for retrieval over the Internet) from the Provider's server.
2.11 Rights and obligations for defects
- The Customer shall notify the Provider immediately of any defects in contractual performances, in particular defects in the services according to 2.1.6. of these Terms and Conditions. If the Customer fails to notify the Provider in a timely fashion for reasons for which the Customer is responsible, this shall constitute contributory causation and/or contributory negligence. In as much as the Provider was not able to take remedial action as a result of the omission or delay of the notification, the Customer is not entitled to reduce the remuneration according to 2.8. of these Terms and Conditions; nor demand the compensation for the damage caused by the defect, nor to extraordinarily terminate the contract for reasons of the defect without observing a notice period unless the Customer is not responsible for the failure to notify.
- The Provider must remedy the software defect without delay.
- Termination by the Customer pursuant to § 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) due to being deprived of use in conformity with the contract is only permissible if the Provider was given sufficient opportunity to remedy the defect and this did not succeed. A failure to remedy the defect can only be assumed if it is impossible, if the Provider refused to do so, or if it was delayed in an unacceptable manner, if there are reasonable doubts that the remedy will be successful or if it would be unreasonable for the Customer for some other reasons.
- The rights of the Customer arising from defects are excluded in as much as the Customer made changes or allowed changes to be made to the Software without the consent of the Provider, unless the Customer proves that the changes do not have any unreasonable effects on the analysis and remedy of the defects for the Provider. The rights of the Customer due to defects shall remain unaffected in as much as the Customer is entitled to make changes, in particular within the scope of its exercising its right of self-remedy pursuant to § 536a (2) BGB and these changes have been carried out professionally and documented in a comprehensible manner.
- The Provider shall be liable without limitation in the event of intent or gross negligence for all damage caused by it and its legal representatives or a person used to perform its obligation(s). In the case of ordinary negligence, the Provider is liable without limitation if it has assumed a guarantee or in the event of injury to life, limb or health. For the rest, the Provider shall only be liable to the extent that it has breached a material contractual obligation (= such obligations which are indispensable for the performance of this Contract and/or on the fulfilment of which the Customer would justifiably rely). In these cases, liability is limited to the replacement of foreseeable typically occurring losses.
- Strict liability for damages (§ 536a BGB) on the part of the Provider for defects which existed at the time the contract was concluded is excluded; the foregoing 2.12.1. remains unaffected.
- Liability based on the Product Liability Act remains unaffected.
- The Provider is not liable for force majeure. Force majeure is understood to mean disruptions caused by events beyond the Provider's control, such as industrial disputes, disasters or disruptions to the energy supply of third parties, failure of the telecommunications networks of third parties and measures taken by authorities.
2.13 Beginning and ending of the contract, termination
- The beginning of the contract is generally specified in the order confirmation for the Software. The initial term of this Contract is indicated in the order confirmation.
- The minimum term of the software contract is the term defined in the order confirmation, but is no less than 3 months.
- Individual modules/licences can be ordered independently of the initial order confirmation. The beginning of the contract in this case is the date of first use. The conclusion of the contract takes place from within the Account. The Customer selects the corresponding modules and confirms their selection. If credit card data are also stored in addition to the company name and billing address, the Customer concludes the contract with gastronovi by confirming and sending a contract for the chargeable use of the Software with the selected billing type.
- The Contract (annual and/or monthly licence) shall be extended in each case by the term defined in the order confirmation, but not by more than 1 year, if it is not terminated following a notice period of one (1) calendar month before expiry of the contractual term. Per-use and/or weekly licences are ordered separately based on the minimum contractual terms, are invoiced based on use, and therefore cannot be terminated.
- If the Provider notifies the customer in text form of a price adjustment or a change in its General Terms and Conditions of Business or a change to its services at least one month before the end of the contractual term, this shall constitute a termination of the contract subject to the previous terms and conditions at the end of the contractual term and an offer to contract under the current conditions and remuneration.
- The right to terminate for good cause remains unaffected.
- All notices of termination under this Contract shall be in text form.
- Upon termination of the contract, the Customer shall back up their data from the Provider's server to their own data carrier at their own expense.
- The deregistration of a trade does not constitute a special right of termination.
2.14 Rights of use, rights of the Provider in case of exceeding the scope of the rights of use
- The Customer shall receive the non-exclusive (non-sublicensable and non-transferable) right to use the Software, limited to the term of this contract, in accordance with the following provisions.
- The Software is not licensed to the Customer as en end user. The Customer is only permitted to use the Software for its own business activities with its own personnel and for advisory services by its own advisers.
- The Customer is not allowed to make changes to the Software. An exception is made for changes that are necessary for remedy faults, in as much as the Provider is in default with the remedy of the fault, or refuses to remedy the fault.
- In as much as the Provider creates new versions, updates, upgrades or other new deliveries with respect to the software during the contractual term, the foregoing rights shall also apply.
- The Customer is not entitled to rights which have not expressly been granted to the Customer. In particular, the Customer is not entitled to use the Application beyond the agreed use, or to allow third parties to use it. In particular, the Customer is not permitted to duplicate the Software, to sell the software nor to assign it for a limited period of time, in particular not to lease it or lend it out. The Software must only be made available to third parties for its own operational purposes.
- If the Customer violates the provisions of 2.12.1. of these Terms and Conditions for reasons for which he is responsible, the Provider can block the Customer's access to the Software or block the application data if it can be proved that the breach can be remedied. If the Customer is responsible for the breach of an obligation, the Provider can assert a claim for compensation for damages.
3.1 The subject matter of this section is the sale and delivery of goods by the Provider, irrespective of the platform through which it is offered.
3.2 Conclusion of contract, subject matter of contract and characteristics of our goods
- The Provider's offers are always subject to change, i.e. gastronovi reserves the right to withdraw the offer and/or offer new conditions in individual cases, e.g. due to delivery difficulties. A Contract between the Provider and the Customer only comes into effect when the Provider expressly confirms the Customer's order in text form or delivers the ordered goods.
- The subject matter of this contract depends on the offer, the Provider’s order confirmation in text form and these Terms and Conditions. If delivery of goods takes place without prior order confirmation, the delivery note is deemed to be the order confirmation. No verbal ancillary agreements have been entered into. All subsequent amendments, supplements or ancillary agreements to a contract must be made in text form.
- The properties and features stated in the offer and the order confirmation are deemed the agreed characteristics of the goods. Different or more extensive properties and features shall only be deemed to be the agreed characteristics if these have been expressly agreed with the Customer. The Provider points out that the illustrations, drawings, quality, quantity, weight, dimension and performance data contained in the offers and information material are merely approximations. A deviation of the delivered goods from these approximations within standard tolerances shall not entitle the customer to any claims for defects, warranty entitlements or claims for damages.
- Declarations concerning the characteristics and durability of the goods, with which the Provider grants the Customer additional rights without prejudice to the Customer's statutory claims shall only constitute a guarantee of characteristics and durability within the meaning of § 443 BGB if such declarations have been expressly stated as being a guarantee. In particular, in the case of deliveries of samples and specimens, their properties shall only be deemed to be guaranteed if they are expressly stated as being a guarantee.
- If the Provider assumes responsibility for the configuration of the hardware for the Customer, the Provider reserves the right to carry this out in whole or in part with the Customer's consent and within the scope of the separately concluded agreement on commissioned data processing by means of remote access to the delivered hardware.
- Hardware returns are generally excluded.
3.3 Delivery and passage of risk
- Partial deliveries are allowed provided that they are reasonable for the Customer.
- The location of the handover, the type of delivery and the passage of risk are governed by the contract concluded with the Customer in the individual case. Unless otherwise agreed, the Provider shall deliver to the agreed place of delivery in the particular case (DAP - Incoterms 2010). The passage of risk takes place upon delivery of the goods to the Customer or one of its employees.
- The delivery periods and -dates stated by the Provider are only binding if they are confirmed in text form and expressly stated as binding.
- In so far as the delivery is not provided or is not done so in conformity with the contract, the Customer shall set the Provider a reasonable grace period normally of at least 12 working days to effect the performance. If not, the Customer is not entitled to withdraw from the contract.
- Insofar as the Provider has concluded a congruent hedging transaction with its suppliers in good time, delivery periods or -dates agreed with the Customer shall also be subject to the Provider taking proper delivery on time.
- In so far as the delivery periods or -dates in cases of force majeure (i.e. unforeseen circumstances and events for which the Provider is not responsible and which were unavoidable with the due diligence of a prudent businessman, e.g. industrial disputes, wars, fire, transport impediments, a shortage of raw materials, measures by authorities), the Provider's obligation to deliver will be suspended for the duration and to the extent of their effect. This also applies if the Provider is already in default of delivery.
- In the cases mentioned under lit. e. and f., the Provider shall notify the Customer without delay and, at the same time, notify him of the expected, earliest available (rescheduled) delivery date. The Provider is entitled to withdraw from the contract if the Provider is likely to be prevented from fulfilling its delivery obligation and not only temporarily. The Provider is entitled to reimburse the Customer without delay for any consideration already paid to the Provider.
3.4 Prices and payments
- The Provider's prices do not include the applicable statutory value-added tax.
- The terms of payment of the hardware sale are stated in the order confirmation. Discounts or other deductions are excluded. If payment deadlines are not kept, you will be charged interest at an annual rate of nine (9) percentage points above the respective European Central Bank base rate. The Provider is entitled to demand from the Customer higher damages if the Provider is able to prove that he sustained a greater loss as a result of the payment deadline not being met.
- The Customer may only offset claims with counter-claims which are not under dispute or have final, res judicata effect. This does not apply for assertion of rights of retention or offsetting within the scope of performance and counter-performance.
- The assignment of non-monetary claims against the Provider requires the Provider's prior consent.
3.5 Retention of title
- The Provider retains title to the delivered goods ("goods subject to reservation of title") until the purchase price and all claims against the Customer arising from the business relationship (including claims not yet existing at the time of conclusion of the contract) have been settled in full. Title to the goods subject to reservation of title shall pass to the Customer with the payment of the purchase price and provided that there are no further claims arising from the business relationship with the Provider (current account reservation).
- The Customer is not entitled to dispose of the goods subject to reservation of title. The goods subject to reservation of title must not be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer shall inform the Provider in writing without delay if an application is made to open insolvency proceedings or if third parties have gained possession of the goods (e.g. Seized them) belonging to the Provider.
- In the event of Customer acting in breach of the contract, in particular in the event of non-payment of the purchase price due and payable, the Provider is entitled to withdraw from the contract concerning the purchase of the goods subject to reservation of title in accordance with the statutory provisions or/and demand the return of the goods on the basis of the reservation of title. The demand to surrender the goods does not amount at the same time to a declaration of withdrawal from the contract; the Provider is only entitled to demand the return of the goods and reserve the right to withdraw from the contract. If the Customer fails to pay the purchase price owing and due, the Provider may only assert these rights if it has set the Customer a reasonable deadline to make payment and this passed without success, or if, according to statutory provisions, such a deadline is not required. The Provider is entitled, after the surrender of the goods subject to reservation of title, to dispose of them at the Customer's expense, notwithstanding the Customer's payment and other obligations, by private sale or by means of an auction at the best possible price. The Provider shall offset the proceeds of the realisation against its liabilities towards the Customer after deduction of any costs incurred. The Provider will pay out any excess to the Customer.
- The Customer is obliged to keep the reserved goods carefully at its own expense, to insure them against theft, breakage, fire, water and other damage and to provide evidence of the conclusion of the insurance policy at the request of the Provider. Insurance claims as well as claims against third parties due to damage, destruction, theft or loss of the goods subject to reservation of title are hereby assigned by the Customer to the Provider in the form of a security. The Provider accepts this assignment.
- The Customer shall immediately inform us of any access by third parties to the goods subject to reservation of title after becoming aware of it, and to provide the Provider with all information and documents necessary to secure its rights to the goods subject to reservation of title. The Customer shall be liable for all costs incurred for removing access, in particular by filing a legal action against the third party, in as much as these costs cannot be recovered from the creditor seeking enforcement.
- At the Customer's request, the Provider is obliged to release the securities where their realisable value exceeds the Provider's outstanding claims against the customer by more than 10%. The Provider is free to chose which securities to release.
3.6 Rights and obligations in the event of defects
- The Customer must inspect the goods for defects immediately on arrival at the place of destination. The same obligation also applies if the Provider has previously sent samples or specimens to the Customer. The Customer must notify the Provider of any self-evident defects without delay but within 6 working days at the latest in written form. Where the defects are not self-evident, the Customer must notify the Provider without delay and no later than 6 working days following discovering in writing or in text form. Comments made on delivery notes do not constitute written objections. The date on which the notice is sent is sufficient for meeting the foregoing deadlines. If the Customer fails to inspect the goods and notify the Provider of the defect on time, the Customer will not be able to invoke the defect.
- In the case of a timely and justified notice of defect, the Customer is entitled to assert its rights pertaining to defects in accordance with the statutory provisions, but limited as per 3.5.3 and 3.6.4 below.
- If only some of the goods delivered are defective, the customer's right of withdrawal, if any, shall be limited to the defective goods. The same applies analogously if only a part of the goods is defective. This shall not apply if the defective goods or the defective part of the remaining goods cannot be separated from the other goods/parts without causing damage or loss of function or if this were to be unreasonable for the Customer. The Customer must set out the reasons why it would be unreasonable.
- The Customer does not have a right to withdraw in the case of a negligible defect.
- The rights and entitlements of the Customer in the event of defects to delivered goods are not subject to the prohibition of 3.4.3. .
- Transport damage must be reported to the courier service or freight forwarder without delay. The notification obligations of the German Freight Forwarders' Standard Terms and Conditions shall apply in this respect.
3.7 Limitations of liability, exclusion of withdrawal
- The Provider shall in any case be liable without limitation for damage to life, limb and health for which it is responsible, and regardless of fault in accordance with the Product Liability Act, provided that the statutory requirements are met.
- The Provider shall be liable for damages in the event of intent or gross negligence in the event of a breach of an obligation, the fulfilment of which is indispensable for proper execution of the contract in the first place and/or on the fulfilment of which the Customer would justifiably rely. With ordinary negligence, compensation shall be limited to typical, foreseeable damage.
- In other cases, claims for damages, irrespective of the legal grounds, against the provider shall be excluded, unless there is a grossly negligent breach of duty by the Provider, its legal representatives or persons used to perform its obligations.
- The rights of the Customer to withdraw from the contract due to a breach of duty for which the Provider is not responsible and which does not constitute a defect in the goods are excluded.
- In as much as the liability of the Provider is excluded or limited in accordance with the foregoing subsections, this shall also apply to the liability of its employees or persons it uses to perform its obligation(s).
- If the Provider has given a guarantee on the characteristics of the goods or that the object will retain a certain quality for a certain period of time or if the Provider has fraudulently concealed a defect, the Customer's statutory claims shall remain unaffected by the above limitations of liability.
3.8 Limitation periods
- The Customer's claims arising from a defect in the goods shall become time-barred one year after the passage of risk.
- The Customer's other contractual claims for a breach of duty shall become time-barred after one year. This does not apply to the Customer's right to withdraw from the contract due to a breach of duty for which the Provider is responsible and which is not due to a defect.
- Claims under a warranty also become time-barred after one year.
- Notwithstanding the foregoing 3.8.1. and 3.8.2. the statutory limitation periods shall apply to the following claims by the Customer:
- Claims for damages arising from product liability, for damages arising from injury to life, limb, health or a material contractual obligation, and for other damages based on an intentional or grossly negligent breach of duty by the Provider or persons used to perform its obligations,
- Claims for the reimbursement of expenses pursuant to § 478 (2) BGB,
- Claims due to the fraudulent concealment of a defect.
- Claims for defects due to a real right of a third party demanding the return of the purchased thing (§ 438 (1) No. 1 BGB).
- Claims of the Provider against the Customer become time-barred based on the statutory requirements.
4. Support and services
- The Provider shall provide support and other services to the extent agreed in the order confirmation.
- In addition to the General Terms and Conditions here, the latest version of the Support Terms and Conditions also apply to Support.
General Support terms and conditions.
- In addition to the General Terms and Conditions here, the latest version of the Work descriptions also apply to further services, here.
- Measures pertaining to warranty claims are not included under Support and services.
5. Data safety, data protection
- The parties shall comply with the applicable data protection provisions, in particular those applicable in Germany, and shall oblige their employees deployed in conjunction with the contract and its performance to maintain data secrecy pursuant to § 5 of the German Federal Data Protection Act (BDSG), in so far as they are not already under a general obligation to do so.
- If the Customer collects, processes or uses personal data, it warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify the Provider against claims by third parties in the event of a breach. To the extent that the data to be processed is personal data, a commissioned data processing shall apply. The Provider shall comply with the statutory requirements for commissioned data processing and follow the Customer’s instructions (e.g. to comply with erasure and blocking obligations). Further details are governed by the separately concluded agreement on commissioned data processing. Notification of the instructions must be made in writing and on time.
- The rights and obligations of the parties within the scope of the use of the Software are the subject of the agreement on commissioned data processing made for this purpose pursuant to § 11 BDSG.
- The Provider shall only collect and use Customer data to the scope required in order to perform this contract.
- The Provider shall provide interfaces within the Software in which the Customer in particular accesses data from third parties, exchanges data with third parties or stores data with third parties (see 2.1.7.). The Provider only provides one software interface in each case. The information and services provided across these interfaces are the third party information and services. By using these interfaces and opting for third party modules, the Customer accepts that data will be sent from the Software to the third party offering the particular services.
- The Contracting parties shall maintain secrecy with regard to all information to be treated confidentially which has come to their knowledge within the scope of this contractual relationship. The Parties shall only use such information vis-à-vis third parties - irrespective of the purpose - with the prior written consent of the other party. Information to be treated as confidential includes information expressly stated as confidential by the party providing the information as well as information the confidentiality of which is self-evident from the circumstances under which it was disclosed. The Provider must treat the application data in particular as confidential if it becomes aware of such data.
- The obligations under 6.1. shall not apply to such information or parts thereof for which the receiving party proves the following:
- That the data known to it or was generally accessible prior to taking receipt;
- The data was known to the general public or was generally accessible prior to taking receipt;
- The data was known to the general public or was generally available for which the receiving party was not responsible.
- The obligations pursuant to 6.1. shall continue to apply beyond the end of the contract for an indefinite period of time, as long as an exceptional circumstances pursuant to 6.2. are not proven.
7. Final provisions
- This contractual relationship is governed by German material law excluding the UN Convention on Contracts for the International Sale of Goods.
- The Software can only be used in Germany, Austria, Switzerland (the so-called DACH region) and France as described here. The Provider is not able to guarantee that the software works properly if used outside of these countries.
- If, when implementing this contract to practice, gaps in the contract arise for which the contracting parties have not provided, or if the provision is found to be invalid, the Parties shall undertake to fill this gap or replace this invalid provision in a factual, appropriate manner in line with the economic purpose of the contract.
- The exclusive place of jurisdiction for all disputes arising from or in conjunction with this Contract is Bremen, provided that the Customer is a merchant. The Provider remains entitled to bring an action or initiate other legal proceedings at the customer's general place of jurisdiction.
8. Sources / links
- Support Portal: https://support.gastronovi.com/en
- Price and module list: https://www.gastronovi.com/en/prices/
- Minimum requirements / Hardware & Software system requirements: https://support.gastronovi.com/en/basics/requirements
- General Support terms and conditions: https://www.gastronovi.com/en/support-terms-and-conditions/
- Services: services.gastronovi.com
- Provisions of SIM cards: https://www.gastronovi.com/en/terms-and-conditions/provision-of-sim-cards